Leading Law Journal: 14th Amendment Prohibits Abortion

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The Harvard Journal of Law and Public Policy has published an essay that could turn the tide of the abortion debate. The essay was written by Josh Craddock, Campaigns Manager for CitizenGO. Between 2011 and 2015, he was an NGO representative to the United Nations, where he participated in negotiations for the Sustainable Development Goals. Next year, Craddock will take on the new role of Editor-in-Chief of the Harvard Journal of Law and Public Policy. NOTE: CatholicVote does not necessarily endorse or oppose this strategy, but we include this discussion to further the debate.

The uphill battle for the rights of the unborn can be demoralizing. Nearly half a century after the Supreme Court’s Roe v. Wade decision, America’s abortion laws remain even more lenient than those of developed countries like Finland, Sweden, and Great Britain.

But the Harvard Journal of Law and Public Policy published an essay last month that may turn the tide of the abortion debate. In “Protecting Prenatal Persons: Does the 14th Amendment Prohibit Abortion?” Harvard Law School student Josh Craddock makes the case that the constitution is meant to mandate the protection of preborn Americans, and not only “walking around persons,” as the late Justice Antonin Scalia once argued.

For a better understanding of Craddock’s arguments and how they may affect the future of pro-life advocacy in the United States, I interviewed him this week. Our conversation is below.

CV: The 14th Amendment to the Constitution of the United States reads in part: “No State shall make or enforce any law which shall abridge the privileges or 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.” You argue that the amendment was intended to protect unborn persons. How did we get from that original intent to where we are now?

Craddock: There are two general families of constitutional interpretation: first, originalism, which tries to ascertain the original public meaning of the text and apply it faithfully; and second, living constitutionalism, in which judges follow their hearts to adapt the constitutional text to fit modern sensibilities. Within originalism, the original public meaning of the terms used is decisive, not the specific original intent of the text’s drafters.

The central question of my article is whether abortion is a state or federal issue within an originalist framework. Put differently, do the Fourteenth Amendment’s guarantees of due process and equal protection—which extend to all “persons”—apply to the unborn? I argue that the original public meaning of the term “person” as used in the Fourteenth Amendment guarantees due process and equal protection of the laws to all members of the human family within the United States—including the unborn.

I draw on three strands of evidence to support this conclusion. First, dictionaries of common and legal usage at the time of the Fourteenth Amendment’s adoption defined the terms “person” and “human being” interchangeably. Thus, the original public meaning of the term person included every member of the human race. There is no evidence that, in 1868, the term person included only born human beings. In fact, all the evidence leads to the contrary conclusion. According to Blackstone, there was no distinction between biological human life and legal personhood.

Second, centuries of common law precedent and state practice indicate that the unborn were considered legal persons. This historic context sheds light on the original public meaning of the term at the time of the Fourteenth Amendment’s adoption.

Third, statements by the authors of the Fourteenth Amendment show that its original expected application was to extend to every human being—especially the weakest and most marginalized. Once again, this suggests that the original public meaning at that time believed that the text of the Fourteenth Amendment applied to every human without exception.

In your essay, you explain that the unborn were recognized as “persons” by legal scholars for centuries, both in English common law and eventually in 19th Century American State legislation. Would you tell us that story?

From the earliest precedents in English common law, abortion was treated as the wrongful killing of a human being, and was prohibited as soon as soon as life in the womb could be detected. In those days, life was detected at “quickening,” and this proved a useful evidentiary tool for determining whether the crime of abortion had occurred. These common law principles, developed by legal giants such as Lord Coke and Blackstone, were inherited by the American colonies and passed into our state common law systems at the Founding. By the 1830s, medical science had discovered that life begins at fertilization. This allowed the states to discard the obsolete quickening standard in favor of the new, medically accurate fertilization standard.

