14th Amendment & Preborn Persons

The Public Square
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The 14th Amendment to the Constitution requires equal protection of all persons, including babies in the womb. Federal legislation must abolish abortion.

A false, pseudo-originalist approach to constitutional interpretation would claim that the 14th Amendment does not protect the unborn because it was most immediately intended to protect Black Americans against discriminatory — unequal — treatment. But the amendment’s framers deliberately chose the broad term “persons” to empower Congress to protect any human being who might be denied due process or equal protection on any ground.

George & Craddock’s arguments here:

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And on the other side of the aisle, the 14th amendment is used to argue for codifying Roe.

Given Dobbs, the attempt to codify Roe would likely be ruled unconstitutional?

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I completely agree that this must be done. But I have a tactical question. Are there unintended consequences that follow on naturally from such actions, or from such actions pursued too quickly?

It’s not exactly analogous, but the attempt to punish Germany for the 1st World War led directly to the formation of the German government responsible for the 2nd World War.

Germany was wholly responsible for her sin, but Allied foolishness was also culpable for needless provocation.

Is there a danger in pushing too hard or too quickly for federal laws? Or am I misreading your intent? Please note I’m not questioning the legitimacy and even necessity of such a move. I’m asking a tactical question.

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I’m honestly just trying to understand how the 14th Amendment impacts abolishing abortion. Both camps are pointing to it as the reason for their position.

As to your questions, it is hard to consider a delay when babies are being murdered.

Yet, there may some good in allowing states to fight out bans, IVF, scientific research, and pharmaceuticals so as to have a more comprehensive federal law.

Or, perhaps a more detailed law would backfire. A codification of the equal protection and due process clauses of the 14th Amendment applying to persons in the womb might be enough…then the states can work out the specific details in the myriads of applications of that codification.

I don’t know.

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I completely agree. My own inclination is to push for as much as possible as quickly as possible.

I think that’s my concern. But is a hypothetical concern of enough weight to warrant delay, given the severity of the circumstances?

I’m also trying to figure out how to capitalise on the American momentum here in the UK. Sadly many Christian seem to have little to no understanding of why this ruling is so significant.

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An old debate from First Things on this question. Robert Bork dissenting.

Constitutional Persons: An Exchange on Abortion by Nathan Schlueter and Robert H. Bork | Articles | First Things

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I found both men’s arguments persuasive.

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You wrote:

… I’m also trying to figure out how to capitalise on the American momentum here in the UK. Sadly many Christian seem to have little to no understanding of why this ruling is so significant.

Partly the institutional arrangements. Abortion was legalised in the UK in 1967 via an Act of Parliament, not a Supreme Court ruling, and it would require another Act of Parliament to change things back. Also, the culture: in the UK, Christians are very much the minority, and we struggle to get any visibility in the public square.

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I’m less concerned about the public square or visibility and more concerned about Christians thinking and acting as Christians. The post-war generation of theologically conservative Christian leaders in the UK relegated abortion and sexual/reproductive ethics to the category of things indifferent. I’m trying to convince younger Christians today, as older Christians generally simply aren’t interested, that these issues very much matter. There are others who are doing this work much better and much more successfully than I am - this isn’t a prophet Elijah comment. But our primary problem is theological not governmental or cultural.

If Christians would again start thinking and acting like Christians, I can guarantee visibility would be the least of our problems.

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Perhaps the most concretizing route and a satisfactory solution for the two arguments—the restorationist argument (send it to the states, which is what Dobbs did) and the preborn persons argument (holding that the 14th Amendment’s use of “persons” already includes the preborn)—would be a new constitutional amendment that explicitly states that “persons” includes the preborn (from conception) and, therefore, due process and equal protection extends to them.

If it was hard to believe that Roe would be overturned, it is unfathomable to believe that states would ratify a 28th Amendment. We should probably start praying for it.

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I agree. Sorry, my comment was noncommital and cryptic.

I agree that a plain reading of the 14th Amendment and its language concerning the rights of persons would support a Supreme Court ruling protecting the unborn from conception.

The problem is that I am neither a lawyer nor a civil magistrate. Judges must approach the meanings of words in their historical context, not what it could be made to say.

I believe Judge Bork had the better of the argument concerning our legal history and tradition, which is what Dobbs was decided on. Our founding fathers and their sons and grandsons did not understand personhood to extend to sperm meeting egg and the zygote. This may have been because they were sinners, or that they lacked the scientific knowledge we have today.

Nonetheless I can’t fault modern day followers of Harry Jaffa, nor the Catholic integralist school of Vermeule and Amahri, for wanting American jurisprudence to be guided by natural law and a higher view of justice than simply faithfully interpreting texts and keeping our procedural hands clean. It’s very attractive to me.

I fear however that if we were to go this route, any decision a future pro life Court would hand down would be vulnerable to originalist and textualist attack, just as Roe was. Victory could easily become defeat.

Like you, I think the best answer is to amend the Constitution to make the status of the unborn clear.

My mind became more made up as I reflected on the rather open ended language of the 14th Amendment as regards persons, and how innovators of the past and present have used the open ended language to argue that, say, women must be granted the franchise, or those of the same sex must be married and given an equal chance at adopting children.

In fact, wisely in the case of the women’s vote, our forefathers decided to amend the Constitution rather than have the Supreme Court decree it. They remembered how the nation was driven to war by Dred Scott. Similarly, even with race based human bondage, we dealt with it as a people not through clever court decisions, but by amending the Constitution.

About half the states now have laws on the books restricting abortion to varying degrees. Pursuing ratification is monumental, but perhaps not so insane that we ought not try or pray for it.

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Men, Aaron is right. The entire future of abortion as well as much of the past is those abortions almost no one has the will to acknowledge and ban—abortions during first week or two of life. The idea that an amendment could be passed saying embryo the age of Jesus when John jumped for joy is person under the law is to me laughable. We should all spend our time and love working to get Christians to see the truth on this b/c, until they do, public square debates will remain fatuous. Read the paper, pls.

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@tbbayly
…We should all spend our time and love working to get Christians to see the truth on this b/c, until they do, public square debates will remain fatuous.

That is, our first priority needs to be to get our own house in order?

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Hanging our hopes on the 14th amendment is problematic, mostly because the 14th Amendment is problematic. The thing to remember about Federalism is that the constitution never granted police powers to any federal agency. In fact the crime of murder was never federally codified. I know we all like to act like that doesn’t matter because you know look at all the federal police agencies, but it does matter. Sometimes understandings are corrected. The Supreme Court decisions on the right to bear arms, on the overturning of Roe, and the restricting of executive branch rule making are prime examples. There has been a lot of damage done to our nation by the unintended consequences of things like the 14th Amendment.