Pro-life advocates regularly hear the claim "Abortion is Constitutional" in order to justify the killing of preborn children.
In this video, the former Editor-in-Chief of the Harvard Journal of Law explains why abortion is unconstitutional, and preborn children are entitled to constitutional protection under the 14th Amendment.
The 1973 Supreme Court decision Roe v. Wade required states to allow abortion. The seven men forming the majority said the right to privacy includes a woman’s decision to end the life of her preborn child, effectively through all nine months of pregnancy. This decision was widely criticized, even by legal scholars who support abortion.
Notably, the Justice who wrote the Roe v Wade opinion, Harry Blackmun, made an important admission. He wrote: if prenatal “personhood is established,” the case for abortion “collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.”
The Fourteenth Amendment was ratified in 1868 after the Civil War to ensure that no human being would be denied basic constitutional rights. The Amendment says states may not “deprive any person of life, liberty, or property, without due process of law; nor deny to any person the equal protection of the laws.”
So let’s take up Justice Blackmun’s challenge. Are preborn babies “persons” within the original public meaning of the Fourteenth Amendment? Let’s use three different tools to answer this question:
Definitions from when the Fourteenth Amendment was ratified;
Historic state practices related to abortion; and
The Framers’ understanding of the Amendment.
First, definitions. According to dictionaries of common and legal usage at the time of the Fourteenth Amendment’s adoption, the term “person” was largely interchangeable with “human being.” The 1864 edition of Noah Webster’s American Dictionary of the English Language defined the term “person” as relating “especially, [to] a living human being; a man, woman, or child; an individual of the human race.” No dictionary of the era referenced birth or the status of being born in its definition of “person,” “man,” or “human being.”
In legal usage, every human being was considered a “natural person.” In his discourse on “The Rights of Persons,” the authoritative treatise writer William Blackstone wrote “life is a right inherent by nature in every individual.” For Blackstone, if human life existed, legal personhood existed also. There was no distinction between biological human life and legal personhood.
Second, state practice. Centuries of English common law tradition consistently treated abortion as the wrongful killing of a human being. From her founding, the United States adopted this tradition and prohibited abortion as soon as human life could be detected. When the Fourteenth Amendment was adopted in 1868, the states widely recognized unborn children as persons. Nearly every state had criminal legislation prohibiting abortion, and at least twenty-eight jurisdictions labeled abortion as an “offense against the person.”
Nine of the ratifying states explicitly valued the lives of the preborn and their pregnant mothers equally by providing the same range of punishment for killing either during the commission of an abortion. Furthermore, at least ten states considered abortion to be either manslaughter, assault with intent to murder, or murder." In twenty-three states and six territories, laws referred to the preborn individual as a “child.” In fact, the same Ohio legislature that ratified the Fourteenth Amendment called abortion “at any stage” nothing less than “child-murder.” Thus, at the time of the Fourteenth Amendment’s adoption, nearly every state understood “person” to include prenatal life.
Third, the framers’ understanding of the amendment’s legal application. The Framers expected the Fourteenth Amendment’s guarantees of equal protection and due process to protect every member of the human species within United States jurisdiction. Senator Jacob Howard, who sponsored the Amendment in the Senate, declared the Amendment’s purpose was to “disable a state from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty and property without due process.” Even the lowest and “most despised of the [human] race” were guaranteed equal protection. As Justice Hugo Black later put it: “the history of the [Fourteenth] Amendment proves that the people were told that its purpose was to protect weak and helpless human beings.”
Considering this evidence, it is clear Roe v Wade was wrongly decided. Unborn children are constitutionally entitled to due process and the equal protection of the laws. The Constitution, properly interpreted, prohibits abortion under the Fourteenth Amendment, and every constitutional officer who swears an oath to uphold the Constitution has a duty to ensure those rights are protected.