Josh Craddock, Legislative Strategist
Noah Brandt, Vice President of Communications
WHAT ARE HUMAN BEINGS?
WHEN DO WE BECOME HUMAN?
A human being is a whole, living member of the species Homo sapiens. Unlike parts of a human being—such as skin cells or gametes—a human being is an integrated whole and a genetically distinct organism, even at the earliest stages of its existence.
“Each human being possesses the principles for internally directed growth and maturation as a distinct human organism.”1 In other words, each human individual directs its own integral organic functioning and development into and through each sequential life stage—growing from zygote, to embryo, to fetus, to infant, to child, to adolescent, and (finally) to adult. And at each of those stages, you were the same human being that you are today.
Modern developmental biology and medical technology affirm the indisputable reality that we are human from the first moments of our existence—that is, from fertilization. Crack open any embryology textbook, and you will see that “the development of a human begins with fertilization,”2 and that fertilization “initiates the life of a new individual.”3
1 Robert P. George, “Stem-Cell Research: Don’t Destroy Human Life,” reprinted in, The Future is Now: American Confronts the New Genetics 290 (2002).
2 T.W. Sadler, Langman's Medical Embryology 3 (7th ed. 1995).
3 Bradley M. Patten, Foundations of Embryology 3 (1964).
“After fertilization has taken place, a new human being has come into being. It is no longer a matter of taste or opinion… it is plain experimental evidence. Each individual has a very neat beginning, at conception.”
— Dr. Jerome Lejeune, father of modern genetics
As Dr. Micheline Mathews-Roth of Harvard University Medical School said, “it is scientifically correct to say that an individual human life begins at conception … and that this developing human always is a member of our species in all stages of its life.” It is a scientifically well-established fact that every human being begins his or her life cycle at fertilization.
Every living human being possesses human rights. The American Founders believed that unalienable human rights stemmed from human nature itself. Despite inequalities in intelligence, social condition, wealth, or appearance, human beings possess a fundamental, qualitative equality. All humans are equal to one another in a way that humans and animals are not. For that reason, each human being has equal natural rights—such as the rights to life and personal security. According to the Declaration of Independence, it is “to secure these rights, Governments are instituted among Men.”
BUT ARE THE PREBORN “PERSONS?”
Many pro-abortion advocates will admit that the child in the womb is a living human being, but object to the idea that he or she is a person with value. They point to certain contemporary philosophers—such as Peter Singer and Steven Pinker—who suggest that personhood can only be assigned to individuals who are self-aware,
have memory of the past and anticipation of the future, or have a high enough IQ.
But these criteria lead to absurd conclusions. Why should individuals with more advanced intellect or noble aspirations be considered “persons” more so than those with less brain development or less lofty goals?
A criterion for personhood that depends on certain functions of human activity implies that individuals who perform the chosen function more excellently should have higher human value. Individuals suffering from severe Alzheimer’s disease or under general anesthesia, who may not be self-aware or able to create future expectations, could no longer be considered persons. We know, however, that the human under general anesthesia retains his personal identity despite his temporary lack of selfawareness, so his personhood must cohere in his underlying nature.
Living human beings are valuable because of what they are, not because of some arbitrary attribute that comes in varying degrees and which may be gained or lost during their lifetimes. Human beings have an essential nature that equips them with the capacity to develop rationality and personal relationships. That human nature must be intrinsically valuable, otherwise it becomes impossible to say why objective human rights apply to anyone and impossible to claim that “all men are created equal.”
“We hold these truths to be selfevident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life…”
— Thomas Jefferson, Declaration of Independence
“Everyone has the right to recognition everywhere as a person before the law.”
— Article 6, Universal Declaration of Human Rights
The very notion of a human non-person is a moral atrocity. Every time a society has used the concept of “personhood” to exclude a certain disfavored group of human beings from legal protection, human rights abuses have multiplied.
In the United States today, however, “unwanted” children in the womb are systematically denied personhood. The elderly and the handicapped are at risk too. Why is it that, for them, being human is not enough?
THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION
Legally speaking, “persons” are guaranteed the fundamental rights of individuals, including the right to life. Historically, abuses of personhood have led to the genocide of groups deemed “non-persons” by more powerful political or social groups. For example, some state laws denied personhood to enslaved African-Americans, allowing them to be treated as property that could be disposed of according to the arbitrary will of another. The racial distinctions used to label certain groups “non-persons” were conveniently invented to justify the violation of their rights.
Adopted after the Civil War in 1868, the Fourteenth Amendment to the Constitution was designed to correct these abuses. The amendment’s first section begins by defining United States citizenship: “All persons born or
naturalized … are citizens of the United States.”
Citizens are entitled to special privileges and immunities. But the Citizenship Clause simply defines which persons are citizens; it does not define “person” or say that only citizens are persons. Indeed, it clearly acknowledges persons who are not citizens.
The rest of Section 1 applies to “any person,” not just citizens. It provides that “no state shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These due process and equal protection guarantees apply to everyone, regardless of citizenship, born and preborn.
The drafters and ratifiers of the Fourteenth Amendment expected it to apply not only to freedmen and black Americans, but to every member of the human species within the jurisdictional reach of the Constitution. That’s why they intentionally selected the expansive language of “any person,” to ensure that no state would ever again subject any class of persons to inferior and invidiously discriminatory treatment.
Senator Jacob Howard, who sponsored the amendment in the Senate, declared its purpose was to “disable a state from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty and property without due process.”4 Even the lowest and “most despised of the [human] race” were guaranteed
4 Congressional Globe, 39th Cong., 1st Sess. 2766 (1866).
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
— U.S. Constitution, Fourteenth Amendment, Section 1 (1868)
equal protection. As Justice Hugo Black later put it: “the history of the [Fourteenth]
Amendment proves that the people were told that its purpose was to protect weak and helpless human beings.”5
What’s more, the historical evidence is overwhelming that when the amendment was ratified, the word “person” had a settled public meaning that included any child living in the womb. Based on authorities such as Lord Coke and William Blackstone, as well as landmark English cases, state high courts in the years leading up to 1868 declared that the preborn child throughout pregnancy “is a person” and hence, under “civil and common law,” “to all intents and purposes a child, as much as if born.”6
By the end of 1868, nearly every state had enacted statutory bans on abortion, and at least twenty-eight jurisdictions labeled abortion as an “offense against the person.” In twenty-three states and six territories, laws referred to the preborn individual as a “child.” In fact, the same Ohio legislature that ratified the Fourteenth Amendment called abortion “at any stage” nothing less than “child-murder.” Thus, at the time of the Fourteenth Amendment’s adoption, the public widely understood “person” to include prenatal life.7
5 Conn. Gen. Life Ins. Co. v. Johnson, 303 U.S. 77, 87 (1938) (Black, J., dissenting).
6 Hall v. Hancock, 32 Mass. (15 Pick.) 255, 257–58 (1834) (Shaw, C.J.).
7 See Joshua J. Craddock, Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?, 40 Harv. J.L. & Pub. Pol’y 539, 552 (2017).
ROE V. WADE
For fifty years, Roe v. Wade denied legal personhood to preborn children and required states to allow abortion. The seven men forming the majority said the right to privacy includes a woman’s decision to end the life of her preborn child, effectively through all nine months of pregnancy. This decision was widely criticized, even by legal scholars who support abortion.
To reach its well-known conclusion that the Constitution guaranteed a right to abortion, the Roe Court first ruled that the preborn are not “persons” entitled to equal protection. If preborn children were persons, Roe acknowledged, the case for abortion “collapses, for the fetus’s right to life would then be guaranteed specifically by the [Fourteenth] Amendment.”8
During the initial arguments in Roe, Texas argued that “the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment.” The author of the Roe majority opinion, Justice Harry Blackmun, seized on the fact that Texas’s lawyers could not cite a case in which a fetus was “a person within the meaning of the Fourteenth Amendment.”
