When the Supreme Court overruled Roe v. Wade (pdf), most of the outrage came from those who believe the U.S. Constitution protects abortion rights. However, a few argued that the Constitution mandates a national standardย forbiddingย abortion.
This essay explains why those who claim the Constitution forbids abortion are as much in error as those who think it legalizes abortion.
I have a long history of advocating for pro-life causes. But thereโs a difference between my political preferences and what the Constitution actually says. Respecting what the Constitution actually says is key to the rule of lawโnecessary, in turn, for a free society. If we disagree with the Constitution, we should work to amend it. We should not fall into the leftโs corrupt practice of pretending the Constitution says what it doesnโt.
The Case for the Unconstitutionality of Abortion
The arguments for the view that the Constitution bans abortion have been set forth as follows:
First: Itโs a scientific fact that humanity begins at the moment of conception.
Second: A human being is therefore a โpersonโ as the Constitution uses the term.
Third: The Constitutionโsย Fifthย and theย 14thย Amendments each contains a Due Process Clause stating that no โpersonโ shall be deprived of โlife โฆ without due process of law.โ
Fourth: Just as slavery was a national moral issue rather than a statesโ-rights issue, abortion also is an issue of national morality.
Letโs examine each of these arguments.
Argument #1: โHumanity begins at the moment of conceptionโ
The essence of theย Roeย decision was that it was unconstitutional for a state to protect an unborn child, against the wishes of the mother, before the child could survive outside the womb. Although the court purported not to decide when human life begins, its ruling assumed that a fetus necessarily dependent on the mother is only โpotentiallyโ human.
This ruling was absurd: Oneโs humanity isnโt solely a function of dependence or independence. If it were, then Americaโs large dependent population would be deemed non-human.ย Roeโsย absurdity illustrates that judges are unequipped to make decisions of this kind.
But the fact that humanity isnโt solely the result of independence doesnโt prove that itโs solely the result of conception either. Exactly when life becomes human is a subject on which reasonable and informed people disagree. Some would place the critical moment at the time of conception; others at the time when cells differentiate from each other, or at the time of implantation, or when (and if!) the brain begins to function, or when the fetus has a heart, or when the soul enters the body. Science offers plausible answers and rules out implausible ones, but it doesnโt give usย theย answer.
In this respect, the question of when humanity begins resembles the question of when it endsโthat is, when death occurs. Thereโs a point in time when we can say a person is definitely alive and a point when we can say a person is definitely dead, but thereโs often a twilight zone between the two. To a lesser extent, the question of when humanity begins resembles the issues of when a person ceases to be a child and becomes an adult, or is mentally competent or incompetent.
In a democratic society, the answers to such questions are provided by the peopleโs freely elected representatives, acting under spiritual, scientific, and popular guidance. When legislatures delegate discretion to physicians and other providers (as they often do), they still impose legal guidelines.
Admittedly, decisions of this kind can be difficult. However, their difficulty argues for their being products of an open, democratic, and deliberative process. Not the results of abstract reasoning or judicial decree.
Argument #2: โThe Unborn are โPersonsโ Under the Fifth Amendmentโ
The Fifth Amendment forbids the federal government from depriving any โpersonโ of life without due process of law. What does โpersonโ mean?
In daily discourse, we often use โpersonโ interchangeably with โhuman being.โ This is not necessarily true in legal language, however. Some traditional legal systems have denied personhood to certain classes of human beings, such as slaves or foreigners. Our own legal system grants personhood to corporations, which arenโt human beings at all, but rather formally organized collections of human beings.
In 1791, when the state legislatures ratified the Fifth Amendment, the American legal system recognized all born human beings, even slaves, as โpersons.โ But it didnโt recognize the unborn as fully human. And it certainly didnโt recognize the unborn as legal โpersons.โ
Applying the Fifth Amendment to include the unborn within its word โpersonโ would require changing the meaning of the amendment as its ratifiers understood it. More on that below.
Argument #3: โThe Unborn are โPersonsโ Under the 14th Amendmentโ
When the state legislatures ratified the 14th Amendment in 1868, knowledge of fetal development was far more advanced than in 1791. Accordingly, most states had instituted some legal protection for the unborn.
But granting some legal protection didnโt mean that lawmakers believed the unborn were fully human, much less โpersons.โ (Lawmakers also grant legal protection to animals and forests, for example.) Although the legislative and public debates over the amendment discussed the โpersonhoodโ of ethnic minorities and women, no one seems to have added fetuses or embryos to the list. And in the years after 1868, laws were passed and lawsuits filed to protect the 14th Amendment rights of ethnic minorities and womenโbut not the unborn.
This and other evidence forces the conclusion that the 14th Amendmentโs term โpersonโ doesnโt include those yet unborn.
Other Problems with the Fifth and 14th Amendments
You might respond by saying, โWhatever the opinion was in 1791 and 1868, we now know that the unborn are human and, therefore, ought to be legal persons. So letโs extend the two Due Process Clauses to them.โ
Of course, this line of argument reeks of the unprincipled โliving constitutionalismโ most conscientious Americans reject. But thereโs an even bigger problem with it: Even if we interpret โpersonโ in the Fifth and 14th Amendments to include embryos and fetuses, most abortions would remain unaffected.
The Fifth Amendment Due Process Clause prevents the federal government from taking life, liberty, or property without following pre-set procedures. The 14th Amendment extends the same restriction to state governments. But the two amendments apply solely toย governmentsโnot to transactions by private parties, such as the typical abortion procedure. In this respect, the Fifth and 14th Amendments are unlike the 13th (abolishing slavery): The 13th applies both to governments and to private individuals; the Fifth and 14th apply only to governments.
In constitutional law, the rule excluding private conduct from the Fifth and 14th amendments is called the โstate action doctrine.โ The state action doctrine protects federalism and prevents officials and judges from using the amendments to restrict individual freedom.
In sum, as Justice Samuel Alito pointed out in Dobbs v. Jackson Womenโs Health (pdf)โand as the late, great Justice Antonin Scalia said repeatedlyโthe Fifth and 14th Amendment Due Process Clauses really have nothing to do with abortion.
Argument #4: โAbortion is a National Moral Issue, not a โStatesโ Rightsโ Issueโ
I have seen one writer argue that โAbortion is no more a โstatesโ rights issueโ than slavery was in the mid-19th century.โ
However, the writer got the history wrong. Slavery was a moral issue, but it also was very much a matter of statesโ rights. Even most anti-slavery activists acknowledged this. Abraham Lincoln, for example, agreed that states could maintain slavery within their own borders indefinitely. What Lincoln contended was that Congress should adopt a law abolishing slavery withinย federal territories.
Slavery ceased to be a statesโ-rights issue only when Americans passed a constitutional amendment abolishing it. Similarly, those seeking to end abortion in our country will have to obtain a constitutional amendment to do so. The present Constitution will not do it for them.
This essayย first appearedย in the Aug. 4, 2022ย Epoch Times.
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