This essay explains why those who claim the Constitution forbids abortion are as much in error as those who think it legalizes abortion.
The Case for the Unconstitutionality of AbortionThe arguments for the view that the Constitution bans abortion have been set forth as follows:
First: It’s a scientific fact that humanity begins at the moment of conception.
Second: A human being is therefore a “person” as the Constitution uses the term.
Fourth: Just as slavery was a national moral issue rather than a states’-rights issue, abortion also is an issue of national morality.
Argument #1: ‘Humanity begins at the moment of conception’The essence of the Roe 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 “potentially” human.
In this respect, the question of when humanity begins resembles the question of when it ends—that is, when death occurs. There’s 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 there’s 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 people’s 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.
Argument #2: ‘The Unborn are “Persons” Under the Fifth Amendment’The Fifth Amendment forbids the federal government from depriving any “person” of life without due process of law. What does “person” mean?
In daily discourse, we often use “person” interchangeably with “human being.” 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 aren’t 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 “persons.” But it didn’t recognize the unborn as fully human. And it certainly didn’t recognize the unborn as legal “persons.”
Argument #3: ‘The Unborn are “Persons” Under the 14th Amendment’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 didn’t mean that lawmakers believed the unborn were fully human, much less “persons.” (Lawmakers also grant legal protection to animals and forests, for example.) Although the legislative and public debates over the amendment discussed the “personhood” 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 women—but not the unborn.
Other Problems with the Fifth and 14th AmendmentsYou might respond by saying, “Whatever the opinion was in 1791 and 1868, we now know that the unborn are human and, therefore, ought to be legal persons. So let’s extend the two Due Process Clauses to them.”
Of course, this line of argument reeks of the unprincipled “living constitutionalism” most conscientious Americans reject. But there’s an even bigger problem with it: Even if we interpret “person” in the Fifth and 14th Amendments to include embryos and fetuses, most abortions would remain unaffected.
In constitutional law, the rule excluding private conduct from the Fifth and 14th amendments is called the “state action doctrine.” The state action doctrine protects federalism and prevents officials and judges from using the amendments to restrict individual freedom.
Argument #4: ‘Abortion is a National Moral Issue, not a “States’ Rights” Issue’I have seen one writer argue that “Abortion is no more a ‘states’ rights issue’ than slavery was in the mid-19th century.”
Slavery ceased to be a states’-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.