By David G. Bjornstrom

Abortion is Unconstitutional and Not a State Issue

April 6, 2021
Column: Catching Air
There is a common misconception that if the Supreme Court overrules Roe vs. Wade, abortion will be outlawed. Unfortunately, that is not the case. Many, if not most, of the individual states would still allow abortion absent a nationwide ban. This would not put the issue to rest, just as state-by-state rules on slavery did not work before the Civil War.

The legally correct answer may be found in the 14th Amendment to the Constitution which says that no person shall be deprived of life, liberty, or property without due process of law, nor denied the equal protection of the laws. The 14th Amendment was enacted in 1868 mainly to protect African Americans, but the wording and intent was broader than that, extending to all persons.

The author of the Roe vs. Wade decision, Justice Harry Blackmun, admitted in the Court’s formal opinion that if the fetus is a person the case for abortion would collapse and the right to life would be guaranteed specifically by the 14th Amendment. Now, almost 50 years later, modern science is in fact showing what we knew intuitively all along, that the unborn baby is a new, genetically distinct human person from the time of conception.

While the unborn baby’s personhood should be obvious to anyone who has heard its heartbeat or seen it on an ultrasound machine, the Supreme Court seems to divide itself more on ideological grounds than in doing its job to interpret the Constitution. Supreme Court Justice Byron White, one of the dissenters in Roe vs. Wade, described the majority opinion in that case as an “improvident and extravagant exercise in raw judicial power,” not an honest exposition of the Constitution.

Supreme Court cases since 1973 have danced around the abortion issue with vague arguments about “privacy” (which is nowhere stated in the Constitution) and use of the dehumanizing term “fetus” to obscure what we’re really talking about. Let’s be honest for a moment and assume that the Constitution means what it says without all the legal gamesmanship. No person is to be deprived of life without due process of law.

Some jurists insist that since the Constitution does not define “personhood,” the states should be allowed to decide whether unborn babies qualify. But not every word in the Constitution is specifically defined and the Court often bases its interpretations on common usage and obvious meaning. If left to the states to define personhood, individual states could twist the 14th amendment to mean whatever they want. Members of a particular race could be defined as non-persons, or children under a certain age, or felons or handicapped people, taking away their right to life, liberty or property without constitutional protection.
In 1868 when the 14th Amendment was ratified, the states widely recognized unborn babies as legal persons and that understanding is implicit in the Amendment. Abortion was illegal in virtually every state. Twenty-three states and six territories referred to the unborn baby as a “child” in their statutes against abortion. At least twenty-eight jurisdictions labeled abortion as an “offense against the person” or an equivalent criminal classification. There is no legitimate basis for the Court now to change the meaning of “person” in order to circumvent the 14th Amendment.

The 1992 case Planned Parenthood vs. Casey asserted that a woman’s right to “liberty” under the due process clause of the 14th Amendment gives her an almost absolute right to abort her baby before it reaches the age of viability. This pretty much ignored the baby’s rights by suggesting that an unborn baby is less than a person if its life is dependent on its mother. But if that is the case, why should it be unlawful for a mother to kill her newborn infant? If being dependent on another makes someone less of a person, why should it be unlawful to kill an elderly spouse or parent who is inconveniently dependent? This was judicial nonsense clothed in a black robe.

The late Justice Antonin Scalia believed that Roe was wrongly decided but he felt that individual state legislatures could allow abortion, even if the baby is a “person,” since he thought the state voting process was “due process.” His error was to equate due process with any process at all. Unborn babies can’t vote and their interests are not represented by voters who want the right to abort them. Justice Scalia also failed to account for the equal protection clause in the 14th Amendment which forbids laws that unfairly favor one group over another, whether or not resulting from any supposed due process.

We concede too much in assuming that if Roe is overturned the individual states should decide whether or not to outlaw abortion. If unborn babies are “persons, as modern science shows, the 14th Amendment outlaws abortion since abortion deprives a class of persons of their life without due process of law and without equal protection. Today we recoil in horror that Americans ever allowed states to pass laws treating African Americans as less than full persons. Why should individual states have any right to permit killing in the womb?

Protection of the unborn may be an uphill battle, and an incremental approach has some practical merit, but we need to keep an eye on the right answer in order to know where we should be headed. It is time to reclaim the 14th Amendment for the unborn.


David G. Bjornstrom is a member of the U.S. Supreme Court bar and retired California attorney at law with 38 years specializing in business, estate and... MORE »

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