The Legal Case for Abor­tion Abo­li­tion

For you formed my inward parts;

    you knit­ted me togeth­er in my moth­er’s womb.

I praise you, for I am fear­ful­ly and won­der­ful­ly made.

Psalm 139:13–14

Pref­ace

This arti­cle was orig­i­nal­ly a paper I wrote in law school. It was an extra cred­it assign­ment in my Fam­i­ly Law class, taught by a left-wing fem­i­nist pro­fes­sor. Thank­ful­ly, this pro­fes­sor was an old-school fem­i­nist who believed in free speech, and she gave me cred­it for the paper despite her vio­lent dis­agree­ment with my opin­ion.

Because the arti­cle is writ­ten in “legalese,” it may seem too aca­d­e­m­ic for a lay read­er to under­stand what I’m say­ing. How­ev­er, I ask that you give it a read any­way because for one, I am going to pro­vide some def­i­n­i­tions to make the task a lit­tle less chal­leng­ing, and sec­ond­ly, my dear Chris­t­ian read­ers need to know that the Con­sti­tu­tion as the Found­ing Fathers intend­ed nev­er sup­port­ed, and will nev­er sup­port, the mur­der of inno­cent babies.

Def­i­n­i­tions

1. Due Process: The clause in the 14th amend­ment to the Con­sti­tu­tion which states that “No State shall…deprive any per­son of life, lib­er­ty, or prop­er­ty, with­out due process of law.”
2. Sub­stan­tive Due Process: The belief that the Due Process clause of the 14th amend­ment to the Con­sti­tu­tion implies new rights that the Supreme Court can cre­ate as soci­ety evolves.
3. Equal Pro­tec­tion: The clause in 14th amend­ment to the Con­sti­tu­tion which states that “No State shall…deny to any per­son with­in its juris­dic­tion the equal pro­tec­tion of the laws.”
4. Jurispru­dence: The his­to­ry of caselaw that forms the cur­rent bind­ing inter­pre­ta­tion of laws based on judge’s deci­sions.
5. Penum­bra: the par­tial­ly shad­ed out­er region of the shad­ow cast by an opaque object.
6. Ema­na­tion: an abstract but per­cep­ti­ble thing that issues or orig­i­nates from a source.

Intro­duc­tion

            Ever since the Unit­ed States Supreme Court hand­ed down its sem­i­nal and con­tro­ver­sial deci­sion in Roe v. Wade¹, debate has raged with­in the halls of acad­e­mia. Cen­tral to the myr­i­ad issues Roe has raised is that of con­sti­tu­tion­al jus­ti­fi­ca­tion. On the one hand, pro-abor­tion schol­ars tend to uti­lize a pos­i­tivist approach, view­ing the con­sti­tu­tion as a “liv­ing doc­u­ment” that can cre­ate new sub­stan­tive rights that reflect mod­ern eth­i­cal and philo­soph­i­cal trends, even­tu­al­ly lead­ing to abor­tion becom­ing rec­og­nized as one of those rights.² On the oth­er hand, orig­i­nal­ists view abor­tion as one of a long list of unenu­mer­at­ed rights that are not even remote­ly implied in the text of the con­sti­tu­tion.³ The ulti­mate quest to resolve the issue of abor­tion in the courts has been fur­ther com­pli­cat­ed in the Dobbs deci­sion, over­turn­ing Roe and return­ing the issue of abor­tion back to the states.⁴ Notably, Jus­tice Ali­to in Dobbs claimed that the Equal Pro­tec­tion jus­ti­fi­ca­tion for abor­tion is “square­ly fore­closed by the Court’s prece­dents, which estab­lish that a State’s reg­u­la­tion of abor­tion is not a sex-based clas­si­fi­ca­tion …”⁵ After sum­ma­riz­ing the Sub­stan­tive Due Process (SDP) and Equal Pro­tec­tion (EP) jus­ti­fi­ca­tions for uphold­ing pri­or abor­tion jurispru­dence, this essay will argue that, because the unborn is sci­en­tif­i­cal­ly and legal­ly con­sid­ered a “per­son,” the unborn should be deemed a “per­son,” in the abor­tion con­text. Thus, the Equal Pro­tec­tion Clause of the Four­teenth Amend­ment should apply to the unborn.

