By David Bjornstrom, Esq. — It is encouraging to hear that the Supreme Court, in the case of Dobbs v. Jackson’s Women’s Health Organization, may finally overturn Roe v Wade. However, that will not be enough to protect the pre-born, because the Court’s decision just transfers the abortion issue to the states where, in many cases, abortion will be expanded.
A proper legal analysis recognizes that there is a Constitutional right to life. This right to life is based on the Fourteenth-Amendment prohibition against laws that deprive any person of life or of equal protection under the law. The Roe v Wade decision itself stated that if the pre-born child is a legal “person,” the case for abortion would collapse, and the child’s right to life would be guaranteed specifically by the Fourteenth Amendment. Since then, modern science has shown us that a pre-born child is a unique, genetically distinct human person from the time of his or her conception.
The importance of the Fourteenth Amendment
The Fourteenth Amendment says that no person may be deprived of life, liberty, or property without due process of law, nor denied the equal protection of the laws. Even if the country’s main focus was race issues in 1868, when the amendment was adopted, its broad wording was intentional. We should interpret these words as they were understood at the time—that the life of a human person began at conception, even if medical science had not yet come to a full understanding of genetics and fetal development.
According to the amicus brief the Center for Medical Progress filed in the Dobbs case, recent legal scholarship has established indisputably that the state legislatures that ratified the Fourteenth Amendment in 1868 understood and intended the word “person” to include pre-born humans. In the 1818 case of United States v. Palmer, the Supreme Court acknowledged that the word “person” includes all of humanity. As recently as 1968, the case of Levy v. Louisiana defined “person” to include all who are “humans, live, and have their being,”
While the Supreme Court’s draft decision does not go far enough to protect the pre-born, it does reveal a possible pathway for future cases to recognize a Constitutional right to life, even if the justices cannot bring themselves to recognize the pre-born as literal “persons.” Justice Alito, in explaining why there is no right to abortion under the Fourteenth Amendment, shows us how other rights, such as the right to life, can be established.
Justice Alito explains that a right that is not explicitly contained in the Constitution—like the so-called right to abortion—can only be recognized as an implied right if it is both (1) “deeply rooted in our American history and tradition” and (2) “essential to our nation’s scheme of ordered liberty.” The draft opinion gives a lengthy historical analysis of American abortion laws that existed many decades before Roe. This analysis shows conclusively that there was no right to abortion either “deeply rooted in our American history and tradition” or “essential to our nation’s scheme of ordered liberty.” In fact, most states had laws that expressly outlawed abortion in 1868, when the Fourteenth Amendment was ratified, and well into the middle of the 20th century.
Alito stops short
Unfortunately, Justice Alito stops short in his analysis by failing to recognize a positive right to life for the pre-born. The same history of anti-abortion laws that disproves any right to abortion “deeply rooted in our American history and tradition” also supports a right to life under that same history and tradition.
Protection of innocent human life also meets the second part of Justice Alito’s two-pronged test, as it is “essential to our nation’s scheme of ordered liberty” to keep one group of people from killing others, especially when members of the victim group, the pre-born, are unable to speak for themselves and have no vote at the ballot box.
With all due respect to Justice Alito, he concedes too much in assuming that, just because Roe v Wade would be overturned, abortion laws should be left up to the states. His draft opinion explains that the Court should not try to decide the relative importance of a pre-born child’s rights versus the mother’s rights.
However, that does not excuse the Court from its responsibility to extend Constitutional protections to everyone, especially defenseless pre-born children.
Our work is not finished
Fundamental Constitutional rights under our system of government are too important to depend on majority vote, because that may leave those in the minority group unprotected. For example, members of minority race groups would not be safe from discrimination if their Fourteenth Amendment rights could be voted away by the majority. Free speech rights under the First Amendment would be on shaky ground if unpopular opinions could be shut down by the majority. It is essential for our legal system to have an independent judiciary that enforces our Constitutional rights.
We should assume that the Constitution means what it says.
No person, including a pre-born person, is to be deprived of life without due process of law, and no person should be denied equal protection. Unfortunately, at least for now, the Supreme Court is unwilling to recognize a Constitutional right to life. We must continue our work to secure equal protection for the pre-born.
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David Bjornstrom, Esq., is a member of the U.S. Supreme Court bar and a retired Santa Rosa, CA-based attorney with 38 years of experience specializing in business, estate, and tax law. He serves in various pro-life and elder-focused outreach ministries. David and his wife have six children, including two adopted from China, and 16 grandchildren.