But in fact, a three-judge panel on a federal district court in Steinberg v. Brown had determined that the rationale of Griswold v. Connecticut—the case that discovered a “right to privacy” protecting contraception for married 8 Roe v. Wade, 410 U.S. 113, 156–57 (1973).
“If this suggestion of personhood is established, the appellant’s case [for abortion], of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.”
—Roe v. Wade (1973)
couples—did not extend to abortion, and distinguished between contraception (which prevents the creation of human life) and abortion (which destroys existing human life). Rejecting the privacy argument, the judges ruled that:
The legal conclusion in Griswold as to the rights of individuals to determine without governmental interference whether or not to enter into the process of procreation cannot be extended to cover those situations wherein, voluntarily or involuntarily, the preliminaries have ended, and a new life has begun. Once human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it.9
And the Supreme Court had also recently held in Levy v. Louisiana that the Equal Protection Clause extends to all those who “are humans, live, and have their being.”10 If Blackmun had applied the Levy standard to Roe, “the Court could not have avoided passing on the factual ‘biological’
9 Steinberg v. Brown, 321 F.Supp. 741, 746–47 (N.D. Ohio 1970).
10 391 U.S. 68, 70 (1968).
question of whether unborn children are live human beings.”11
Instead, the Roe Court ignored that question. Pointing to an alleged lack of consensus about when life begins, the Court asserted that they “need not resolve the difficult question of when life begins,” and thereby failed to resolve the question at the crux of the case.12
After admitting its ignorance, the Court’s only responsible reaction would be to “err on the side of life, and therefore to prohibit virtually all abortions.”13 But instead, much like a hunter who shoots into a quivering bush without first discovering the nature of his victim, the Court decided de facto that the human being in utero “is a non-person without stopping to consider whether or not he is a human being.”14
Of course, the Roe Court could have easily accessed the scientific and medical answer as to whether a preborn child qualifies as a distinct human being. After all, that answer had been available for over a century at the time of Roe. In the decade before Roe, Dr. Bradley Patten of Michigan Medical School wrote in his 1964 textbook, Foundations of Embryology, that “the union of two such sex cells to form a zygote constitutes the process of fertilization and initiates
11 Robert M. Byrn, An American Tragedy: The Supreme Court on Abortion, 41 Fordham L. Rev. 807, 842 (1973).
12 Roe, 410 U.S. at 159.
13 Francis J. Beckwith, The Supreme Court, Roe v. Wade, and Abortion Law, 1 Liberty U. L. Rev. 37, 56 (2006).
14 Charles E. Rice, Overruling Roe v. Wade: An Analysis of the Proposed Constitutional Amendments, 15 B.C. Indus. & Com. L. Rev. 307, 311 (1973).
the life of a new individual.”15
The Court failed to distinguish between the scientifically and medically answerable question about when a new human organism’s life begins, and the ethical and legal question of whether that life possesses intrinsic value and demands protection. The Roe Court thus flunked biology on the first question, and flunked legal history and ethics on the second question.
DOBBS V. JACKSON WOMEN’S HEALTH ORGANIZATION
The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization was a historic moment in American history. By overturning Roe, the Supreme Court vindicated the constitutional order and erased a grievous moral stain on our national honor. 16
The holding of Dobbs is simple: “the Constitution does not confer a right to abortion.” In other words, Roe was wrong when it said that the Fourteenth Amendment required states to allow abortion. The Court observed that the right to abortion is not deeply rooted in the Nation’s history and tradition. Until the latter part of the 20th century, there was no support in
15 Bradley M. Patten, Foundations of Embryology 3 (1964).
16 Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2243 (2022).
American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State.17
The Court in Dobbs did not, however, address whether states must prohibit abortion. That’s because the Court did not decide whether preborn children are “persons” entitled to the equal protection of the laws. Mississippi did not ask the Court to address the issue, and addressing that issue wasn’t strictly necessary to decide the legal question presented to the Court. By reserving any decision on preborn personhood for the future, the Court, by implication, “return[ed] the issue of abortion to the people’s elected representatives.”18 But this practical implication of the Court’s ruling should not be confused with a statement of legal principle.