Back­ground

Sub­stan­tive Due Process

Sub­stan­tive Due Process (SDP) can be defined as the “con­sti­tu­tion­al guar­an­ty that no per­son shall be arbi­trar­i­ly deprived of his life, lib­er­ty, or prop­er­ty; the essence of this guar­an­ty is pro­tec­tion from arbi­trary and capri­cious action.”⁶ The doc­trine finds its mod­ern ori­gin in Jus­tice Harland’s dis­sent­ing opin­ion in Poe v. Ull­man, in which he opines that, “…[T]he full scope of the lib­er­ty guar­an­teed by the Due Process Clause can­not be found in or lim­it­ed by the pre­cise terms of the spe­cif­ic guar­an­tees else­where pro­vid­ed in the Con­sti­tu­tion. It … includes a free­dom from all sub­stan­tial arbi­trary impo­si­tions and pur­pose­less restraints …”⁷ Jus­tice Kennedy elu­ci­dat­ed the philo­soph­i­cal under­pin­ning of SDP by pos­tu­lat­ing that con­sti­tu­tion­al lib­er­ty con­fers “the right to define one’s own con­cept of exis­tence, of mean­ing, of the uni­verse, and of the mys­tery of human life.”⁸

            While Har­land laid the per­sua­sive ground­work for future deci­sions, Jus­tice Dou­glas cod­i­fied SDP into bind­ing law in Gris­wold v. Con­necti­cut, hold­ing that var­i­ous rights with­in the Bill of Rights, such as the First Amendment’s pro­tec­tions of free­dom of asso­ci­a­tion and speech, and the Four­teenth Amendment’s pro­tec­tion of a par­ent choos­ing how to edu­cate their chil­dren, among oth­er rights “sug­gest that spe­cif­ic guar­an­tees in the Bill of Rights have penum­bras, formed by ema­na­tions from those guar­an­tees that help give them life and sub­stance. Var­i­ous guar­an­tees cre­ate zones of pri­va­cy.”⁹ Jus­tice Dou­glas went on to explain that the zone of pri­va­cy ema­nat­ing from the Bill of Rights includes the right to con­tra­cep­tion.¹⁰

While the right to con­tra­cep­tion was rec­og­nized with­in the SDP frame­work, abor­tion still had not reached the same sta­tus until the 1970s. In Eisen­stadt v. Baird,  con­firm­ing the woman’s SDP right to con­tra­cep­tion, Jus­tice Bren­nan fore­shad­owed Roe when he declared, “If the right of pri­va­cy means any­thing, it is the right of the indi­vid­ual … to be free from unwar­rant­ed gov­ern­men­tal intru­sion into mat­ters so fun­da­men­tal­ly affect­ing a per­son as the deci­sion whether to bear or beget a child.”¹¹ Indeed, Jus­tice Black­mun ampli­fied Brennan’s sen­ti­ment in Roe by affirm­ing that “[t]his right of pri­va­cy … is broad enough to encom­pass a wom­an’s deci­sion whether or not to ter­mi­nate her preg­nan­cy.”¹²

Since Roe and Casey, pro­po­nents of SDP argue from the per­spec­tive of female auton­o­my. For instance, con­sti­tu­tion­al schol­ar Eri­ka Hansen epit­o­mized this view: “…the core prin­ci­ples of auton­o­my, dig­ni­ty, and equal­i­ty strength­en all sub­stan­tive due process rights, includ­ing the right to abor­tion … [The] harms inflict­ed upon women by abor­tion restric­tions amount to a denial of equal lib­er­ty.”¹³ For Hansen, SDP is a way to ensure that con­sti­tu­tion­al lib­er­ty avoids sub­ju­gat­ing women by rec­og­niz­ing the auton­o­my of the woman in her deci­sion to have an abor­tion. How­ev­er, some crit­ics have argued that the Gris­wold line of cas­es stands on shaky con­sti­tu­tion­al ground, and that the woman’s right to abor­tion should instead rest in the Equal Pro­tec­tion Clause of the Four­teenth Amend­ment.

