Abortion: A Historical Overview

Legislatures began protecting the lives of human beings in the womb long before American independence.REF During the 19th century, leading feminists such as Susan B. Anthony and Elizabeth Cady Stanton condemned abortion as “child murder,”REF and the American Medical Association launched a national campaign to combat the “unwarrantable destruction of human life.”REF As a result, by the 1960s, every state prohibited abortion, most allowing it only to save the mother’s life.REF

Abortion advocates pushed back, persuading 13 states to allow abortion in additional circumstances and four states to allow it for any reason during early pregnancy.REF Neither the older, near-complete abortion bans nor the more recent “reform” laws, however, survived Roe v. Wade.REF In 1973, the Supreme Court held that the word “liberty” in the Fourteenth Amendment’s Due Process Clause includes a woman’s right to decide “whether or not to terminate her pregnancy.”REF The Court then issued rules for protecting this right from different kinds of government interference at different stages of pregnancy.REF

Roe v. Wade. Roe v. Wade immediately became one the Court’s most controversial decisions, and the first constitutional amendment to reverse it was introduced in Congress just eight days later.REF Constitutional scholars, including those supporting abortion rights, called Roe “a very bad decision,”REF “barely coherent,”REF “totally unreasoned,”REF and “a raw exercise in judicial fiat”REF that “failed to yield a reasonable justification…for protection of the woman’s interest in terminating her pregnancy.”REF Rather than attempt to defend what the Court actually held, scholars have tried “rewriting”REF the decision or proposing “what Roe v. Wade should have said.”REF

Some abortion advocates, for example, argued that the Supreme Court should have based the right to abortion on the Fourteenth Amendment’s Equal Protection, rather than its Due Process, Clause. In lectures and interviews beforeREF and afterREF joining the Supreme Court, for example, the late Justice Ruth Bader Ginsburg opined that the Equal Protection Clause would have been a better choice. Nonetheless, in Planned Parenthood v. Casey,REF the Court reaffirmed that “[c]onstitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment.”REF While it had “reaffirm[ed] Roe v. Wade” itself in 1983,REF however, the Court in Casey adhered only to what it called Roe’s “essence,”REF that “it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy.”REF Roe’s “central holding,” that a woman has a constitutional right “to choose to have an abortion before viability,”REF survived.

Dobbs v. Jackson Women’s Health Organization. In Dobbs v. Jackson Women’s Health Organization,REF a Mississippi abortion clinic challenged a state law prohibiting most abortions after 15 weeks, more than two months before the generally accepted point of viability. Both sides agreed that the case required the Court not simply to apply Roe and Casey, but to “either reaffirm or overrule” those precedents.REF The Court chose the latter, overruling Roe and Casey in their entirety and holding that neither the Due Process ClauseREF nor the Equal Protection ClauseREF of the Fourteenth Amendment protects a right to abortion. In his majority opinion, Justice Samuel Alito wrote that Roe had been “egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”REF With no special constitutional status, the Court said, abortion can be restricted or prohibited “if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”REF

Dobbs “return[ed] the power to [regulate abortion] to the people and their elected representatives,”REF and pro-life advocates are encouraging state legislatures and Congress to expand legislative efforts to protect human beings before birth. State legislatures’ constitutional authority to do so, as they had done before Roe, is clear. Under the Tenth Amendment, states may exercise powers that are neither “delegated to the United States by the Constitution, nor prohibited by it to the States.” They have, for example, the power to provide for “[p]ublic safety, public health, morality, peace and quiet, [and] law and order.”REF This broad “police power” also includes regulating the medical profession.REF

Congress, in contrast, “can exercise only the powers granted to it” by the Constitution.REF America’s Founders intended these delegated powers to be “few and defined. Those which are to remain in the state governments are numerous and indefinite.”REF The powers delegated to Congress include those enumerated in Article I, Section 8, and the power to “make all Laws which shall be necessary and proper for carrying into Execution [these] Powers.”REF Congress can, for example, use its powers to “provide for the…general Welfare”REF or to “regulate Commerce…among the several States”REF to protect the unborn.

