A recent op-ed inaccurately claimed that pro-lifers are perverting the 14th Amendment to justify laws protecting preborn children from abortion. But is this true? Does the 14th Amendment exclude human beings living in the womb who are not yet born?
A “dark and cruel inversion’ of the intent?
Writing for the New York Times, opinion columnist Jamelle Bouie responded to the changing platform for the Republican National Convention (RNC), which did not include blanket protection for all preborn lives for the first time in four decades. For Bouie, this is a positive development. He wrote:
It should be said as well that in the same way it is perverse for conservative legal activists and Supreme Court justices to use the Reconstruction amendments — written and ratified to assist the formerly enslaved and enshrine a principle of anti-subordination in the Constitution — to dismantle this nation’s halting efforts at substantive racial equality, it is also perverse for the anti-abortion movement to use the 14th Amendment as a cudgel against bodily autonomy in the name of so-called fetal rights.
Animating that amendment, as well as the 13th, was the reality that Black Americans could not be secure in their persons — in their bodies and reproductive capacities — as long as the badges, incidents and vestiges of chattel slavery endured in the nation’s constitutional order. If, in other words, American slavery rested on reproductive enslavement — the forced birth and breeding of men and women for profit — then anti-slavery had to mean reproductive liberation.
What the anti-abortion movement wants is a dark and cruel inversion of what the Reconstruction framers intended.
First, one cannot argue in favor of abortion on the basis of bodily autonomy. The preborn child may reside within the mother’s womb, but she is a separate, unique human being, with her own body, DNA, blood type, genes, and traits.
READ: Why protecting human life should not be decided by ‘the will of the people’
Reproductive slavery
Second, Bouie is correct in noting that slavery included reproductive slavery; enslaved Americans were entirely at the whims of their supposed owners, who could (and often would) force them to breed as a means of producing future enslaved persons, either to work on the slave owners properties or to sell for profit. It was a horrific, despicable act of injustice that no human being should ever be forced to endure. This is a true instance of forced reproduction.
However, laws protecting preborn children from abortion today are not comparable — certainly not in a society where no one is forced to copulate with another human being in order to create more ‘products’ to be bought and sold for the profit of others. When free adults choose to have sexual intercourse with other free adults, and human beings are created because of those free acts, the pregnancy that results should never be portrayed as a sort of “slavery”; this is unbelievably offensive. People acting as free agents make decisions that have outcomes, and killing another innocent human being because you don’t like that biological outcome is essentially treating that child as property — as a “thing” that can be disposed of, and not as a human with rights.
Under slavery, Black Americans were deprived of their human rights, yet somehow, Bouie is using this as an argument to deprive other human beings of their human rights. All human beings have an intrinsic right to life that does not rely upon their race, gender, size, or abilities.
The false idea that some humans are less human than others
Finally, the 14th Amendment does include protections for the preborn, as explained in a Live Action video by Josh Craddock, a legal scholar with the James Wilson Institute. The 14th Amendment was also specifically cited in the Roe v. Wade decision as having the potential to include rights for preborn children.
“In order to wrongly say the Constitution guaranteed a right to abortion, the Roe court first said that preborn children are not persons entitled to equal protection,” Craddock explained. “‘If personhood is established,’ Justice Blackmun wrote in Roe, ‘the case for abortion collapses, for the fetus’ right to life would then be guaranteed specifically by the 14th amendment.’ Now, the justices in Dobbs were not asked to address the issue of preborn personhood. And the court didn’t have to answer that question to decide the case. But we must ask: are preborn children persons within the original public meaning of the 14th Amendment? Is abortion unconstitutional?”
As Bouie said, the 14th Amendment was put into place after the Civil War to ensure that no person would be deprived of basic rights, such as life or liberty, without due process of law, or be deprived of equal protection. Interpretations of the 14th Amendment — such as wording from when it was ratified, historic state practices related to abortion, and the framer’s understanding of the amendment — overwhelmingly show that preborn children are human beings with an inherent right to basic legal rights and equal protection under the law.
Furthermore, at the time the 14th Amendment was enacted, virtually every state understood and accepted that the legal phrase “person” included preborn life. Abortion was seen as the murder of a child. Objections to including preborn children under 14th Amendment protections, therefore, are nothing more than fundamental misunderstandings of the amendment.
“Legalized abortion discriminates against preborn children because it means our general laws against homicide don’t apply when the victim is an unborn child. And those are precisely the sort of wrongs that the 14th Amendment was designed to dissolve,” Craddock said, concluding, “Preborn children are constitutionally entitled to due process and the equal protection of the law. The Constitution, properly interpreted, prohibits abortion through the 14th Amendment, and everyone who swears an oath to uphold the Constitution has a duty to ensure those rights are protected.”