Despite some incautious language about returning abortion to the electoral processes, the logic of Dobbs actually militates toward recognizing the preborn child’s personhood and right to equal protection.
“The Constitution does not confer a right to abortion.”16
17 Id. at 2248.
18 Id. at 2243.
— Dobbs v. Jackson Women’s Health Organization, June 24, 2022.
The Dobbs majority relied in part on “ample evidence that the passage of” pro-life laws in the 1800s was “spurred by a sincere belief that abortion kills a human being.”19 And no fewer than five times the majority opinion observed that abortion is “critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty’ … because it destroys what [Roe and Casey] called ’fetal life’ and what the [Mississippi] law … describes as an ‘unborn human being.’”20 The majority repeatedly distinguished other cases on the grounds that “‘[a]bortion is a unique act’ because it terminates ‘life or potential life.’”21 Central to the Dobbs holding, then, is the unavoidable fact that abortion takes a human life.
Furthermore, in the course of rejecting the viability standard announced in Planned Parenthood v. Casey, the Dobbs Court took the occasion to criticize functionalist accounts of personhood. The Court argued that if “sentience, self-awareness, the ability to reason, or some combination thereof” are taken as “essential attributes of ‘personhood,’” then “it would be an open question whether even born individuals, including young children or those afflicted with certain developmental or medical conditions, merit protection as ‘persons.’”22 The Court’s skepticism that personhood may be gained or lost during a human’s lifetime based on an
19 Id. at 2255.
20 Id. at 2243.
21 Id. at 2277.
22 Id. at 2259.
individual’s capacity to exercise certain functions suggests acceptance of an essentialist account of human personhood, under which every living member of the human species is a person.
Far from precluding prenatal personhood, then, Dobbs actually takes strides toward its future recognition.
THE FUTURE OF EQUAL PROTECTION FOR THE PREBORN
Dobbs was a generational win, an answer to prayer, and a monumental political and legal achievement.
But our work is not yet done. Abortion remains legal in most states, and millions of preborn children lack protection from the violent killing of abortion. The entire pro-life movement seeks the ultimate abolition of abortion. Now that Roe is gone, the pro-life movement must direct its efforts to achieving our ultimate goal: equal protection for children in the womb.
To be pro-life is to affirm that innocent human life deserves legal protection from violence, both before and after birth. There can be no distinction between the biological humanity of that living being and its legal personhood. A new human being is created at the moment of fertilization. A human being is always a human person. Every human has human rights.
What would equal protection mean in practice?
The immediate consequence would be that generally applicable protection of state laws, such as those afforded against homicide, would in principle apply to killing preborn children through elective abortion.
Every branch and level of government must take steps to secure equal protection for the preborn.
• Localities should pass ordinances to secure protections for preborn children under the Fourteenth Amendment and to supplement enforcement of federal law prohibiting the interstate transport of abortion drugs and devices.23 The Constitution and federal law are both supreme over any contrary state laws that purport to allow elective abortion.
• States retain the primary duty to protect the unalienable rights of all human beings within their jurisdictions, the foremost of which is the right to life. States have a responsibility to exercise their police powers (their powers to promote public health, safety, and morals) to prohibit abortion. State legislatures can pass legislation protecting human life from conception, declaring that all human beings are legal persons, and invoking their obligation to ensure that preborn children are given the equal protection of the laws. Governors can issue executive orders to the same effect, which would be binding on all state departments and agencies. Eighteen states
23 See 18 U.S.C. §§ 1461, 1462.
allow citizen-initiated referendums or constitutional amendments, which can shape public opinion and protect preborn life. Participatory federalism efforts such as these strengthen the political atmospherics of the constitutional arguments at the federal level, and give states and the people roles to play in the constitutional interpretive process.
• Congress should act under Section 5 of the Fourteenth Amendment to “enforce . . . by appropriate legislation” the Constitution’s protections for unborn persons. It is imperative to obtain passage of federal legislation that, as previously described, would recognize constitutional personhood and equal protection for preborn children.
