Despite the early euphoria, the Supreme Court’s decision in Dobbs has not ushered us into the Promised Land. While it was a large step forward to reverse Roe v. Wade and its morally wicked and legally warped progeny, its effect has been muted in several ways. The voters of presumably pro-life states have rejected constitutional amendments outlawing abortion; courts have found a “right to abort” under a Roe-like rationale of it beingembedded in an individual’s “right to privacy” found in state constitutions; pro-abortion states have identified themselves as “sanctuaries” for those wanting the procedure, and the number of abortions in those states has climbed; corporations have agreed to fund transportation by their employees to such abortion-friendly havens; and mail-order, pharmacological abortions have spiked, with the strong encouragement of the current administration.
The Supreme Court in Dobbs did what it had been asked to do by the State of Mississippi: return the issue of abortion “to the people,” i.e., to the States and the legislative branches of government. A good first step, perhaps, but not one of much consolation to the hundreds of thousands of children still aborted each year in this country. The Court in Dobbs was not directly presented with the antecedent question: have the people already spoken? Indeed, they have.
Pro-life supporters in hailing the decision in Dobbs expressed the hope that all would soon recognize the unmistakable truth that the unborn are also fully human and legislate accordingly. But whether unborn humans have full rights of personhood under our laws is not just an issue for current legislation, but also for past legislation. In particular, we must ask and answer the question of what was understood about the status of the unborn when Congress proposed and the States ratified the Fourteenth Amendment in the 1860’s.
The Fourteenth Amendment provides that life may not be taken by the State from any person without due process and that equal protection of the laws is applicable to any person. Unborn persons are not excluded from these protections for any person, as they are from citizenship, as the amendment provides that only for persons born. The majority in Dobbs collected in an appendix to the decision the State and territorial laws outlawing abortion at the time the Fourteenth Amendment was ratified to show that abortion was not considered a basic right at that time. Even more to the point, though, is that those statutes almost uniformly refer to the fetus as a child and outlaw abortion at any stage of pregnancy, reflecting a legislative tightening up of common-law abortion restrictions as science for the first time reliably informed that a new, living person was formed at conception. Thus, it is clear that the drafters and ratifiers of the Fourteenth Amendment understood any person to include the unborn.
In the wake of Dobbs, legislative action against abortion has taken on renewed importance. But Dobbs was only a halfway measure that leaves the most vulnerable humans who need the most protection subject to the whim of legislators and the electorate, not to mention their vulnerability to the availability of pro-abortion “sanctuaries” and to death-inducing pharmaceuticals ordered via U.S. mail. It ignores that the people have already spoken on this subject, and definitively. The Fourteenth Amendment protects the life of any person, including unborn persons. Not to diminish the need for legislative work, there is still important judicial work to be done in the fight against the scourge of abortion.