Equal Pro­tec­tion for Women

Har­vard Law pro­fes­sor Cass R. Sun­stein ampli­fies Blackmun’s view by expound­ing that the short­hand argu­ment for abor­tion using Equal Pro­tec­tion (EP) “… sees a pro­hi­bi­tion on abor­tion as invalid because it involves a coop­ta­tion of wom­en’s bod­ies for the pro­tec­tion of fetus­es … No par­al­lel dis­abil­i­ty is imposed on men.”¹⁴ The EP ground­ing sees men and women on unequal foot­ing due to women’s unique bur­den of car­ry­ing a fetus to term, thus neces­si­tat­ing a right to abor­tion to bring about equal pro­tec­tion. And while EP and SDP are the main legal bat­tle­grounds for abor­tion, there is one argu­ment that is not fre­quent­ly part of the con­ver­sa­tion, which deserves atten­tion.

While the Supreme Court has been reluc­tant to uti­lize EP to rec­og­nize the right to abor­tion, and of recent Ali­to has been antag­o­nis­tic to it, the idea is worth con­sid­er­ing. There is a large body of schol­ar­ship on EP with respect to abor­tion access with many pro­po­nents. While EP has not been con­sid­ered bind­ing in any Supreme Court hold­ings on abor­tion, it has been cau­tious­ly men­tioned in prece­dent. Jus­tice Blackmun’s con­cur­rence in Planned Par­ent­hood v. Casey gives the clear­est jus­ti­fi­ca­tion for EP with respect to abor­tion in the jurispru­dence: “This assumption—that women can sim­ply be forced to accept the ‘nat­ur­al’ sta­tus and inci­dents of motherhood—appears to rest upon a con­cep­tion of wom­en’s role that has trig­gered the pro­tec­tion of the Equal Pro­tec­tion Clause.”¹⁵ In Blackmun’s view, if soci­ety were to force women to take on the bur­dens of moth­er­hood, this would not be treat­ing women equal­ly under the law and would sig­ni­fy an EP vio­la­tion.

1. Equal Pro­tec­tion for Unborn Per­sons

While schol­ars debate the con­sti­tu­tion­al­i­ty of abor­tion access, they tend to pre­sup­pose the inhu­man­i­ty of the unborn by fiat, with­out care­ful exam­i­na­tion. How­ev­er, there is a body of schol­ar­ship which argues that the unborn fetus should be con­sid­ered a legal “per­son” under abor­tion law. As legal schol­ar Bren­dan F. Pons acknowl­edges, “… [Defin­ing fetal per­son­hood] is impor­tant because the ques­tion of when life begins deter­mines basic con­sti­tu­tion­al guar­an­tees. There­fore, apply­ing per­son­hood to the law is a basic con­sti­tu­tion­al ques­tion … [for deter­min­ing] whether [the unborn] should have equal pro­tec­tion …”¹⁶

