Equal Protection and the Unborn Child: A Dobbs Brief.

AuthorFinnis, John

Introduction Summary of Argument Argument I. Unborn Children are Constitutional Persons Entitled to Equal Protection of the Laws A. The Common Law Considered Unborn Children to Be Persons B. Antebellum Statutes and Post-Ratification Precedents Confirm This Status II. Roe's and Casey's Arguments Against Fetal Personhood Are Unsound A. Justice Stevens' Defense in Casey has Absurd Implications B. Roe's Grounds for Denying That "any person" Included Unborn Children Are Utterly Untenable C. By Following Means I and II, Roe Caricatured the Common Law and the Reforming Statutes III. In Founding and Ratification Era Legal Thought, Constitutional Status as a Person Transcended Narrow Doctrines and Legal Fictions A. A Preliminary Warning Example: Roscoe Pound B. Constitutional Terms: Neither "common sense" nor "common law" but Meanings Shared by Drafters/Ratifiers IV. Dobbs Amicus Briefs of the United States and Associations of Historians Fail at All Relevant Points A. The United States Brief never confronts the thesis of this article, that Roe could and should be overruled on the ground that the object and victim of an elective abortion is entitled, precisely as a person within the meaning of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, to constitutional protection against such a procedure (accepted by Roe itself as a ground that--if sound--"collapses" its entire holding and rationale) B. At 26-27 the United States makes a number of historical and legal-historical claims that this Brief shows to be mistaken, along with constitutional claims that a more accurate history rebuts C. Similarly, the Historians' Brief in this case marks a notable retreat from some of the most confidently advanced legal errors in its predecessor Amicus Briefs-- signed by individual historians, unlike the present one (signed by counsel--errors made by those predecessors in endorsing Roe's invented common-law "liberty" and "right." As to the historic law relating to abortion, the present Historians' Brief rightly abstains even from the word "free," let alone "liberty" or "right." The most it will venture are the hazy formulations "opportunity to make this choice" (3, quoting Roe) and "under the common law, a woman could terminate a pregnancy at her discretion prior to physically feeling the fetus move." (7) (This is the same "could" as the United States ventured while scrupling to add the equivocal and misleading "at her discretion.") V. Recognizing Unborn Children as Persons Entitled to Equal Protection Coheres with Their Mothers' Similar Entitlement, and Requires No Irregular Remedies or Unjust Penalties Concluding Postscript INTRODUCTION

Roe conceded that if, as Texas there argued, "the fetus is a 'person' within the language and meaning of the Fourteenth Amendment," the case for a constitutional right to abortion "collapses." (1) But then the Court hurdled over text and history to an error-strewn denial that unborn human beings are persons under the Amendment.

Scholarship exposing those errors has cleared the ground for a reexamination of Texas's position in Roe. While recalling that scholarship, this brief sheds fresh light on the Amendment's original public meaning, focusing on common-law and pre-Civil War history (including primary material) that previous scholarship has not adequately noted or explored. That history proves that prohibitions of elective abortions are constitutionally obligatory because unborn children are persons within the original public meaning of the Fourteenth Amendment's Due Process and Equal Protection Clauses.


The originalist case for holding that unborn children are persons is at least as richly substantiated as the case for the Court's recent landmark originalist rulings. (2) The sources marshalled in such decisions--text, treatises, common-law and statutory backdrop, and early judicial interpretations--here point in a single direction.

First, the Fourteenth Amendment, sustaining and going beyond the Civil Rights Act of 1866, guaranteed equality in the fundamental rights of persons--including life and personal security--as these were expounded in Blackstone's Commentaries and leading American treatises. The Commentaries' exposition began with a discussion (citing jurists like Coke and Bracton) of unborn children's rights as persons across many bodies of law. Based on these authorities and on landmark English cases, state high courts in the years before 1868 declared that the unborn human being throughout pregnancy "is a person" and hence, under "civil and common law, ... to all intents and purposes a child, as much as if born." (3)