This Legal Memorandum examines whether Congress can also use its delegated power to enforce the Fourteenth Amendment for this purpose. It addresses three questions: (1) Are human beings before birth properly considered “persons” within the meaning of the Fourteenth Amendment? (2) If so, does Congress’ authority to enforce the Fourteenth Amendment include legislatively defining the unborn as Fourteenth Amendment persons? (3) What kind of enforcement legislation could Congress pursue to protect prenatal persons? The observations and conclusions about these complex questions offered here are necessarily tentativeREF and should be the basis for further debate, scholarship, commentary, legislative hearings, and, ultimately, judicial consideration.

Are Human Beings Fourteenth Amendment “Persons” Before Birth?

Two sections of the Fourteenth Amendment, each with a critical term, are relevant to this analysis.

• Section 1: “No State shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
• Section 5: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

The Wrong Answer: Roe v. Wade and Personhood. Roe v. Wade was first argued on December 13, 1971, when the Supreme Court had only seven members; Justices Hugo Black and John Marshall Harlan had retired three months earlier. A few months after their replacements, Lewis Powell and William Rehnquist, took the judicial oath, Justice Harry Blackmun proposed re-arguing the case. That re-argument took place on October 11, 1972. The question whether human beings before birth are Fourteenth Amendment persons was raised both in briefs and at oral argument, and the Court gave its answer in its final opinion.

Briefs of the Parties and Amici Curiae. Texas, for example, argued that “it would be a denial of equal protection of law not to accord protection of the life of a person who had not yet been born but [is] still in the womb of its mother.”REF In its amicus curiae brief, Americans United for Life similarly argued that every living human being is “a person within the meaning of the Equal Protection Clause” and that “permit[ting] the child in the womb to be killed in such a case improperly discriminates against him on account of his age and situation.”REF And in another amicus curiae brief, physicians, medical school professors, and fellows of the American College of Obstetrics and Gynecology argued that the “unborn offspring of human parents” is “a ‘person’ within the meaning of the Fifth and Fourteenth Amendments” and, therefore, “is entitled, like all other persons’ lives, to equal protection of the law.”REF

Oral Argument. During the Roe re-argument, one Justice suggested that whether the Fourteenth Amendment applies to human beings in the womb was the “basic constitutional question”REF in the case. Sarah Weddington, representing Jane Roe, conceded that she would have a “difficult case” if “it were established that an unborn fetus is a person within the protection of the Fourteenth Amendment.”REF Similarly, Texas Assistant Attorney General Robert Flowers asserted that “a fetus being within the concept of a person, within the framework of the United States Constitution and the Texas Constitution, is an extremely fundamental thing.”REF He agreed that he would lose the case “if the fetus or the embryo is not a person.”REF

Roe v. Wade’s Conclusion. Writing for the Supreme Court’s 7–2 majority, Blackmun stated that “[i]f this suggestion of [fetal] personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.”REF He concluded, however, that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”REF Blackmun, however, made no attempt to interpret the Fourteenth Amendment. Instead, he asserted that the word “person” in the Fourteenth Amendment does not include the unborn because its use in other constitutional provisions does not indicate “with any assurance that it has any possible pre-natal application”REF in those provisions.

Blackmun’s observation amounts to nothing more than acknowledging the obvious, that human beings cannot serve in Congress,REF as a presidential elector,REF or as PresidentREF until after they are born. In one of the first scholarly critiques of Roe by a scholar favoring abortion rights, Professor John Hart Ely suggested that “[the Court] might have added that most of [these other] provisions were plainly drafted with adults in mind.”REF Even then, a 23-year-old cannot serve in the House of Representatives, a 28-year-old cannot serve in the Senate, and a 33-year-old cannot serve as President.

No one could possibly think, however, that none of these individuals was a “person” within the meaning of the Fourteenth Amendment. Similarly, none of the uses of “person” elsewhere in the Constitution can apply to a corporation, but, as discussed below,REF the Supreme Court held nearly a century before Roe that a corporation is indeed a Fourteenth Amendment person. These other constitutional provisions use the word, writes Professor John Gorby, but “do not define ‘person,’” and Blackmun’s approach “offers nothing to support the Court’s conclusion that ‘person’ has only postnatal application.”REF In any event, with Roe now overruled, its flawed conclusion that human beings before birth are not Fourteenth Amendment persons no longer exists.

