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Studies in Law and Medicine

Abortion, Personhood, and the Fourteenth Amendment

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.

Abortion, Personhood, and the Fourteenth Amendment by Victor G. Rosenblum

Historical evidence clearly demonstrates that the Fourteenth Amendment was intended to protect all human beings, and that many of the state legislatures which brought the Amendment into being through ratification contemporaneously regarded the unborn, from conception, as human beings who ought to be protected by law. 

The discussion today is in large part a consequence of the failure of the Supreme Court to exercise appropriate restraint in 1973. The Justices donned legislative garb in ruling that states violate the due process clause of the Fourteenth Amendment insofar as they controvert the right to privacy through state laws protecting the life of the child in the womb. Restraint would have led Justice Blackmun, who wrote for the majority, to leave the crucial issue of regulation of abortion to the traditional legislative powers of each state. Such restraint was especially warranted in light of the Court’s own proclamation that “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

If they majority of the Court thought it inappropriate to speculate on the difficult question of when life begins, how could they morally, ethically, or constitutionally authorize what, even from their vantage point, could be the demise of life? If, as a legal matter, the majority believed that life could begin before the third trimester, how could the same justices who had properly placed the most stringent of constitutional restrictions on the death penalty for criminals place a new judicial seal of approval on the destruction of life of innocents for reasons of convenience or caprice? Far from providing rational answers to difficult questions, the Supreme Court’s legislation through the Roe and Doe decisions simply abolished protection for what even they had termed “potential life,” and, as numerous scholars have pointed out, avoided or misinterpreted the history of protection of the unborn.