In this view, it is thought incon­sis­tent that the unborn is treat­ed as a per­son in oth­er areas of the law, but not in abor­tion jurispru­dence. For exam­ple, Chap­man pro­fes­sor Rachel War­ren gives myr­i­ad instances in which the law rec­og­nizes the per­son­hood of the unborn: “After Roe held that a pre-viable unborn child is not a per­son under the Con­sti­tu­tion, the oppo­site occurred in state crim­i­nal law. In refus­ing to take guid­ance from the Supreme Court’s via­bil­i­ty stan­dard for human recog­ni­tion, twen­ty-four states have extend­ed legal pro­tec­tion for the life of the unborn, regard­less of the stage of preg­nan­cy.”¹⁷¹⁸ In these states, if a crim­i­nal act caus­es death or injury of an unborn baby, the per­pe­tra­tor is sub­ject to crim­i­nal penal­ties. Giv­en this real­i­ty, pro­po­nents of the pro-life and abo­li­tion­ist EP view claim it is con­tra­dic­to­ry that an unborn fetus is con­sid­ered a “per­son” in these states’ crim­i­nal codes but is not a “per­son” under abor­tion law. The next sec­tion will begin with a brief eval­u­a­tion of the SDP and EP approach­es to uphold­ing abor­tion, and then will advo­cate for the mer­it of the EP approach to abol­ish­ing abor­tion.

Analy­sis

First­ly, the SDP approach’s con­sti­tu­tion­al­i­ty is ten­u­ous at best, even to many pro-abor­tion schol­ars. As Ter­Beek admits, “sub­stan­tive due process is sure­ly, as con­ser­v­a­tives charge, a vehi­cle for ‘dis­cov­er­ing new rights’ as soci­ety changes.”¹⁹ Addi­tion­al­ly, Jus­tice Gold­berg arguably con­cedes the uncon­sti­tu­tion­al­i­ty of SDP when he claims that the idea of “lib­er­ty” is expan­sive, and that the idea of mar­i­tal pri­va­cy “is not men­tioned explic­it­ly in the Con­sti­tu­tion.”²⁰ If an idea is so atten­u­at­ed from the Con­sti­tu­tion that the Bill of Rights has to cast a “penum­bra” for that idea to have any con­sti­tu­tion­al force, then that idea can­not pos­si­bly be con­sid­ered con­sti­tu­tion­al with­out turn­ing the Con­sti­tu­tion into a hope­less­ly post­mod­ern doc­u­ment, sub­ject to any inter­pre­ta­tion from judges who can cast penum­bras to for­ward any leg­is­la­tion that can­not be passed through Con­gress.

Like­wise, Jus­tice Alito’s cri­tique of the EP jus­ti­fi­ca­tion for abor­tion dis­plays its con­sti­tu­tion­al weak­ness: “The reg­u­la­tion of a med­ical pro­ce­dure that only one sex can under­go does not trig­ger height­ened con­sti­tu­tion­al scruti­ny unless the reg­u­la­tion is a ‘mere pretext[t] designed to effect an invid­i­ous dis­crim­i­na­tion’ … And as the Court has stat­ed, the ‘goal of pre­vent­ing abor­tion’ does not con­sti­tute ‘invid­i­ous­ly dis­crim­i­na­to­ry ani­mus’ against women.”²¹ Indeed, a sub­stan­tial per­cent­age of women are pro-life or abo­li­tion­ist, show­ing that this issue is not one of ani­mus against women.²² Fur­ther­more, those who are pro-life and abo­li­tion­ist gen­er­al­ly focus their atten­tion on pre­serv­ing the life of the unborn, not on dis­crim­i­nat­ing against women. There­fore, the EP argu­ment for abor­tion lacks con­sti­tu­tion­al and evi­den­tiary grounds. This analy­sis will now turn to an eval­u­a­tion of the abo­li­tion­ist EP argu­ment.