The Right Answer: Original Public Meaning and Precedent. The Fourteenth Amendment cannot properly be understood solely by observing how some of its terms are used in other constitutional provisions. Interpreting the Fourteenth Amendment itself requires examining both its original public meaning and relevant Supreme Court precedent.

Original Public Meaning. Justice Clarence Thomas has explained that the “judicial task” involves “interpret[ing] and apply[ing] written law to the facts of particular cases.”REF The first step is interpretation, or “determining what something…means.”REF Justice Ketanji Brown Jackson explained in her March 2022 Senate Judiciary Committee confirmation hearing that interpreting the Constitution requires determining its “original public meaning.”REF This is “the meaning that a knowledgeable and reasonable interpreter would have placed on the words at the time that the document was written.”REF

This approach, often called originalism, is necessary because, as the Supreme Court has repeatedly recognized, the Constitution’s “meaning does not alter. That which it meant when adopted it means now.”REF The Constitution’s meaning “is fixed according to the understandings of those who ratified it.”REF Focusing constitutional interpretation on “the authority that made it”REF helps “avoid an arbitrary discretion in the courts.”REF

Professor Michael Stokes Paulsen has examined whether including the unborn as Fourteenth Amendment persons is consistent with its original public meaning. His analysis examines constitutional text,REF history, precedent, and policy to assess the plausibility of prenatal personhood. Paulsen concludes that the “better answer…is yes.”REF His analysis follows:

• Text. “[T]he word’s usage in legal and political discourse, as well as common understanding, indicates that person was understood as synonymous with ‘human being’ or ‘human.’… In the main…‘person’ was simply an ordinary and encompassing word denoting any and all human beings.”REF Based on the textual evidence, “the better conclusion by far—indeed, the presumptively single-right-answer—is that the word ‘person’ as used in the Constitution includes the unborn.”REF
• Structure. Paulsen also examines the “logic, structure, and language of other provisions of the Constitution” for “general principles governing constitutional interpretation” and “any default rules for dealing with cases of linguistic ambiguity.”REF He exposes Blackmun’s “severely defective” reasoning in Roe in determining the meaning of “person” in the Fourteenth Amendment based only on its narrow uses in other provisions.REF Paulsen concludes that “the constitutional term ‘person’ has a range of meaning that plausibly could encompass the unborn.”REF
• History and “Original Intent.” The “original linguistic meaning of the words of the text itself,”REF Paulsen writes, is different from “the expected consequences,” “subjective intentions,”REF or “what the drafters had in mind.”REF Still, while not dispositive, “intention…is at least relevant evidence for constitutional interpretation.” While the framers of the Fourteenth Amendment did not “have…abortion in mind at all when writing the amendment,”REF it is “reasonably clear that the framers of the Fourteenth Amendment drew no distinction as a factual or legal matter between legal persons and biological human beings.”REF
• Precedent. In Roe, Blackmun claimed that the Court’s holding against Fourteenth Amendment fetal personhood was “in accord with the results in those few cases where that issue ha[d] been squarely presented.”REF Paulsen, however, cites a decision by a three-judge federal court, which Blackmun failed to cite, that addressed the issue more directly than others. The court held that “[o]nce human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it.”REF Paulsen concludes: The “constitutional meaning of the word person in early judicial interpretation,”REF as well as “functional interpretations” by state legislaturesREF and non-judicial “instrumentalities of the national government”REF was that “unborn human life was deserving of legal protection against destruction.”REF
• Policy, Pragmatics, Evolving Meaning, Etc. Paulsen notes that, while this “cluster of criteria…does not involve interpretation of the constitutional text,”REF it was the basis of “Roe v. Wade itself…. Roe was primarily if not entirely a decision of judicially devised abortion policy.”REF Even if one follows an “‘evolving-meaning’” approach to interpretation, Paulsen argues, the advancing state of medical and scientific knowledge provides “a fairly compelling…policy argument for a broad understanding of person as including the unborn.”REF Simply put, “[w]e know, if we did not know before, that the being gestating in the mother’s womb is the same biological human organism—the same human being—as he or she will be after birth.”REF And, Paulsen writes, “it seems especially absurd in light of scientific knowledge to draw the personhood line at birth.”REF
• Conclusion. “Text, structure, history, precedent, and policy do not point to an absolutely clear, unambiguous, indisputable answer to the question of whether the Fifth and Fourteenth Amendment’s protections of the rights of persons extend to the unborn…. [I]f forced to choose between the alternatives, the weight of the evidence and reasoning far more strongly supports the personhood position than rejects it.”REF

