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Is Abortion Already Illegal?

Because abortion is ultimately a question of basic human liberty and not just good or bad policy, I have never agreed with those conservatives who think “leaving it to the states” is a sufficient solution to the issue (though it would be far preferable to the anti-democratic status quo forced upon us by Roe v. Wade). I instead support a Human Life Amendment to the U.S. Constitution, to protect the right to life nationwide. States should be able to do many things, but treating certain classes of human beings as property is not among them.

However, until the HLA becomes reality, I have also been wary of banning abortion via an act of Congress, for fear of violating the boundaries of Congress’s enumerated powers under Article I, Section 8 of the Constitution. The 14th Amendment, which was enacted to guarantee political rights to newly freed black Americans after the Civil War, seemed to come close to authorizing Congress to ban abortion, but the language about “all persons born” was always a hang-up for me.

But is that really a barrier? After closer contemplation of the 14th Amendment’s language, I’ve concluded the answer is no. Here are the relevant passages in their entirety:

Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state 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 power to enforce, by appropriate legislation, the provisions of this article.

There’s no question that this empowers Congress to prevent states from treating their inhabitants unequally or depriving them of life, liberty or property. But do the unborn count among those inhabitants? Let’s go line by line:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

So whatever else you are, you’re not a US citizen until you’re born.

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; […]

When taken with the first sentence, this pretty clearly indicates that the unborn aren’t entitled to the full slate of “privileges or immunities” a citizen enjoys. So no guns or voting for fetuses. Sorry.

However, the sentence continues:

[…] nor shall any state 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.

“Nor” sets up another set of requirements, separate and distinct from the preceding clauses. Here, the amendment discusses protections applicable to “any person,” not “any citizen.” So while some legal protections and entitlements only come with American citizenship, others apply to every human being within our borders, regardless of their legal status.

This makes perfect sense. Legal rights are merely the terms of an agreement made by a particular group of people in their constitution, whereas natural rights are, according to the Declaration of Independence, God-given qualities possessed by every human being, which cannot be justly denied or violated by anyone.

There are obvious reasons why countries don’t want to have to give foreign nationals exactly the same legal protections and benefits as their citizens—for instance, we shouldn’t have to go through a full-blown jury trial every time we want to deport a violent illegal immigrant. But at the same time, we would never want to set the standard that people can do whatever they want to someone just because he’s not an American.

This certainly seems to fit with the original intent behind the measure—as President Ronald Reagan wrote in his famous essay, “Abortion and the Conscience of the Nation”:

When Congressman John A. Bingham of Ohio drafted the Fourteenth Amendment to guarantee the rights of life, liberty, and property to all human beings, he explained that all are “entitled to the protection of American law, because its divine spirit of equality declares that all men are created equal.” He said the right guaranteed by the amendment would therefore apply to “any human being.”

If the unborn are people—and from both scientific and philosophical perspectives, they clearly are—then the Constitution already requires that their right to life be protected, even without a new amendment explicitly saying so. Any state that prohibits the murder of fully-grown humans while allowing the murder of those in the womb is unconstitutionally discriminating against the latter.

All right-of-center observers agree that the Constitution doesn’t require the right to abortion, but the understanding I’ve just proposed—that the Constitution actually forbids it—is much rarer. Even Justice Antonin Scalia believes the Constitution is silent on the question. Further, conservatives tend to dislike enacting their policy goals through unelected courts on principle. For these reasons, pro-lifers should continue to support the Human Life Amendment anyway, so that when abortion’s long-overdue end finally does come, nobody can plausibly question its democratic legitimacy. But if we manage to save lives by convincing even a few courts that the right to life is an equal-protection issue, so much the better.

This post was originally published on Calvin Freiburger Online on July 1.

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