Column: Catching Air
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.
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.
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 »