Professors John M. Finnis and Robert P. George also explored the original public meaning of the Fourteenth Amendment in an amicus curiae brief filed in Dobbs. They examined the legal foundations of the Fourteenth Amendment including the common law, treatises such as William Blackstone’s Commentaries on the Laws of England, and English and early American state court decisions. They cite, for example, Hall v. Hancock,REF in which the Massachusetts Supreme Judicial Court unanimously held in 1834, as a “fixed principle,” that “a child will be considered in being, from conception to the time of its birth, in all cases where it will be for the benefit of such child to be so considered.”REF Finnis and George conclude: “The original public meaning of ‘persons’ encompassed all human beings.”REF

Supreme Court Precedent. Two lines of Supreme Court precedent support this view of the Fourteenth Amendment’s original public meaning by rejecting categorical or arbitrary distinctions. The first group of precedents, which Professor Paulsen considers “the most relevant pre-Roe constitutional precedents construing the word person,”REF concerns the distinction between corporations and “natural” persons. These precedents support the proposition that the category of Fourteenth Amendment persons is not limited to human beings at all. The Supreme Court has long rejected such categorical distinctions under either the Fifth or Fourteenth Amendment, recognizing corporations as persons within the meaning of constitutional provisions that are suited for their inclusion.REF Some examples:

• Dartmouth College v. Woodward.REF King George III of Great Britain granted a charter to Dartmouth College in 1769. The Supreme Court rejected an attempt by college trustees to make the college a public institution by altering its charter. Chief Justice John Marshall wrote for the majority that a “corporation is an artificial being” that possesses some rights also held by “natural persons.”REF
• Santa Clara County v. So. Pacific Railroad Co.REF Railroads successfully challenged a state law giving more favorable tax treatment to assets owned by corporations than those owned by individuals. Before the oral argument, Chief Justice Morrison Waite stated: “The [C]ourt does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”REF

In a second line of precedents, the Supreme Court rejected arbitrary distinctions among human beings. Some examples:

• Levy v. Louisiana.REF Five illegitimate children sued under state law for the wrongful death of their mother. The Louisiana courts dismissed the suit, interpreting “child” in the relevant statute to mean “legitimate child.” The Supreme Court reversed, Justice William O. Douglas writing for the majority that “[w]e start from the premise that illegitimate children are not ‘nonpersons.’ They are humans, live, and have their being.’ They are clearly ‘persons’ within the meaning of the Equal Protection Clause of the Fourteenth Amendment.”REF
• Weber v. Aetna Casualty & Surety Co.REF A man who died from injuries received on the job had four legitimate and two unacknowledged illegitimate children, one of whom was born after his death. A state statute defined “children” to exclude unacknowledged illegitimate children, which it deemed “other dependents,” for purposes of receiving workers’ compensation benefits. The Supreme Court held that this distinction amounted to “impermissible discrimination”REF that violated the Fourteenth Amendment’s Equal Protection Clause. Justice Lewis Powell, writing for the 8–1 majority, ignored any distinction between children before or after birth, focusing instead on the fact that they were all dependent children, the category that the statute was enacted to help.REF
• Linda R.S. v. Richard D.REF Decided just weeks after Roe, this case involved a Texas statute that made a parent’s desertion, neglect, or refusal to provide support for a minor child a misdemeanor punishable by up to two years in jail. The mother of an illegitimate child whose father refused financial support filed a class action challenging the construction of this statute to apply only to legitimate children. While the Supreme Court dismissed the suit for lack of standing, Justice Byron White, joined by Douglas, argued that excluding illegitimate children and their mothers renders them Fourteenth Amendment “nonpersons.”REF

These precedents are consistent with the Fourteenth Amendment’s original public meaning, that “person” includes all human beings. Together, they counsel a broad, practical meaning for “person” as including those to whom the text can apply and, adapting the court’s words in Hall v. Hancock, “where it will be for [their] benefit…to be so considered.”REF

May Congress Define “Person” to Include Human Beings Before Birth?

