Abortion is Unconstitutional Because Unborn Children are “Persons” Under the 14th Amendment

Opinion   |   Micaiah Bilger   |   Jul 30, 2021   |   11:28AM   |   Washington, DC

Unborn babies were recognized as “persons” under the law for more than 100 years before Roe v. Wade and their right to life should be restored, two prominent legal scholars argued this week to the U.S. Supreme Court.

Townhall reports Professor John Finnis at the University of Notre Dame Law School and Professor Robert P. George at Princeton University filed an amicus brief Thursday presenting a detailed history of American law that, according to their research, recognized unborn babies as persons under the Fourteenth Amendment up until Roe v. Wade in 1973.

Their argument is one of many that were filed with the Supreme Court this week as the justices prepare to hear a major abortion case out of Mississippi. At issue in the case is the question of “whether all pre-viability prohibitions on elective abortion are unconstitutional.” It is based on a Mississippi law that prohibits abortions after 15 weeks of pregnancy.

In their brief, Finnis and George refuted the idea that the U.S. Constitution is “silent” on the matter of whether an unborn baby is a legal “person” under the Fourteenth Amendment.

Roe v. Wade conceded that if … ‘the fetus is a “person” within the language and meaning of the Fourteenth Amendment,’ the case for a constitutional right to abortion ‘collapses,’” they began.

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The professors cited 19th century laws and court cases, statements from prominent medical groups and experts, and other evidence to show that an unborn baby was considered “a person” from conception under the law and “’to all intents and purposes a child, as much as if born.’”

In response to claims that the law did not protect unborn babies until “quickening,” the time when a mother could feel her unborn baby move, they pointed to a 1959 statement from the American Medical Association.

The AMA “dismissed the fiction ‘that the foetus is not alive till after the period of quickening’ and urged correction of any ‘defects of our laws … as regards the independent and actual existence of the child before birth as a living being,’” they wrote.

Here’s more from Townhall:

According to Finnis, unborn children are properly understood as “persons” under the 14th Amendment’s equal protection clause, and state-level homicide laws therefore cannot discriminate by protecting live people but not unborn people.

The upshot under this logic is that overturning Roe and its 1992 successor Planned Parenthood v. Casey would not merely return abortion regulation to the ambits of the various states, as earlier conservative legal titans such as the late Justice Antonin Scalia long argued. Rather, it would mandate banning the bloody practice nationwide.

In Roe and later Planned Parenthood v. Casey, the Supreme Court prohibited states from banning abortions before an unborn baby is viable. As a result, the U.S. is one of only seven countries in the world that allows elective abortions after 20 weeks of pregnancy.

Most Americans believe our abortion laws are too radical, and states should be allowed to protect unborn babies from abortions.

A new AP-NORC Center for Public Affairs Research poll found that a strong majority of Americans believe states should be allowed to ban abortions after the first trimester. According to the poll, 65 percent said most or all second-trimester abortions should be illegal; the number increased to 80 percent in the third trimester. Gallup polls also consistently find that a majority of Americans want all or most abortions to be illegal.

Since the Supreme Court ruled on Roe in 1973, about 63 million unborn babies have been killed in abortions.