Calvin Freiburger writes on Joshua Craddock’s 2017 piece in the Harvard Journal of Law and Public Policy, “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?”:

Pro-lifers and honest pro-abortion legal scholars agree that Roe v. Wade was wrongly decided. But just how wrong is it? Is it bad law solely because it declares a right to something the Constitution is silent about, or does its judicial malpractice run deeper? …

The first key point of Craddock’s work, critiquing the late, great Justice Antonin Scalia from the right, is an audacious undertaking, but here it’s warranted. You see, while Scalia was a committed originalist and clear opponent of Roe, he was also of the opinion that the Constitution is neutral toward abortion – that its use of the word “persons” “clearly means walking-around persons,” and therefore, states should be left free to set whatever abortion laws they want. Craddock notes several other pro-life judicial originalists who hold (or held) this view, though Scalia is the most recent and most revered modernly.

Craddock concedes that there is some basis for this thinking because “natural rights were not exhaustively enshrined in the federal Constitution” and “states have traditionally decided the question of personhood.” However, he rightfully maintains that a truly originalist answer to the question has to consider what the word “persons” was understood to mean when the Fourteenth Amendment was written and ratified.

He proceeds to explain that layman’s dictionaries treated the concepts of humanity and personhood interchangeably, and so did legal terminology – more explicitly so, in fact. As we’ve discussed in the past, Craddock notes that Blackstone expressly recognized that personhood and the right to life existed before birth with a simple and clear legal standard: “where life can be shown to exist, legal personhood exists”…