Written by Keith A. Mathison |
Wednesday, July 20, 2022
We should be extremely grateful for the overturning of Roe v Wade. It is a true milestone that many did not believe they would ever see in their lifetime. But the fight isn’t over. Unborn children will continue to be killed in those states which continue to treat the unborn as less than human. We should prepare for the work that remains if we are to protect the lives of all unborn children in these United States.
On June 24, 2022, the Supreme Court of the United States issued a landmark decision in the case of Dobbs v Jackson Women’s Health Organization and overturned the 1973 Roe v. Wade decision. It also overturned the 1992 Planned Parenthood v. Casey decision. In Dobbs v Jackson, the Supreme Court ruled that the U.S. Constitution “does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives” (Dobbs v Jackson, p. 69; cf. pp. 78–79). In short, the legality of abortion is now in the hands of each of the fifty states.
For those who oppose abortion, this represents progress for which we should be thankful. Prior to the Dobbs decision, individual states could not legally protect the lives of unborn human beings in any meaningful way. When attempts to do so were made, those laws were inevitably found to be in conflict with Roe or Casey or both and struck down. Now, after the Dobbs decision, such laws are possible. The immediate task now of those who oppose abortion is to work to enact state laws that protect the lives of unborn children.
The fact that Dobbs has made this a real possibility is good news, but it must be understood that it is not unqualified good news. Just as it is now possible for states to enact laws that protect the lives of unborn human beings, it also remains possible for states to allow unrestricted abortion on demand. Some states will move in one direction, while others will move in the opposite direction. In other words, the fight isn’t over yet. The United States still has a long way to go before the lives of the unborn are protected in every state.
The fight will not be won until and unless the status of the fetus is legally and permanently resolved at a national level. In the Dobbs decision, the Supreme Court explicitly refused to address that question. The decision states: “The contending sides also make conflicting arguments about the status of the fetus. This Court has neither the authority nor the expertise to adjudicate those disputes . . .” (p. 65). In other words, the legal status of the fetus is in the hands of individual state legislatures. Some of these state legislatures will determine that the fetus is a human person deserving of the same rights as any other human person. Other state legislatures will determine that the fetus is not a human person and not deserving of legal protection.
In one sense, the United States is in a position similar to the position it was in prior to the Civil War with regard to the status of people of African descent. Before the Civil War, some states passed laws acknowledging the fact that people of African descent were just that – people, human persons deserving of the same rights as every other human person. Other states determined that they were property and denied them the rights of human persons. This issue was not resolved until the 13th, 14th, and 15th amendments to the Constitution were adopted between 1865 and 1870. These amendments abolished slavery and mandated the same protection under the law for people of African descent as for any other human person. Obviously, the change in the Constitution did not automatically cause a corresponding change in the hearts of those who believed people of African descent were less than fully human, but it was step in the right direction.
Something along these lines is what is now required in the United States if we are to take another step in the right direction with regard to the abortion question. The current Supreme Court does not believe it possesses “the authority either to declare a constitutional right to abortion or to declare a constitutional prohibition of abortion” (See Dobbs v. Jackson, J. Kavanaugh, Concurring, p. 5). It appears that the majority of this Court believes the Constitution as it stands is silent on the status of the fetus.
I’m not convinced that this is the case. I believe that an argument can be made that something about the status of the fetus can be inferred from the wording of the 14th amendment. Section 1 of the 14th amendment to the United States Constitution reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The first thing that must be observed is that this amendment was originally written in the context of Reconstruction immediately after the Civil War. It is explicitly addressing the status of former slaves. This does not mean, however, that it cannot be applied to other related issues, such as the status of the fetus. In the first place, the Supreme Court has long acknowledged that the words of the constitution may extend beyond the matter they were originally intended to address. Second, the very use of the word “born” in the first sentence of the amendment invites such an application. When carefully considered, it can be seen that the words of the 14th amendment implicitly protect the lives of unborn children.
The first sentence begins “All persons born or naturalized in the United States . . .” These persons are then said to be citizens of the United States and citizens of the state in which they reside. In other words, those who are born or naturalized in this country are citizens of this country. At this point, then, we have a reference to “persons” and to “citizens.” The amendment goes on to say that no state “shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This refers to those who have been born or naturalized in this country and have therefore become citizens. The amendment then continues, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The category of person is a broader category than that of citizen. It certainly includes people in this country who have not yet been naturalized and who are not yet citizens. In other words, a non-citizen is still a person who is owed protection under the law. The important question is whether the unborn are also persons who are owed protection under the law.