A good case can be made, consistent with its original public meaning, that all living human beings are “persons” within the meaning of the Fourteenth Amendment. As Professor Paulsen writes, however, the “plausibility of personhood only gets you so far. That the word ‘person,’ as used in the Constitution in the Fifth and Fourteenth Amendments, is broad enough to embrace human beings before birth does not, by itself, say anything specific about what the precise legal regime must be with respect to abortion.”REF Because, as noted above, there currently exists no Supreme Court precedent on whether the unborn are Fourteenth Amendment persons, the next question here is whether Congress can legislatively define them as such for purposes of enforcing the Fourteenth Amendment.

Section 5 of the Fourteenth Amendment is “a positive grant of legislative power” to CongressREF but is textually limited to the power to “enforce” Section 1 of the amendment. In early cases, the Supreme Court described that authority in broad terms. In Ex parte Virginia,REF only a dozen years after the Fourteenth Amendment’s ratification, the Supreme Court offered this description:

Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.REF

City of Boerne v. Flores. In the last few decades, however, the Supreme Court has taken a more refined view, emphasizing that enforcement legislation must be “remedial” rather than “substantive.” In City of Boerne v. Flores,REF for example, the Court held that Congress could not use its Section 5 enforcement authority to apply the Religious Freedom Restoration Act (RFRA) to the states because RFRA sought to change the Supreme Court’s substantive interpretation of the First Amendment’s free exercise of religion clause.REF Congress, Justice Anthony Kennedy wrote for the majority, “has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.”REF

City of Boerne, however, would not prevent Congress from legislatively establishing that the unborn are Fourteenth Amendment persons. Doing so addresses to whom the Fourteenth Amendment rights to due process and equal protection belong but says nothing about the meaning or application of those rights to them. And unlike in City of Boerne, legislatively defining the unborn as Fourteenth Amendment persons would not conflict with any Supreme Court precedent because no precedent on that question exists. Doing so would instead be an example of, as Professor Paulsen describes it, Congress making “interpretive choices falling within the range of the text’s meaning in the course of”REF enforcing the Fourteenth Amendment. This approach would be more effective than Congress’ previous attempts to define the unborn as Fourteenth Amendment persons.

The Human Life Bill. In January 1981, as the 97th Congress opened with a new Republican majority, Senator Jesse Helms (R–NC) introduced S. 158, the Human Life Bill (HLB). Roe v. Wade, of course, was then the prevailing precedent on abortion. The Senate Judiciary Subcommittee report on this bill explained that, by asserting a contrary position regarding the Fourteenth Amendment’s purpose and by deeming human life to begin at conception, the HLB was intended to “encourage the Court to reexamine the results and the reasoning of Roe v. Wade.”REF

While the HLB did not have a section formally labeled “findings,” as many bills do, these statements were phrased that way, as assertions rather than substantive legislative provisions. This is important because it is unclear whether, or how, such statements are binding. They are considered “valid law published in the Statutes at Large, which contain the law as passed by Congress and signed by the president.”REFAt the same time, “it is common practice for a bill to be stripped of its findings and purposes before the rest of the statute is placed in the main text of the US Code.”REF

Sanctity of Life Act. Another bill has been introduced as the Sanctity of Life Act (SLA). One version, introduced in 10 Congresses since 1995, finds that “actual human life exists from the moment of conception,” and declares that “‘person’ shall include all human life.” It would also withdraw federal court jurisdiction over challenges to pro-life statutes, ordinances, regulations, or practices. In general, however, withdrawing such jurisdiction for future cases does not affect precedents that already exist. In any event, now that Roe v. Wade has been overruled, legal challenges to pro-life laws will primarily be brought in state, rather than federal, court.

