Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?

Abstract

What should be the legal status of human beings in utero under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain unfettered authority to make abortion policy?

The late Justice Scalia famously argued for the latter position and pledged he would strike down a federal ban on abortion. But is this view consistent with the original meaning of the term “person”? Using originalist interpretive methods, this paper argues that preborn human beings are legal “persons” within the original meaning of the Fourteenth Amendment.

Keywords: personhood, fourteenth amendment, constitutional law, constitution, person, abortion, originalism, Scalia