To for­ward the EP case for ban­ning abor­tion, one must first estab­lish that the unborn is a “life” which con­sti­tutes a “human per­son” from the moment of con­cep­tion.²³²⁴ As pro-abor­tion Ter­Beek con­cedes, “If … abor­tion kills a human per­son, [we] would be oblig­at­ed to treat abor­tion crim­i­nal­ly, in sub­stan­tial­ly the same way as mur­der.”²⁵

Bio­log­i­cal­ly, the fact of the per­son­hood of the unborn is well-estab­lished. Bran­deis Law pro­fes­sor Robert L. Stenger elu­ci­dates, “From the process of fer­til­iza­tion emerges unique human life, whose DNA is derived from that of both bio­log­i­cal par­ents and whose DNA is unlike that of any oth­er liv­ing thing. From fer­til­iza­tion there is life and it is human life; it is not poten­tial life or poten­tial­ly human life. Fer­til­iza­tion is the most crit­i­cal event in the life of an organ­ism because it effects the cell-to-organ­ism tran­si­tion that ini­ti­ates a species-spe­cif­ic devel­op­men­tal tra­jec­to­ry.”²⁶ From the begin­ning, the unborn per­son is alive, under­goes devel­op­ment, devel­ops a heart­beat by the eigh­teenth day, devel­ops brain cells with­in 14 days, and can even feel pain well with­in the first trimester.²⁷ Thus­ly, the bio­log­i­cal case for life at con­cep­tion has already been made. In addi­tion, as afore­men­tioned, the legal recog­ni­tion of the fetus as a per­son in crim­i­nal codes is well estab­lished. There exists no cogent rea­son why an unborn child is con­sid­ered a “per­son” under crim­i­nal law, but not under abor­tion law.

Anoth­er ques­tion exists: when there are two com­pet­ing inter­ests between the mother’s bod­i­ly auton­o­my and the unborn person’s right to life, whose rights should take pri­or­i­ty? War­ren said it best, observ­ing that, “… if the fetus is … a con­sti­tu­tion­al per­son, then any leg­is­la­ture that per­mits abor­tion is allow­ing oth­ers to deprive the unborn child of life … with­out equal pro­tec­tion … Nor­mal­ly, the child’s guardian would rep­re­sent this right, but here this is the very per­son with the con­flict­ing inter­est. Thus, it is nec­es­sary for the state to step in and pro­tect the child’s rights.”²⁸ For the fore­go­ing rea­sons, the con­sti­tu­tion should extend pro­tec­tion to the unborn, and abor­tion should be crim­i­nal­ized as mur­der.