These bills did not identify Congress’ specific authority to enact them. One of them, H.R. 2087, introduced in 1995, cited Congress’ authority to enforce the Fourteenth Amendment.REF The others, however, referred generally to the “powers of Congress”REF or to various individual provisions.REF Another version of the bill declares that “the right to life guaranteed by the Constitution is vested in each human being,” but neither identifies the basis for this right nor contains any operative provisions at all. Its content, therefore, is more suitable for a “simple resolution.”REF Because resolutions “are not used to make law…[they] do not require the approval of the other house of Congress”REF and need not establish Congress’ constitutional authority to enact them. Simple resolutions have many uses, including declaring the “sense of the House” or “sense of the Senate” on a particular topic.REF

How Can Congress Enforce the Fourteenth Amendment to Protect the Unborn?

There exists a sound argument that defining “person” in the Fourteenth Amendment to include human beings before birth is consistent with its original public meaning. There is also a sound argument that, in the absence of a contrary Supreme Court precedent, Congress can legislatively establish that definition for purposes of its power to enforce the Fourteenth Amendment. The final question, then, is the form and content of Fourteenth Amendment enforcement legislation by which Congress can actually protect persons before birth.

The late Professor Ronald Rotunda wrote that Congress can “enact legislation to protect individuals from state action that violates the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment,”REF including providing for causes of action against states.REF The Supreme Court has upheld this approach under Congress’ similar authority to enforce the Fifteenth Amendment. In Raines v. United States,REF the Court upheld the provision in the Civil Rights Act of 1957 giving the Attorney General authority to sue for “preventive relief” whenever “any person has engaged in or…is about to engage in any act or practice which would deprive any other person of any right or privilege secured by” the Voting Rights Act. The Court held that the discriminatory conduct charged in that case was “‘state action’…subject to the ban of that Amendment, and that legislation designed to deal with such discrimination is ‘appropriate legislation’ under it.”REF

Due Process Clause vs. Equal Protection Clause. If a cause of action is the desirable form of enforcement legislation, there remain two substantive issues that must be addressed in drafting actual legislation. The first is whether such legislation should enforce the Fourteenth Amendment’s Due Process Clause or Equal Protection Clause.

Due Process Clause. As the Supreme Court noted in Raines, the Fourteenth Amendment is a limitation on government action.REF Constitutional rights, therefore, are negative rights, that is, rights to be free from certain government actions. As Judge Richard Posner explains, the Constitution “is a charter of negative rather than positive liberties…. The Fourteenth Amendment…sought to protect Americans from oppression by state government, not to secure them basic government services.”REF The goal of enforcing the Fourteenth Amendment to protect prenatal persons, however, is not to limit government action, but to compel such action in the form of laws prohibiting abortion. Focusing on the Due Process Clause for this purpose would require a positive right, that is, a right that imposes an obligation on government to act in a particular way. The Supreme Court has held, however, that this concept of rights is inconsistent with the Fourteenth Amendment.

In DeShaney v. Winnebago County Dept. of Social Services,REF the mother of a boy injured by his father sued social workers, claiming that the boy’s Fourteenth Amendment right to “liberty” obligated them to remove him from his father’s custody. This case, Chief Justice William Rehnquist wrote, “is one invoking the substantive rather than the procedural component of the Due Process Clause” by claiming that government was “obligated to protect him in these circumstances.”REF The Court voted 8–1 to reject this view of the Fourteenth Amendment, stating:

The [Due Process] Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.REF

The Supreme Court has recognized the same principle when upholding laws that prevent public funds from subsidizing abortion. In Harris v. McRae,REF for example, the Court upheld the Hyde Amendment, which prohibits using Medicaid program funds to reimburse the cost of abortions. The Court held that the Due Process Clause protects against “unwarranted government interference” with a right or liberty but “does not confer an entitlement to such [government aid] as may be necessary to realize all the advantages of that freedom. To hold otherwise would mark a drastic change in our understanding of the Constitution.”REF

