34 Pages Posted: 20 May 2017
Date Written: May 15, 2017
What should the legal status of human beings in utero be 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 that 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 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 meaning of the Fourteenth Amendment.
Keywords: personhood, fourteenth amendment, constitutional law, constitution, person, abortion, originalism, Scalia
Suggested Citation: Suggested Citation
Craddock, Joshua J., Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion? (May 15, 2017). Harvard Journal of Law and Public Policy, Vol. 40, No. 2, 2017. Available at SSRN: https://ssrn.com/abstract=2970761