From the earliest centuries at common law, (1) elective abortion at any stage was to "no lawful purpose" and functioned as an inchoate felony for not just one but two felony-murder purposes, and (2) elective abortion was an indictable offense at least when the woman was "quick with child"--a phrase with shifting meanings identified below. (4) (And contrary to Roe's potted history, the sources show that the common law's concern was to protect the child's life, not simply to outlaw procedures dangerous to the mother. (5)) By 1860, the "quick-with-child" prerequisite for indictments had been abandoned in a majority of states, because science had shown that a distinct human being begins at conception. Such obsolete limits to the common law's criminal-law protection of the unborn had been swept away in this cascade of statutes, in almost three-quarters of the states, leading up to the Amendment's ratification.

In the 1880s, the Supreme Court held that corporations are "person[s]" under the Equal Protection and Due Process Clauses. (6) The rationale--combining the Blackstonian understanding of persons (as natural or artificial) with a canon of interpretation first expounded by Chief Justice Marshall and central to originalism today--itself blocks any analytic path to excluding the unborn. Indeed, the originalist case for including the unborn is much stronger than for corporations.

These textual and historical points show that among the legally informed public of the time, the meaning of "any person"--in a provision constitutionalizing the equal basic rights of persons--plainly encompassed unborn human beings.

Second, the only counterarguments by any Justice--and by the sole, widely discredited legal-historical writer cited in Roe--rest on groundless extrapolations and plain historical falsehoods subsequently exposed in scholarship that has never been answered, to which this Brief adds some new evidence.

Finally, acknowledging unborn personhood would be consistent with preserving the nation's long tradition of deference toward state policies treating feticide less severely than other homicides and guarding women's rights to pressing medical interventions that may cause fetal death. Nor would recognizing the unborn require unusual judicial remedies. It would restore protections deeply planted in law until their uprooting in Roe.



    The Fourteenth Amendment bars States from depriving "any person of life ... without due process of law" or denying "to any person ... the equal protection of the laws." (7) It was adopted against a backdrop of established common-law principles, legal treatises, and statutes recognizing unborn children as persons possessing fundamental rights. (8)

    1. The Common Law Considered Unborn Children to Be Persons.

      Authoritative treatises--including those deployed specifically to support the Civil Rights Act of 1866, which the Fourteenth Amendment aimed to sustain and enhance (9)--prominently acknowledged the unborn as persons. Leading eighteenth-century English cases, later embraced in authoritative American precedents decades before ratification, declared the general principle that unborn humans are rights-bearing persons from conception. And even before a nationwide wave of statutory prohibitions of abortion in the mid-nineteenth century, the common law firmly regarded abortion as gravely unlawful from the moment--supposed to have been established by science--when there emerged a new individual member of the human species, a human being. The treatises, cases and statutes are identified and analyzed below, but it is not too early to state the three common-law criminal prohibitions that protected the unborn child's life, prohibitory rules that recur constantly in the exposition below. For at common law, century after century, any elective abortion engaged three indictable offences, three types of homicide:

      [I] [pre-natal quasi-felony-murder of the woman] all attempts at elective abortion are so gravely unlawful when done that if they result in the death of the mother within a year and a day, they are murder;

      [II] [pre-natal quasi-felony-murder of the child] all attempts at elective abortion are so gravely unlawful when done that if they demonstrably result in the child's death after being born alive, they are murder;

      [III] every elective abortion is a serious misprision (near-felony) or very grave misdemeanor, at least when it results in the aborting of the pregnancy of a woman "quick with child."

      Protections [I] (quasi-felony murder of the mother) and [II] (murder by abortifacient of the child born alive) were generally left in place by the reforming statutes of the Ratification Era--the two decades before and after ratification of the Fourteenth Amendment. Those statutes focused on rule [iii] (the crime of elective abortion as such). More or less unanimously, though with many differences of detail, they retained the position settled at common law by 1601: elective abortion as such, though a very serious crime, is not punished as murder or manslaughter, and the drawing of this distinction among kinds of unlawful killings is judged fully compatible with protecting the child in the womb as a person.

      The distinction thus...

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