The Fourteenth Amendment and the Personhood of the Unborn
The Palmetto Freedom Forum, held on September 5, 2011, allowed the GOP presidential candidates a forum to reflect upon and engage in “first principles.”
Here is the question asked by Professor Robert P. George:
Many believe that we need a constitutional amendment to overturn Roe v. Wade. However, Section Five of the Fourteenth Amendment expressly empowers the Congress, by appropriate legislation, to enforce the guarantees of due process and equal protection contained in the Amendment’s first section.
As someone who believes in the inherent and equal dignity of all members of the human family, including the child in the womb, would you propose to Congress appropriate legislation, pursuant to the Fourteenth Amendment, to protect human life in all stages and conditions?
It is a thoughtful question, and I’m glad Professor George asked it. The reason he chose this question was because he wanted the candidate to reflect on three interrelated issues: “(1) our obligations to human life in the era of Roe v. Wade; (2) the relationship of federal to state power in our federalist system when it comes to protecting basic rights; and (3) the options available in the face of judicial edicts that violate constitutional principles, as the Roe decision infamously did, by usurping the authority of the people acting through their elected representatives.”
You can read his later reflections on the candidates’ responses and on criticisms he received for asking it.
Why did he ask about Congress rather than the Supreme Court? Perhaps in part because the Supreme Court has repeatedly ruled on this interpretation, and ruled against it.
Clarke Forsythe, Senior Counsel for Americans United for Life, explains in his very good book Politics for the Greatest Good: The Case for Prudence in the Public Square why it will be virtually impossible to see the Court reversing itself in the foreseeable future. Here is the relevant excerpt from an interview I conducted with him a couple of years ago:
The Fourteenth Amendment says that no state may “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.” Roe declared that an unborn child is not a “person” protected under the Fourteenth Amendment. Some pro-life advocates would like to see the Court revisit this holding. Why, in your view, is that improbable?
It is not simply “improbable” but almost certainly impossible in our lifetime.
That’s because every single justice since Roe has rejected it (the proposition that the unborn child is a “person” within the meaning of the Fourteenth Amendment), including the most anti-Roe justices, Justice Scalia and Justice Thomas. And Scalia and Thomas have rejected it for at least two or three reasons.
First, the words “abortion” and “unborn child” are not in the Constitution; they weren’t specifically considered by the framers of the 14th Amendment.
Second, Justice Scalia and Thomas believe that the abortion issue was and is an issue for the states to decide, as a constitutional matter.
The third is perhaps the most powerful and the one most often ignored by pro-lifers: Scalia and Thomas want the Court out of the “abortion-umpiring business,” which they think has undermined the integrity of the Court as a constitutional and political institution. The declaration that the unborn child is a “person” within the meaning of the 14th Amendment would not extract the Court but thrust it more deeply into the “abortion-umpiring business.”
So, for both constitutional and institutional reasons, Scalia and Thomas have at least implicitly rejected 14th Amendment “personhood,” and it’s almost certain that any justice nominated by even a pro-life president and confirmed by the Senate in the next 20 years will be heavily influenced by the reasoning of Scalia and Thomas. We don’t have to agree with that, but we do need to understand it.
As a practical matter, then, some President would have to nominate, and the Senate confirm, at least six justices who are willing to adopt what Justices Scalia and Thomas have rejected. That might happen in 2050, if, between now and then, Roe is overturned and a majority of states enact and enforce prohibitions on abortion, thereby exhibiting a national political culture that opposes all abortion. But that’s not political reality in 2010.
Last but not least, federal constitutional “personhood” was argued to the Supreme Court by Texas and Georgia in the oral arguments in 1971 and 1972 leading up to the Roe decision in 1973, and has been argued to the Supreme Court, in legal briefs, at least 25 times since Roe. So, it’s not a new argument that the Court hasn’t heard before.
Again, Professor George’s question is different and intriguing. It will be interesting to see how this plays out in the cause for life.