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Studies in Law and Medicine

The ‘Right’ to an Abortion, the Scope of Fourteenth Amendment ‘Personhood,’ and the Supreme Court’s Birth Requirement

Americans United for Life published “Studies in Law and Medicine” in the 1970s and 1980s, spotlighting issues pertaining to the human right to life across the bioethics spectrum. As Americans United for Life celebrates our 50th anniversary, we are making these issues available for the first time since their print publication.

The ‘Right’ to an Abortion, the Scope of Fourteenth Amendment ‘Personhood,’ and the Supreme Court’s Birth Requirement by John D. Gorby

The one theme which permeates the United States Supreme Court’s 1977 abortion pronouncements is that the United States Constitution does not and the federal judiciary should not preclude legislative regulation of some aspects of the abortion problem. Indeed, the decisions almost suggest that the essential nature of American society is democratic. The Supreme Court’s 1979 decision holding unconstitutional a Pennsylvania statute requiring physicians performing abortion to attempt to preserve the life of the aborted fetus, if the fetus “may be viable,” does not suggest the contrary, since it appears to be based on the due process concept of vagueness as applied in criminal cases and not upon any substantive expansion of the right to abort.  

A legislative solution to the abortion problem is necessarily based upon the premise that the Constitution is neutral about abortion and does not impose a solution, one way or another. This article denies that premise and points to the question of constitutional personhood. More specifically, Gordy concludes (1) that the Constitution is not neutral about abortion and does indeed impose a solution on the abortion question; (2) that, as Justice Blackman conceded in Roe, if the fetus is a person under the fourteenth amendment, “the plaintiff’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [fourteenth] amendment;” and (3) that the concept of a “person” pin the fifth and fourteenth amendments includes unborn human life. It thus follows that the solution to the abortion problem set forth in Roe as well as that suggested by Justices White and Rehnquist in dissent are constitutionally unsound, both solutions permissing the violation of the fetus’ constitutionally protected right to life without due process of law. More positively, there is substantial historical support for the notion that the due process clause was designed to guarantee access of all persons to the courts for the protection of fundamental rights, that those fundamental rights refer to “life, liberty and property,” and that the unborn human being, as an individual living human being, is a person under the Constitution and is entitles to access to the courts to protect his fundamental right to life.