In part 1 of this blog, I suggested that a plain reading of the text of the Fourteenth Amendment included the unborn in the class of “any person” to whom are given the benefits of due process and equal protection from the reaches of the States and (through the Fifth Amendment) the Federal Government before the taking of their life. In this posting, I address the counter that abortion was not within the contemplation of the framers of the Fourteenth Amendment and that an objective reader of the text would not have understood the unborn to be included. As to the framers, it must be readily conceded that abortion does not get mentioned in the recorded debates. But that is logically of no consequence, because abortion was criminalized by every state and territory when the Fourteenth Amendment was enacted, and so the issue did not directly present itself as to whether the phrase “any person” whose “life” was protected included unborn persons. At the time, there was no reason to believe that the unborn needed additional protection. But that does not mean that they did not get it in the Civil War Amendments.
That leaves the only one legitimate reason possible to deny that the unborn are part of the class of “any person” under the Fourteenth Amendment, at least from an originalist perspective: if a reasonable person when the amendment was enacted would not have considered the unborn to be persons. To that question, the answer is clear that, by the early 1800’s, the unborn were understood to be both alive from conception and persons. (One could persuasively argue that the relevant inquiry is, instead, whether a reasonable reader would have understood the phrase also to include any individual that science later confirmed was a person, but that is an unnecessary step here.)
Were the unborn considered “persons” in 1868?
The Fourteenth Amendment was ratified in 1868. At around the turn of that century, science had advanced to the point that it was well understood that a new life began at conception and was, indeed, alive even before the mother could feel it, i.e., “quickening.”[1]
In response to these newly achieved understandings, many of the states began a process of revising their abortion laws to clarify that, at whatever stage of pregnancy, whether before or after quickening, abortion was a felony that involved the taking of a human life. This was applauded by, among others, the leading feminists of the day, who variously labeled abortion as “child murder,” “ante-natal murder,” and “ante-natal infanticide.”[2] These new and revised laws tightened common law and statutory restrictions that had not been informed by this scientific knowledge.
The state and territorial statutes speak for themselves, and they demonstrably tell that the legislators understood the unborn to be distinct persons. This is most dramatically shown by the fact that, in the large majority of statutes, the fetus is expressly identified as a “child,” and, by 1860, many also punished abortions whether or not the unborn child was “quickened.” The Maine statute provides an example:
Every person, who shall administer to any woman pregnant with child, whether such child be quick or not, any medicine, drug or substance whatever, or shall use or employ any instrument or other means whatever, with intent to destroy such child, and shall thereby destroy such child before its birth, unless the same shall have been done as necessary to preserve the life of the mother, shall be punished by imprisonment in the state prison, not more than five years, or by fine, not exceeding one thousand dollars, and imprisonment in the county jail, not more than one year.[3]
Other states, like Georgia, still retained the “quickened” distinction for the crime while also identifying the fetus as a child:
The willful killing of an unborn child so far developed as to be ordinarily called ‘quick,’ by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be punished by death or imprisonment for life, as the jury may recommend.[4]
But whether “quickening” was an element of the crime or not, it is obvious that, by the mid-1800’s, a fetus was universally considered a child, i.e., a human being, a person.
What did the authors of the amendment think?
While not as central to an originalist interpretation, the intent of the authors can still provide evidence of what a reasonable reader would have understood at the time. The authors of the amendment fully understood that the sweep of their text protected any human, not just those of African descent. The principal author of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, Representative John Bingham, stated that “before that great law the only question to be asked of a creature claiming its protection is this: Is he a man? Every man is entitled to the protection of American law, because its divine spirit of equality declares that all men are created equal.”[5] And Senator Lyman Trumball stated that the amendment would have the “great object of securing to every human being within the jurisdiction of the Republic equal rights before the law . . . .”[6] Are the unborn of the race of man? Are they human beings? All know they are. And all knew they were when the Fourteenth Amendment was drafted and adopted. The Fourteenth Amendment provides due process and equal protection rights to every person, born and unborn.
As is obvious from both Representative Bingham’s remarks and the text of the amendment itself, the authors of the Fourteenth Amendment tracked the immortal words of the Declaration of Independence, words that have framed the most important issues about personhood that this country has faced—those concerning, in the 1800’s, of the African American race and, now, of the unborn:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men . . . .
That the “all men” of the Declaration of Independence includes the unborn cannot be doubted. The Declaration speaks of all men who are “created,” and men are created, not when they are born, but at conception. It speaks of “unalienable Rights,” including “Life.” Life, too, begins at conception. It speaks of the proper function of governments to be to secure these rights, not actively to aid in the destruction of innocent life.
The framers of the Fourteenth Amendment echoed the words of the Declaration by prohibiting “any State [to] deprive any person of life, liberty, or property, without due process of law” and by guaranteeing “any person . . . the equal protection of the laws.” Those same framers were not ignorant of the fact that the unborn are also persons and that each unborn child has life. They did not limit the reach of the amendment to a born person, but extended it to any who has life, consistent with the text and the purpose of our nation’s founding instrument.
[1] See, e.g., Horatio Storer, On Criminal Abortion in Am. (1860); C. Morrill, The Physiology of Women 318-19 (1868).
[2] See, e.g., Susan B. Anthony, Marriage and Maternity, The Revolution, July 8, 1869, at 4; Elizabeth Cady Stanton, Child Murder, The Revolution, Mar. 12, 1868, at 146-47; see generally Joseph W. Dellapenna, Dispelling the Myths of Abortion History 374-75 (2006).
[3] Me. Rev. Stat., ch. 160, § 13 (1840) (emphasis added).
[4] Ga. Laws No. CXXX, § I, at 113 (1876) (emphasis added).
[5] Cong. Globe, 40th Cong, 1st Sess. 542 (1867).
[6] Id., 39th Cong., 1st Sess. 322 (1866).
