Opinion | Federal legislation is necessary to protect the unborn, even if Roe falls

As Justice Samuel A. Alito’s Jr.’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization shows, the Constitution confers no right to abortion. Its 14th Amendment, however, entitles unborn children to the protection, indeed the equal protection, of the laws. States that fail to protect the rights of the unborn violate this guarantee.

The 14th Amendment, ratified in 1868, extended “the equal protection of the laws” to “any person.” Although the court in Roe rejected the argument that the fetus is a person protected by the 14th Amendment, the majority’s reasoning was notoriously poor and its conclusion incorrect. The historical evidence is overwhelming that at the time of the amendment’s ratification, the word “person” had a settled public meaning that included any child living in the womb.

As Robert P. George, together with Oxford University legal philosopher John M. Finnis, explained in a Dobbs amicus brief calling on the court to acknowledge fetal personhood, elective abortion — the taking of unborn human life where there is no threat to the mother — was, from the earliest centuries at common law, treated as unlawful during all stages of pregnancy.

The 14th Amendment, similar to the Civil Rights Act of 1866 it was meant to support, codified equal protection of the fundamental rights of persons — including life and personal security — as these had been expounded in William Blackstone’s “Commentaries on the Laws of England” and leading American treatises. The Commentaries began with a discussion of unborn children’s rights as persons across many areas of law. Based on these authorities and landmark English cases, state high courts leading up to 1868 declared that the unborn child throughout pregnancy “is a person” and hence, under “civil and common law,” “to all intents and purposes a child, as much as if born.” By the end of 1868, three-quarters of the states had enacted criminal laws against abortion at all stages. These statutes classified abortion as an “offense against the person,” and nearly all described the unborn victim of abortion as an “infant” or “child.”

Because state laws allowing elective abortion necessarily deprive a class of human beings — those at the earliest stages of development — of “the equal protection of the laws,” they violate constitutional rights. Such laws render generally applicable statutes against homicide inapplicable to a disfavored class of persons and expose unborn children to lethal violence.

These are precisely the sort of wrongs that the 14th Amendment was designed to rectify. It equipped Congress to meet this challenge by granting to it, in Section 5, “power to enforce, by appropriate legislation” the amendment’s due process and equal protection guarantees. As the Supreme Court explained in the 1880 case Ex Parte Virginia, whatever legislation is “adapted to carry out . . . the equal protection of the laws against State denial or invasion . . . is brought within the domain of congressional power.”

A false, pseudo-originalist approach to constitutional interpretation would claim that the 14th Amendment does not protect the unborn because it was most immediately intended to protect Black Americans against discriminatory — unequal — treatment. But the amendment’s framers deliberately chose the broad term “persons” to empower Congress to protect any human being who might be denied due process or equal protection on any ground.

Another mistaken argument claims that the unborn cannot be protected by the 14th Amendment because it begins by declaring that “persons born or naturalized in the United States are citizens of the United States.” But that provision establishes which persons are citizens, and therefore entitled to the privileges and immunities of citizenship; it does not say that only citizens are persons. Indeed, it clearly acknowledges persons who are not citizens. And the due process and equal protection provisions of the amendment expressly protect all persons — not just citizens.

Finally, although the Supreme Court purported to narrow the scope of Congress’s Section 5 enforcement power in City of Boerne v. Flores, federal protection of unborn children remains within Congress’s prerogative. As Boerne acknowledged, “it is for Congress in the first instance to ‘determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,’ and its conclusions are entitled to much deference.”

By reversing Roe and its rejection of fetal personhood, Dobbs sets the stage for Congress to remedy state encroachments on the equal rights of our tiny sisters and brothers at the dawn of their lives and secure our nation’s promise of equal justice for all.