1. 410 U.S. 113 ↩︎
2. In the Roe deci­sion, Jus­tice Black­mun not­ed the grow­ing trend of states and courts rec­og­niz­ing the right to abor­tion to jus­ti­fy the deci­sion: “Although the results are divid­ed, most of these courts have agreed that the right of pri­va­cy, how­ev­er based, is broad enough to cov­er the abor­tion deci­sion …” Roe v. Wade, 410 U.S. 113, 155 (1973) ↩︎
3. For exam­ple, Jus­tice Rehn­quist assert­ed in his dis­sent to Roe’s hold­ing: “To reach its result, the Court nec­es­sar­i­ly has had to find with­in the Scope of the Four­teenth Amend­ment a right that was appar­ent­ly com­plete­ly unknown to the drafters of the Amend­ment.” 410 U.S.113 at 174 (1973) ↩︎
4. Dobbs v. Jack­son Wom­en’s Health Org., 142 S.Ct. 2228 (June 24, 2022) ↩︎
5. Id. at 2235 ↩︎
6. Stevens v. St. Tam­many Par. Govt., 322 So. 3d 1268 (La. App. 1st Cir. 2021) ↩︎
7. Poe v. Ull­man, 367 U.S. 542 (1961) ↩︎
8. Planned Par­ent­hood of S.E. Penn­syl­va­nia v. Casey, 505 U.S. 833, 851 (1992) ↩︎
9. Gris­wold v. Con­necti­cut, 381 U.S. 479, 484 (1965) ↩︎
10. Id. at 485 ↩︎
11. Eisen­stadt v. Baird, 405 U.S. 438, 453 (1972) ↩︎
12. Roe v. Wade, 410 U.S. 113, 153 (1973). ↩︎
13. Eri­ka Han­son, Light­ing the Way Towards Lib­er­ty: The Right to Abor­tion After Oberge­fell and Whole Wom­an’s Health, 45 Hast­ings Con­st. L.Q. 93, 94, 105 (2017) ↩︎
14. Planned Par­ent­hood of S.E. Penn­syl­va­nia v. Casey, 505 U.S. 833, 928 (1992) ↩︎
15. Cass R. Sun­stein, Neu­tral­i­ty in Con­sti­tu­tion­al Law (with Spe­cial Ref­er­ence to Pornog­ra­phy, Abor­tion, and Sur­ro­ga­cy), 92 Colum. L. Rev. 1, 31–32 (1992). ↩︎
16. Bren­dan (Bo) F. Pons, The Law and Phi­los­o­phy of Per­son­hood: Where Should South Dako­ta Abor­tion Law Go from Here?, 58 S.D. L. Rev. 119, 120–21 (2013) ↩︎
17. Rachel War­ren, Pro (Whose?) Choice: How the Grow­ing Recog­ni­tion of A Fetus’ Right to Life Takes the Con­sti­tu­tion­al­i­ty Out of Roe, 13 Chap­man L. Rev. 221, 237 (2009) ↩︎
18. Addi­tion­al­ly, the Unborn Vic­tims of Vio­lence Act of 2004 makes it a sep­a­rate Fed­er­al crime to kill or sub­stan­tial­ly injure an unborn child. The Act impor­tant­ly defines “a child in utero” as “a mem­ber of the species homo sapi­ens, at any stage of devel­op­ment, who is car­ried in the womb.” ↩︎
19. Calvin Ter­Beek, Empiri­ciz­ing the Equal Pro­tec­tion Approach to Abor­tion, 38 McGe­orge L. Rev. 775, 791–92 (2007) ↩︎
20. Gris­wold v. Con­necti­cut, 381 U.S. 479, 486 (1965) ↩︎
21. Dobbs v. Jack­son Wom­en’s Health Org., 213 L. Ed. 2d 545 (June 24, 2022) ↩︎
22. A recent US poll finds that 39% of Amer­i­cans iden­ti­fy as pro-life. A major­i­ty of Amer­i­cans iden­ti­fy as ‘pro-choice,’ Gallup poll says : NPR ↩︎
23. Mer­ri­am-Web­ster Defines “Life” as “An organ­is­mic state char­ac­ter­ized by capac­i­ty for metab­o­lism, growth, reac­tion to stim­uli, and repro­duc­tion.  Life Def­i­n­i­tion & Mean­ing — Mer­ri­am-Web­ster ↩︎
24. Mer­ri­am-Web­ster Defines “Per­son” as a “Human indi­vid­ual.” And “human” is defined as “a bipedal pri­mate mam­mal (Homo sapi­ens).” Per­son Def­i­n­i­tion & Mean­ing — Mer­ri­am-Web­ster; Human Def­i­n­i­tion & Mean­ing — Mer­ri­am-Web­ster ↩︎
25. Calvin Ter­Beek, Empiri­ciz­ing the Equal Pro­tec­tion Approach to Abor­tion, 38 McGe­orge L. Rev. 775, 814 (2007) ↩︎
26. Robert L. Stenger, Embryos, Fetus­es, and Babies: Treat­ed As Per­sons and Treat­ed with Respect, 2 J. Health & Bio­med­ical L. 33, 38 (2006) ↩︎
27. Rachel War­ren, Pro (Whose?) Choice: How the Grow­ing Recog­ni­tion of A Fetus’ Right to Life Takes the Con­sti­tu­tion­al­i­ty Out of Roe, 13 Chap­man L. Rev. 221, 235 (2009) ↩︎
28. Rachel War­ren, Pro (Whose?) Choice: How the Grow­ing Recog­ni­tion of A Fetus’ Right to Life Takes the Con­sti­tu­tion­al­i­ty Out of Roe, 13 Chap­man L. Rev. 221, 242, 245 (2009) ↩︎