In Dobbs, Justice Brett Kavanaugh joined the majority opinion overruling Roe and Casey and wrote a concurring opinion to explain further his views on “why Roe should be overruled at this time, and the future implications of today’s decision.”REF Noting that some amicus curiae briefs filed in the case urged the Court to “hold that the Constitution outlaws abortion throughout the United States,”REF Kavanaugh observed that “[n]o Justice of this Court has ever advanced that position” and concluded that this position is “wrong as a constitutional matter.”REF The Fourteenth Amendment’s Due Process Clause, therefore, raises difficult issues that, at least at this time, may make the Equal Protection Clause, which is discussed next, a more useful basis for Fourteenth Amendment enforcement legislation.REF

Equal Protection Clause. Legislation enforcing the Fourteenth Amendment’s Equal Protection Clause does not involve such challenging issues but relies on more familiar concepts. The Supreme Court has held that states may not “legislate that different treatment be accorded to persons by a statute into different classes on the basis of criteria wholly unrelated to the object of that statute…. ‘[A]ll persons similarly circumstanced shall be treated alike.’”REF Providing for a cause of action against states that treat differently classes of human beings with regard to protecting their lives would be consistent with this principle.

Cases alleging unequal treatment typically involve a single statute that applies differently to similarly situated parties. The same basic principle, however, would apply to states that have laws protecting the lives of some human beings but not others. Concurring in Bell v. Maryland,REF Justice Arthur Goldberg wrote that “‘[d]enying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for protection.’”REF In other words, “state conduct which might be described as ‘inaction’ can nevertheless constitute responsible ‘state action’ within the meaning of the Fourteenth Amendment.”REF

Pro-life advocates have long argued that human beings are in the same situation, both before and after birth, with respect to their need for the government to protect their lives. Protecting the lives of some human beings but not others, therefore, may violate the Fourteenth Amendment’s requirement of equal protection.REF

• In Roe, Texas argued that “it would be a denial of equal protection of law…for either the state or federal government to distinguish between a person who has been born and one living in the womb of its mother.”REF
• Professor Charles Rice wrote in 1973 that if a state “punishes as homicide the intentional, unjustified killing of persons, and if the state authorities adopt a policy of not prosecuting for the killing of unborn persons while prosecuting for the killing of all other classes of persons, it is fair to say that such official inaction denies the child in the womb the equal protection of the laws.”REF
• Professor Paulsen writes that recognizing all human beings to be Fourteenth Amendment persons would mean that unborn persons “would be constitutionally entitled to…[legal] protection equal to that afforded other persons in comparable situations.”REF
• In their amicus curiae brief in Dobbs, Professors George and Finnis argue that human beings before birth are Fourteenth Amendment persons and that the amendment “codified equality in the fundamental rights of persons.”REF
• Three weeks before the Supreme Court overruled Roe, Professor George and Josh Craddock wrote in the Washington Post that “[b]ecause state laws allowing elective abortion necessarily deprive a class of human beings—those at the earliest stage of development—of ‘the equal protection of the laws,’ they violate constitutional rights.”REF

Ironically, Sarah Weddington, Jane Roe’s attorney, acknowledged the same point during the Roe re-argument. She agreed that, if human beings before and after birth were similarly Fourteenth Amendment persons, abortion would be “the equivalent after the child was born if the mother thought it bothered her health having the child around, she could have it killed.”REF In other words, recognizing all human beings as Fourteenth Amendment persons would require that they be similarly protected under the law.

Examples of discriminatory or unequal treatment of prenatal persons abound. According to the National Conference of State Legislatures, 38 states prohibit fetal homicide by applying their general homicide statutes before, as well as after, birth. California law, for example, defines murder as “the unlawful killing of a human being, or a fetus, with malice aforethought.”REF The statute, however, excludes “an act that results in the death of a fetus” by abortion.REF Since abortion is currently legal in California, therefore, the law treats prenatal victims of abortion differently from both persons after birth and prenatal persons killed by means other than abortion.

