“No state shall deprive” became “Every state shall deprive.” That’s how we got abortion on demand in America.
By Paul Stark,Minnesota Citizens Concerned for Life
National Right to Life
In 1868, in the wake of the Civil War, the Fourteenth Amendment was added to the U.S. Constitution. It affirms (in part): “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.”
More than a century later, this amendment played the feature role in the U.S. Supreme Court’s Roe v. Wade decision, which asserted a constitutional right to abortion and erased laws protecting unborn children nationwide.
One question at issue in Roe was this: Does the meaning of “person” in the Fourteenth Amendment encompass all members of the human species? Does it therefore encompass unborn children? If so, the Constitution guarantees them protection under the law.
Indeed, “If this suggestion of personhood is established,” Roe acknowledged, “the [case for a constitutional right to abortion], of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.”
Roe claimed, however, that the unborn don’t qualify as constitutional persons. Why not? The Court’s reasoning was remarkably flimsy. It argued that most other references to persons in the Constitution (such as a provision about persons eligible to serve in Congress) have no prenatal application—so “person” must not be meant to include the unborn.
But that obviously doesn’t follow. Most provisions in the Constitution don’t apply to born children, either, and clearly children were understood to be persons.
The Court ignored the fact that dictionaries of the day defined “person” and “human being” interchangeably. It ignored the intentions of the Fourteenth Amendment’s framers, like main author John Bingham, who said the amendment protects “any human being” and is “universal.”
And the Roe Court tried to dispute, unsuccessfully, the fact that both statutory laws and common-law history recognized unborn children as human beings deserving of protection. Most states at the time of the amendment literally classified abortion as an “offense against the person.”
Admittedly, not all legal scholars and judges who aim to interpret the law as it is (regardless of their own ideas about what the law should be) have thought that unborn children are persons within the meaning of the Fourteenth Amendment. But the Roe Court didn’t just deny that the Constitution requires protection for the unborn. It claimed that the Constitution actually forbids protection for the unborn.
And where in the Constitution, according to the Court, is this prohibition found? The Fourteenth Amendment.
The Court said that the amendment’s Due Process Clause includes an implicit “right of privacy” that encompasses a right to abortion. Even assuming a broad realm of privacy, though, many “personal” matters (uncontroversially) are not protected by it. So why is abortion protected? Well, Roe explained, a prohibition on abortion can be a “detriment” to a woman. But the same can be said of countless acts that are not exempt from the possibility of legal restriction.
And this is all the justification Roe could offer. Thus the Court had no valid reason to think there’s a right to abortion. Worse, the purported right is refuted by the very people who adopted the Fourteenth Amendment.
