- Paul Stark
How Roe v. Wade subverted the Fourteenth Amendment to impose abortion on demand
In 1868, in the wake of the Civil War, the Fourteenth Amendment was added to the U.S. Constitution. It affirms (in part): "No State shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
More than a century later, this amendment played the starring role in the U.S. Supreme Court's Roe v. Wade decision, which asserted a constitutional right to abortion and erased laws protecting unborn children nationwide.
One question at issue in Roe was this: Does the meaning of "person" in the Fourteenth Amendment encompass all members of the human species? Does it therefore encompass unborn children? If so, the Constitution guarantees them protection under the law.
Indeed, "If this suggestion of personhood is established," Roe acknowledged, "the [case for a constitutional right to abortion], of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment."
Roe claimed, however, that the unborn don't qualify as constitutional persons. Why not? The Court's reasoning was remarkably flimsy. It argued that most other references to persons in the Constitution (such as a provision about persons eligible to serve in Congress) have no prenatal application—so "person" must not be meant to include the unborn.
But that obviously doesn't follow. Most provisions in the Constitution don't apply to born children, either, and clearly children were understood to be persons.
The Court ignored the fact that dictionaries of the day defined "person" and "human being" interchangeably. It ignored the intentions of the Fourteenth Amendment's framers, like main author John Bingham, who said the amendment protects "any human being" and is "universal." And the Court tried to dispute, unsuccessfully, the fact that both statutory laws and common-law history recognized unborn children as human beings deserving of protection. Most states at the time of the amendment literally classified abortion as an "offense against the person."
Admittedly, not all legal scholars and judges who aim to interpret the law as it is (regardless of their own ideas about what the law should be) have thought that unborn children are persons within the meaning of the Fourteenth Amendment. But the Roe Court didn't just deny that the Constitution requires protection for the unborn. It claimed that the Constitution actually forbids protection for the unborn.
And where in the Constitution, according to the Court, is this prohibition found? The Fourteenth Amendment.
The Court said that the amendment's Due Process Clause includes an implicit "right of privacy" that encompasses a right to abortion. Even assuming a broad realm of privacy, though, many "personal" matters are (uncontroversially) not protected by it. So why is abortion protected? Well, Roe explained, a prohibition on abortion can be a "detriment" to a woman. But the same can be said of countless acts that are not exempt from the possibility of legal restriction.
And this is all the justification Roe could offer.
Thus the Court had no valid reason to think there's a right to abortion. Worse, the purported right is refuted by the very people who adopted the Fourteenth Amendment. Many states enacted statutes banning all elective abortions during the same era in which they ratified the amendment. They enacted those laws (contrary to Roe's historically debunked suggestion) for the primary purpose of protecting unborn children from being killed.
The Ohio legislature, for example, ratified the Fourteenth Amendment in early 1867. A few months later, the same legislature voted to strengthen Ohio's abortion ban, with the committee overseeing the bill calling abortion "child murder."
"To reach its result," concluded Justice William Rehnquist in his Roe dissent, "the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment."
The irony of Roe's two-part interpretation of the Fourteenth Amendment is jarring. "[T]he Court resorted to the most literalistic possible form of strict construction to avoid finding the unborn to be persons" while also "employing the most imaginative possible construction of the Fourteenth Amendment to find a right of abortion," observe Dennis J. Horan and Thomas J. Balch.
The Fourteenth Amendment is supposed to protect everyone. Roe imagined that not only doesn't it protect everyone; it actually (somehow!) requires depriving a whole class of human beings of protection—human beings who happen to have been legally protected by the same Americans who adopted the amendment in the first place.
Roe v. Wade turned the Fourteenth Amendment against itself in ridiculous fashion. "No state shall deprive" became "Every state shall deprive." That's how we got abortion on demand in America.
This article appears in the January 2018 issue of NRL News.