Fundamental Right vs. Suspect Class. The Fourteenth Amendment’s Equal Protection Clause, therefore, provides a sound basis for enforcement legislation aimed at protecting the lives of prenatal persons. Congress could enact a statute that defines the unborn as Fourteenth Amendment persons and authorizes a cause of action by the Attorney General against states that treat persons before and after birth differently with respect to laws protecting their lives. The final substantive question is how, if enacted into law, courts would handle a cause of action brought under such a statute. Since every law makes distinctions of some kind, courts will apply a legal standard based on the relationship between a statute’s purpose and the disparate treatment it uses to achieve that purpose. “As in all equal protection cases…the crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment.”REF

“Mere Rationality” v. “Strict Scrutiny.” To prevent courts from simply replacing legislatures’ policy decisions with their own, most laws challenged under the Equal Protection Clause need meet only a lenient standard. They will be upheld if there is “some rational relationship between disparity of treatment and some legitimate government purpose.”REF A legislative distinction that “operates to the disadvantage of some suspect class or impinges upon a fundamental right,”REF however, does not have a “presumption of validity.”REF It will be struck down unless the unequal treatment is a “narrowly tailored”REF or “necessary”REF means to achieve a “compelling” government purpose.REF This standard is typically called “strict” or “exacting”REF scrutiny.

A cause of action against states that protect the lives of human beings after, but not before, birth or that prohibit feticide but not abortion, therefore, will be more likely to succeed if that unequal treatment is subject to strict scrutiny rather than “mere rationality”REF review. Professor Steven Calabresi argues that “Congress has the power to interpret Section 1 of the Fourteenth Amendment when it is legislating to enforce it under Section 5…before the Supreme Court has identified [Section 1 rights], so long as at the end of the day, the Court agrees that the rights in question are encompassed in the meaning of Section 1.”REF The Court in Boerne also acknowledged that Congress should have “wide latitude” regarding the line between remedying a constitutional violation and substantively changing the law.REF That latitude should be widest when Congress exercises its judgment in the absence of any Supreme Court precedent. Congress might, therefore, enact legislation that, for purposes of enforcing the Fourteenth Amendment, defines all human beings as Fourteenth Amendment persons, establishes a fundamental right to life, and provides for a cause of action against states that treat persons differently with respect to that fundamental right.REF

Conclusion

The Fourteenth Amendment protects the rights of “any person” to due process when a state deprives him or her of life, liberty, or property, and to the “equal protection of the laws.” By overruling Roe v. Wade, the Supreme Court eliminated Roe’s deeply flawed holding that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”REF Since a sound case can be made that interpreting “person” to include all human beings is consistent with the Fourteenth Amendment’s original public meaning, Congress should do so for purposes of its power to enforce the Fourteenth Amendment.

The Fourteenth Amendment’s Equal Protection Clause is more suitable than the Due Process Clause as a basis for enforcement legislation and Congress may create a cause of action by the Attorney General against states that deny to prenatal persons the equal protection of the laws. This occurs when a state prohibits killing a person after—but not before—birth or prohibits killing prenatal persons in some circumstances but not others.

The success of this strategy will depend on the legal standard the courts will apply. In the absence of contrary Supreme Court precedent, Congress can, for purposes of its Fourteenth Amendment enforcement power, legislatively recognize a fundamental right to life for Fourteenth Amendment persons or recognize prenatal persons as a suspect class. Either approach prompts the courts to apply strict scrutiny, requiring states to show that failing to prohibit abortion is the least restrictive means of achieving a compelling government purpose.

Congress can strengthen this and other pro-life legislative goals, as well as contribute to success in litigation challenging them, by establishing a comprehensive record on key issues including:

• The original public meaning of the Fourteenth Amendment;
• America’s history and tradition of increasing legal protection for prenatal life;
• The medical and scientific consensus that, as Texas argued in its Roe brief, “human life is a continuum, which commences in the womb…. The child is as much a child in those several days before birth as he is in those several days after;”REF
• The many ways that the law recognizes human beings before birth as legal persons with rights, undermining the rationality of leaving unborn persons without legal protection for their lives; and
• The foundation for, and implications of, recognizing a substantive constitutional right to life.

Justice Lewis Powell offered a principle that is especially poignant here: “The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to [another person]. If both are not accorded the same protection, then it is not equal.”REF

Thomas Jipping is Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.