By the time the Fourteenth Amendment was adopted, the states widely recognized unborn children as persons. Twenty-three states and six territories referred to the fetus as a “child” in their anti-abortion statutes. Twenty-eight labeled abortion as an “[offense]against the person” or a functionally equivalent classification. In Ohio, the very same legislature that ratified the Fourteenth Amendment explicitly recognized abortion “at any stage of existence” as “child-murder.” Given that historical context, it’s clear that the public meaning of the term “person” in 1868 included prenatal life.

The pro-life movement opposes Roe v. Wade of course, but since that legislation came down, pro-life politicians and lawyers from the late Justice Antonin Scalia to Mike Lee and President Donald Trump have argued for the rights of states to enact anti-abortion legislation–rather than attack the validity of Roe head-on. What’s wrong with that?

Nothing in my argument detracts from the fact that states hold the primary duty to protect the unalienable rights of all human beings within their jurisdiction, the foremost of which is the right to life. States have a responsibility to exercise their police powers (their powers to promote public health, safety, and morals) to prohibit abortion. Indeed, given the illegitimacy of the Court’s ruling in Roe v. Wade, the states should take all necessary steps to resist the Supreme Court’s usurpation of power to impose a national policy in favor of abortion.

Your essay appeared in the Harvard Journal of Law and Public Policy, arguably the most influential legal journal in the country. Do you think that’s an indication of progress for the pro-life cause?

I’m honored that my article was selected for publication in the Harvard Journal of Law and Public Policy. Brilliant legal minds, such as Professors John Finnis and Robert P. George, have taken the same position I have about constitutional personhood, but I believe this contribution is among the first to conduct a scholarly analysis of the question within an originalist framework. I hope that this article will shift the discussion among legal conservatives and other originalists with respect to the constitutional status of abortion.

What’s next? In light of your work, how would you like to see pro-life lawyers and activists move forward?

Pro-life activists should use this information to push for state personhood amendments recognizing the legal status of unborn children. I hope that state solicitors-general and other pro-life lawyers will be able to use this article as a resource to support their arguments in court defending pro-life laws, especially ones which recognize prenatal personhood. Ideally, I would like to see a challenge to Roe v. Wade that argues this question before the Supreme Court. I’m hopeful that originalists like Justice Thomas and Justice Gorsuch might be persuaded by this evidence.

The views expressed here are those of the author, and do not necessarily represent the views of CatholicVote.org

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About Author

Stephen Herreid is an Associate Editor of the Intercollegiate Review and a contributor to TheBlaze.com. He has been published at Crisis Magazine, Aleteia.org, CatholicVote.org, The Intercollegiate Review Online, and other publications. Reach him at sherreid@candidworldreport.com. Follow him on Twitter @StephenHerreid.

1 Comment

  1. Ryan Schroeder on

    For starters, I wholeheartedly agree with the legal argument presented here.
    But I’m troubled by how CatholicVote picks and chooses Constitutional arguments to fit its conservative leanings.
    I agree 100% that the Fourteenth Amendment applies to all PEOPLE, not just citizens. The Constitution makes numerous specific references to citizens, and also to people, and the courts have long held that there’s a difference here. The rights enumerated in the Fourteenth Amendment belong to all people on the planet.
    We have a very clear historical example of Fourteenth Amendment rights being suspended – the immigration executive order issued by President Trump in January. I don’t think I need to include links here, but there were numerous cases across the country of legal green card holders who were 1) detained without charge; 2) detained without access to counsel; 3) had their green cards summarily revoked.
    CatholicVote was silent on this. In fact, at least in my interpretation of what they wrote, it seems that CatholicVote supported this.
    “Opponents point to those caught in the crossfire, such as students, families, or Muslims working with our military who were implicated by the temporary suspension. Further revisions to the executive order might be required to accommodate certain circumstances.”
    https://www.catholicvote.org/trump-refugees-and-catholics/
    That doesn’t seem like a very full-throated endorsement of the Fourteenth Amendment.
    This doesn’t help support the argument that the unborn, who it would seem aren’t citizens, are protected by the Fourteenth Amendment.

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