Professor Robert P. George and Josh Craddock recently wrote in The Washington Post that Congress must act to protect preborn children when Roe is overruled, assuming the Supreme Court makes abortion a state-by-state issue:
As Justice Samuel A. Alito’s Jr.’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization shows, the Constitution confers no right to abortion. Its 14th Amendment, however, entitles unborn children to the protection, indeed the equal protection, of the laws. States that fail to protect the rights of the unborn violate this guarantee.
The 14th Amendment, ratified in 1868, extended “the equal protection of the laws” to “any person.” Although the court in Roe rejected the argument that the fetus is a person protected by the 14th Amendment, the majority’s reasoning was notoriously poor and its conclusion incorrect. The historical evidence is overwhelming that at the time of the amendment’s ratification, the word “person” had a settled public meaning that included any child living in the womb.
As Robert P. George, together with Oxford University legal philosopher John M. Finnis, explained in a Dobbs amicus brief calling on the court to acknowledge fetal personhood, elective abortion — the taking of unborn human life where there is no threat to the mother — was, from the earliest centuries at common law, treated as unlawful during all stages of pregnancy.
The 14th Amendment, similar to the Civil Rights Act of 1866 it was meant to support, codified equal protection of the fundamental rights of persons — including life and personal security — as these had been expounded in William Blackstone’s “Commentaries on the Laws of England” and leading American treatises. The Commentaries began with a discussion of unborn children’s rights as persons across many areas of law. Based on these authorities and landmark English cases, state high courts leading up to 1868 declared that the unborn child throughout pregnancy “is a person” and hence, under “civil and common law,” “to all intents and purposes a child, as much as if born.” By the end of 1868, three-quarters of the states had enacted criminal laws against abortion at all stages. These statutes classified abortion as an “offense against the person,” and nearly all described the unborn victim of abortion as an “infant” or “child.” …
[A] mistaken argument claims that the unborn cannot be protected by the 14th Amendment because it begins by declaring that “persons born or naturalized in the United States are citizens of the United States.” But that provision establishes which persons are citizens, and therefore entitled to the privileges and immunities of citizenship; it does not say that only citizens are persons. Indeed, it clearly acknowledges persons who are not citizens. And the due process and equal protection provisions of the amendment expressly protect all persons — not just citizens.
“The Lincoln Proposal: A Constitutional Vision for an Executive Order to Restore Constitutional Rights to All Human Beings,” published in 2020 by Americans United for Life, makes further historically important points about the 14th Amendment with respect to post-Reconstruction constitutional jurisprudence:
[T]he story of our Constitution—and the Fourteenth Amendment in particular—has been the story of extending the protection of fundamental legal rights to more and more classes of persons, including African Americans, women, Native Americans, resident and nonresident aliens, the developmentally disabled, and illegitimate children. In every case, the affirmation of constitutional guarantees for these classes of persons was based on their mere status as human beings within the Constitution’s juridical reach. Even when the parameters of equal protection and due process are tailored to their subjects, such as the more circumscribed rights held by children and non-citizen aliens, the core of those guarantees are recognized in some way for all members of the human family within the borders of the United States—except for our youngest members.
“The child in the womb,” observed Professor Charles Rice in his 1971 Americans United for Life amicus brief in Roe, “is a person within the meaning of the Equal Protection Clause of the Fourteenth Amendment.” Although the Court at that time was bent on ignoring this basic reality, it has since accepted the logic and precedent of equal protection for successive classes of persons.