Protecting prenatal persons: does the Fourteenth Amendment prohibit abortion?

• Author: Craddock, Joshua J.

What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national "right to abortion" can be justified on originalist grounds. (1) Assuming that it cannot, and that Roe v. Wade (2) and Planned Parenthood of Southeastern Pennsylvania v. Casey (3) were wrongly decided, only two other options are available. Should preborn human beings be considered legal "persons" within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy?

INTRODUCTION

During initial arguments for Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the language and meaning of the Fourteenth Amendment." (4) The Supreme Court rejected that conclusion. Nevertheless, it conceded that if prenatal "personhood is established," the case for a constitutional right to abortion "collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment." (5)

Justice Harry Blackmun, writing for the majority, observed that Texas could cite "no case ... that holds that a fetus is a person within the meaning of the Fourteenth Amendment." (6) Relying on other uses of the word "person" in the Constitution, including the qualifications for congressional representatives and the President, the Court concluded that "the use of the word is such that it has application only post-natally." (7) Thus, there could be no "assurance[] that it has any possible pre-natal application." (8) Relying on the notion that "throughout the major portion of the nineteenth century, prevailing legal abortion practices were far freer than they are today," the Court concluded "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." (9)

Even scholars who agree in principle with the outcome of Roe have criticized the Court's blanket approach to creating a federally protected right to abortion. (10) Justice Blackmun's assumption that "the lack of consensus" about when life begins means that "abortion must be permitted," rather than left to state legislatures, has been criticized as "arbitrary" and unwarranted. (11) When Roe determined that states could not protect preborn humans as persons, "the Court effectively decided that the Constitution requires their exclusion." (12)

Other commentators have contested the central holding of Roe but do not believe the Constitution justifies a blanket policy prohibiting abortion either. Some in this camp have argued that a Human Life Amendment to the Constitution is the best or only way to respond to Roe's inadequacies. (13) Some have advocated returning abortion policy to the states. The late justice Antonin Scalia frequently noted his opposition to Roe and his belief that individual states should determine their abortion policy through democratic processes. (14) In either case, if Roe's critics are correct, constitutional scholars must revisit whether the Fourteenth Amendment protects prenatal life or whether each state may choose to permit abortion.

This Note rejects arguments for returning abortion policy to the states--including those offered by Justice Scalia upon originalist grounds (15)--before investigating evidence that the Fourteenth Amendment extends to prenatal human beings. These findings contest the reasoning of Roe and answer Justice Blackmun's objections to extending Fourteenth Amendment protections to the preborn. Based on the historical evidence, this Note presents an originalist argument that all prenatal life is included within the Fourteenth Amendment's existing guarantees of Due Process and Equal Protection.

1. JUSTICE SCALIA'S STATES' RIGHTS VIEW

   What does the Constitution say about abortion? According to the famed originalist and late Associate Justice Antonin Scalia, "the Constitution says absolutely nothing about it." (16) In Justice Scalia's judgment, the meaning of the term "person" at the time of the Fourteenth Amendment's adoption in 1868 did not include prenatal life:

   There are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that's still in the womb the way you treat other human beings. I think that's wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons. (17) On this view, preborn human beings possess no constitutionally guaranteed rights to Equal Protection or Due Process. Replying to anti-abortion campaigners who "say that the Constitution requires the banning of abortion," Justice Scalia pointed to the varying degrees of protection extended to prenatal life in various state jurisdictions during the 1800s. (18) He observed that "some states prohibited [abortion], some states didn't.... It was one of those many things--most things in the world--left to democratic choice." (19)

   If the Constitution remains mute on abortion, it cannot grant the Federal Government power to decide the issue one way or the other. Justice Scalia wrote that "if a state were to permit abortion on demand, I would ... vote against an attempt to invalidate that law ... because the Constitution gives the federal government ... no power over the matter." (20) In Justice Scalia's view, neither side should attempt to use the courts to enforce a national policy on abortion:

   I will strike down Roe v. Wade, but I will also strike down a law that is the opposite of Roe v. Wade. You know, both sides in that debate want the Supreme Court to decide the matter for them. One wants no state to be able to prohibit abortion and the other one wants every state to have to prohibit abortion, and they're both wrong ... that's how I read the Constitution. (21) Justice Scalia is not alone in finding the Fourteenth Amendment irrelevant to prenatal life. Paul Linton, legal counsel for Americans United for Life, has written that of the seventeen Justices who have sat on the Supreme Court since Roe, "not one has ever stated that the unborn child is a constitutional person." (22) Neither then-Justice Rehnquist nor Justice White, both dissenters in Roe, disputed the Court's claim that unborn life is not encompassed in the term "person" as used in the Fourteenth Amendment. (23) Indeed, both Justices believed that states should retain authority to legislate on abortion. Justice Rehnquist wrote in his Roe dissent, "[T]he drafters did not intend to have the Fourteenth Amendment withdraw from the states the power to legislate with respect to this matter." (24) Likewise, Justice White wrote in his Doe v. Bolton dissent, "This issue, for the most part, should be left with the people and the political processes the people have devised to govern their affairs." (25)

   According to Justice Scalia, attempting to resolve the matter through judicial decree merely perpetuates social unrest "by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum.... [and] by continuing the imposition of a rigid national rule instead of allowing for regional differences." (26) Instead, "the Court should return this matter to the people--where the Constitution, by its silence on the subject, left it--and let them decide, State by State, whether this practice should be allowed." (27)

   In Justice Scalia's view, apart from clear constitutional provisions granting protection, legal rights for a particular minority group exist only insofar as the majority determines that the minority group deserves protection. (28) Although rights explicitly enumerated in the Constitution are exempt from democratic purview, all others must be wrestled out in the majoritarian system. Because no constitutional guarantees explicitly apply to preborn human beings, "[t]he States may, if they wish, permit abortion on demand ... The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting." (29) Justice Scalia's view that abortion should simply be put to a democratic vote is worrisomely reminiscent of Senator Stephen Douglas's advocacy of "popular sovereignty" to determine whether states could permit racial slavery in the antebellum period. (30)

   Linton observed that Justice Scalia not only believed majorities ought to decide whether a fetus is a person, but also that "the determination of when human life begins is a question not capable of judicial resolution and instead must be left to the political process where compromise and accommodation of divergent views is possible." (31) That position, however, "forecloses the possibility that any scientific proof or rational demonstration can establish that an unborn child is a human being." (32) Indeed, that position also "forecloses the possibility that there can be any rational discussion of the matter at all, insofar as values by their very nature are subjectively deter-determined." (33) In this respect, Justice Scalia's epistemic agnosticism in the courtroom resembled the relativism of Justice Kennedy's "sweet-mystery-of-life passage," which Justice Scalia so mercilessly mocked. (34)

   Nevertheless, the case for state-by-state regulation of abortion appears at least plausible. Natural rights were not exhaustively enshrined in the federal Constitution. (35) Since the federal government is one of enumerated powers, "[i]t is the states, not the federal government, which have the primary duty to protect those unalienable rights." (36) This position comports with the historical reality that states have traditionally decided the question of personhood. (37) States could adopt or modify the common law to suit the valid purposes of their respective localities, but "in so doing [they] cannot contravene the rights of persons under [the]...