The People have already spoken on abortion, Part 1


Roe v. Wade has frequently been criticized because it has taken out of the democratic process the decision of when life begins and when a fetus should achieve legal rights.  Allowing individual States to make the decisions, those who advance this argument says, will help unify us (at least those of us whose voice can be heard) on a very contentious issue on which good people can differ in good faith.  But Roe is wrong for a more fundamental reason:  the People have already spoken on the topic.

The Constitution is the ultimate expression of the People, and it binds us all.  In this blog, I will briefly explain why the Fifth and Fourteenth Amendments on their face prohibit abortion.  In the next, I will discuss that a reasonable, objective reader of the Fourteenth Amendment at the time of its enactment would have understood it to include protection for unborn persons.

As both the Thirteenth and Fourteenth Amendments had their impetus in resolving slavery, it is instructive to read the “return the issue to the People” argument by substituting slavery for abortion.  Should it be a matter for the states to decide by legislative democratic process whether slaves are persons entitled to legal protections as such, rather than property?  That was the original compromise in the Constitution, and it did not lead to a peaceful unity of the Republic.  Nor is the same suggested compromise for abortion likely to lead to peace and harmony.

The unborn are in the class of “any person” protected by the Fourteenth Amendment

The Fourteenth Amendment provides, in most relevant part, “nor shall any State deprive any person of life . . . without due process of law . . . .”[1]  The question of relevance here is whether the Fourteenth Amendment (as well as the Fifth, which has the identical prohibition applicable to the federal government) extends due process protection to unborn persons or, to the contrary, assumes that the unborn are not persons at all for constitutional purposes.

The Supreme Court in Roe v. Wade[2] held that unborn persons are not covered by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.  It based this conclusion, in the main, on other references to person in the Constitution, including the text of the Fourteenth Amendment itself.  Section 1 of the amendment begins by defining citizens as being “persons born or naturalized in the United States”; § 2 specifies that congressional representation will be by “counting the whole number of persons in each State, excluding Indians not taxed”; and § 3 disqualifies a “person” who engaged in insurrection or rebellion from holding high office.  The Court reasoned in Roe that, “in nearly all these instances . . . [the term person] has application only postnatally.  None indicates, with any assurance, that it has any pre-natal application.”[3]

That the Fourteenth Amendment identifies different classes of persons for different purposes does not support, either textually or logically, Roe’s conclusion that the phrase any person, standing alone, does not include prenatal humans.  That other clauses define the term person more restrictively than the amendment’s Due Process and Equal Protection Clauses does not mean that uses of the term person in the latter clauses absorb by implication the restrictive or naturally understood modifiers appearing elsewhere.  The opposite is the normal rule of construction―if authors sometimes limit a word and sometimes do not, it is assumed they intend the distinction.[4]  Indeed, Congress’s use of the term “person born” when defining citizens in the Fourteenth Amendment by itself demands the logical conclusion that Congress understood that some persons were not yet born, but prenatal.

And, of course, the term person in the Due Process and Equal Protection Clauses does not stand unmodified―the clauses expressly protect “any person.”  Thus, by reading any out of the phrase any person in the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Roe Court violated the most foundational of interpretation principles―that the courts must look first to the language under consideration; not make any word superfluous; and, if the language is plain, enforce it according to its terms.[5]

“Without some indication to the contrary, general words . . . are to be accorded their full and fair scope.”[6]    The Supreme Court has consistently done that for the term any in multiple other cases, and there is no indication that any has anything other than its normal scope when used in the Fourteenth Amendment.  The full sentence of the Fourteenth Amendment most directly under consideration makes that abundantly clear, as it repeatedly uses any in its usual sense:  “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State 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.”[7]  There are no exceptions to “any law”—it includes all of them.  There is no “out” for “any State” —none may act to deprive life, liberty, or property without due process.  Identically, there are no exclusions from Congress’s two uses of “any person”—all humans are included.  That Congress intended all four of its uses of any in the operative sentence of the amendment to mean the same is a virtual certitude.[8]

This plain reading of the text to include the unborn in the class of “any person” is supported by what a reasonable, objective person would have understood when the Fourteenth Amendment was passed.  To that I will turn in my next post.

[1]  U.S. Const. amend. XIV § 1 (emphasis added).

[2]  410 U.S. 113 (1973).

[3]  Id. at 156-59 (emphasis added).

[4]  See, e.g., Lopez v. Gonzales, 549 U.S. 47, 55 (2006).

[5]  See generally Antonin Scalia & Brian A. Garner, Reading Law:  The Interpretation of Legal Texts 69-77 (“Ordinary Meaning Canon”), 174-79 (“Surplusage Canon”) (hereinafter, “Scalia & Garner”).

[6]  Id. at 101.

[7]  U.S. Const. amend XIV § 1 (emphasis added).

[8]  See Scalia & Garner at 170-73 (“Presumption of Consistent Usage Canon”).


Share this post