The Heritage Foundation – The Fourteenth Amendment protects the rights of “any person” to due process when a state deprives him or her of life, liberty, or property, and to the “equal protection of the laws.”
By overruling Roe v. Wade, the Supreme Court eliminated Roe’s deeply flawed holding that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”
Since a sound case can be made that interpreting “person” to include all human beings is consistent with the Fourteenth Amendment’s original public meaning, Congress should do so for purposes of its power to enforce the Fourteenth Amendment.
The Fourteenth Amendment’s Equal Protection Clause is more suitable than the Due Process Clause as a basis for enforcement legislation and Congress may create a cause of action by the Attorney General against states that deny to prenatal persons the equal protection of the laws.
This occurs when a state prohibits killing a person after—but not before—birth or prohibits killing prenatal persons in some circumstances but not others.
The success of this strategy will depend on the legal standard the courts will apply.
In the absence of contrary Supreme Court precedent, Congress can, for purposes of its Fourteenth Amendment enforcement power, legislatively recognize a fundamental right to life for Fourteenth Amendment persons or recognize prenatal persons as a suspect class.
Either approach prompts the courts to apply strict scrutiny, requiring states to show that failing to prohibit abortion is the least restrictive means of achieving a compelling government purpose.
Congress can strengthen this and other pro-life legislative goals, as well as contribute to success in litigation challenging them, by establishing a comprehensive record on key issues including:
- The original public meaning of the Fourteenth Amendment;
- America’s history and tradition of increasing legal protection for prenatal life;
- The medical and scientific consensus that, as Texas argued in its Roe brief, “human life is a continuum, which commences in the womb…. The child is as much a child in those several days before birth as he is in those several days after” …
