One of the tragic errors by the Supreme Court in its 1973 decision Roe v. Wade was the holding that unborn children are not legal “persons” within the meaning of the Constitution. When the Court overruled Roe this summer in the Dobbs decision, they unfortunately left this unjust holding unchanged.
This past week, the Court missed an opportunity to right this wrong. They declined to hear a case that would have given them the opportunity to declare that unborn children should be included in the Fourteenth Amendment’s guarantees of “due process” and “equal protection” of the law.
The case was entitled Jane Doe v. Mckee. It was a challenge to a radical abortion bill enacted in Rhode Island in 2019. That law was passed explicitly to guarantee unrestricted abortion access in case the Supreme Court overruled Roe. It was similar to abortion expansion bills passed in many other states, including New York’s notorious “Reproductive Health Act.”
It’s worth going through some of the provisions of the law, not only to understand what happened at the Supreme Court, but also to understand how extreme pro-abortion advocates have become. The law, which has the Orwellian title of “Reproductive Privacy Act” effectively enacted the following:
permitted unrestricted abortion prior to fetal viability;
permitted unrestricted abortion after fetal viability when necessary to preserve the health or life of the mother, with no limitation on what would constitute a “health” concern;
repealed the ban on partial-birth abortion;
repealed a law prohibiting fetal homicide;
repealed the statute that recognized fetal personhood from the moment of conception (a provision that had previously been ruled unconstitutional based on Roe); and
repealed criminal penalties for abortions, which was originally enacted in 1861.
The law was challenged by several pro-life individuals and groups. Their argument was based primarily on the legal theories called originalism and textualism. These are very popular among conservative scholars, and with a majority of the Supreme Court justices. In a nutshell, this means that the constitution must be interpreted according to the ordinary meaning of the actual text itself, and consistently with the public meaning at the time it was adopted.
So the challengers looked primarily to history. In the course of Anglo-American law, it was generally accepted that the term “person” encompassed all human beings, born or unborn. Indeed, the legislators who drafted the Fourteenth Amendment made clear that they intended the term “person” to be broadly interpreted. Modern law has also traditionally recognized the rights of unborn people in areas like inheritance rights, trusts, and personal injuries. And the federal law banning partial-birth abortions, which the Court had upheld years ago under Roe, certainly recognized that unborn children have some legal status and are worthy of protection.
They thus called upon the Court to rule that the Fourteenth Amendment’s Due Process and Equal Protection Clauses protect unborn “persons.”
These are all solid legal arguments. The clear historical evidence for fetal personhood was laid out in two brilliant amicus briefs that were filed in Dobbs by philosophers John Finnis and Robert P. George and by abortion history expert Joseph Dellapenna. Justice Alito’s majority opinion in Dobbs cited the same kind of evidence in finding that there was no historical basis for a right to abortion.
But the Rhode Island courts soundly rejected the case, relying heavily on Roe‘s denial of fetal personhood. That led the challengers to the Supreme Court. But the Court refused to hear the case, with neither an opinion nor dissent. That sends a clear signal that the Court has no interest in addressing the question of fetal personhood. When they said in Dobbs that abortion was now an issue for states to resolve, they meant it.
Fetal personhood’s losing streak
This defeat highlights one of the inherent risks of litigation. If you get too far ahead of legal doctrine and public opinion, you may wind up making things worse.
The track record of the personhood strategy has been dismal. Bills and ballot measures have consistently failed. The Supreme Court and every state high court that has considered the issue have rejected it. This litigation extends the unbroken losing streak, and thereby casts even more doubt on the credibility of the strategy and the possibility of any kind of success.
The terrible irony is that even if this case had been successful, abortion would not have been automatically outlawed. Why?
The reason lies in what is called the “state action doctrine.” Shortly after the ratification of the Fourteenth Amendment in 1868, the Supreme Court held that the Due Process or Equal Protection clauses only apply to actions by the state, not private parties.
This is certainly wrong as a matter of the original meaning of the amendment. The amendment was clearly understood by its framers to prohibit selective non-enforcement of the laws protecting freed slaves from violence and persecution. It meant that the states had to apply the laws equally to every “person” in their jurisdiction. It thus created a duty for the state to act to ensure that everyone is being treated fairly. Under this original meaning, recognition of fetal personhood would require the states to protect them in the same way they protect born people.
Nevertheless, the Court has consistently upheld the state action doctrine and there is absolutely no indication that they are inclined to back away from it. As a result, we are operating in a legal environment where the Due Process and Equal Protection Clauses do not apply to abortions performed by private parties. We may wish it were otherwise, but wishes don’t make laws.
So even if we were to convince the Supreme Court to recognize the personhood of unborn children, there would remain more work to do. We still have to go state by state to enact specific abolition laws or constitutional amendments along the lines of the Thirteenth Amendment. That will be a heavy lift, as we’ve seen in the legislative and litigation battles after Dobbs. There is no magic bullet. The path ahead will require patience and endurance.
In the aftermath of the long-sought victory in Dobbs, there is a natural temptation to push forward rapidly to a final victory—full legal protection of unborn children and the abolition of abortion. All pro-lifers share this goal. But we are a long way off from achieving it. Much more work must be done, both in the legal arena and in the realm of public opinion.