• The President should exercise his independent constitutional authority to “take Care that the Laws be faithfully executed.” The president swears an oath to preserve the Constitution of the United States, which entails an independent duty to interpret it so that it can be executed. The next pro-life president must issue an executive order recognizing the preborn as constitutional persons under the Fourteenth Amendment. Such an order would constitute a binding and authoritative interpretation of the Constitution within the executive branch, including its constitutive departments and agencies. The president would direct departments and agencies to examine their regulations and programs to ensure they align with the order, and bring regulations and
programs into compliance as necessary.
• The Judiciary must apply the original meaning of the Equal Protection Clause to decide cases that come before them. There is presently no binding Supreme Court precedent holding that preborn children lack personhood, so lower courts are free to recognize the Fourteenth Amendment’s protections for preborn children. And in a future case, the Supreme Court should declare that permissive state abortion laws violate the Fourteenth Amendment because they deny equal protection to unborn children.
In his “House Divided” speech, Abraham Lincoln predicted that the United States could not endure “half slave and half free…. It will become all one thing or all the other.”24 And freedom ultimately triumphed. Lincoln defeated the relativistic philosophy of “popular sovereignty” espoused by his 1858 debate opponent Stephen Douglas because he understood that no state or democratic process can legitimately deny those unalienable rights with which the Creator has endowed his children.
Echoing those words more than a century later, Ronald Reagan declared that “our Nation cannot continue down the path of abortion, so radically at odds with our history, our heritage, and our concepts of justice.”25 For that reason, he invoked the Fourteenth Amendment and said, “the well-
24 Abraham Lincoln, Abraham Lincoln’s Speeches
72 (Lucius Eugene Chittenden ed., 1895).
25 Proclamation No. 5761 of January 14, 1988, 53 Fed. Reg. 1464, 1465 (Jan. 19, 1988).
being and the future of our country demand that protection of the innocents must be guaranteed and that the personhood of the unborn be declared and defended throughout our land.”26
Yes, America is divided on abortion after Dobbs But life will triumph. The same constitutional amendment that ensured equal protection for black Americans after the Civil War also protects defenseless children in the womb—from New York to California, and everywhere in between. After all, “One’s right to life … may not be submitted to a vote; it depends on the outcome of no elections.”27
It falls to us to ensure that preborn children are granted the equal protection of the laws. That is our unified paradigm for victory, and nothing less will be acceptable.
WHAT CAN I DO?
As Napoleon wisely observed, “The men who have changed the universe, have never achieved their object by gaining the governors, but always by exciting the populace.”28 Rather than waiting for judges to rule, or for political or religious leaders to take action, the grassroots can rise up to end abortion and secure equal protection. When the people lead, the leaders will follow.
What can you do to secure equal protection for the preborn and reclaim the dignity of the human person in America? It seems like a big job, but
26 Id. at 1464–65.
27 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).
28 Napoleon Bonaparte, Political Aphorisms, Moral and Philosophical Thoughts of the Emperor Napoleon 56 (James Alexander ed., 1848).
together, our small efforts can accomplish this goal.
Here are five things you can do to promote equal protection, starting today, in your community:
1. Turn your city into a sanctuary city for the preborn. Talk to your mayor or local city council and urge them to introduce a local resolution that would ensure equal protection and enforcement of federal law.
2. Minister outside your local abortion facility and redirect women to life-affirming pregnancy resource centers. Block out a day of the week that you can go to the abortion facility with your friends to help parents choose life and peacefully put pressure on the facility to close.
3. Become a digital activist. You can start changing hearts and minds on abortion right now by sharing Live Action’s videos, such as our “Baby Olivia” video on fetal development, or our “What Is Abortion?” videos on social media. These are statistically proven through market research to change minds from pro-abortion to pro-life. You can even sign up to become a Live Action Ambassador to get additional training and materials.
4. Support your local pregnancy resource center and charities that help mothers and fathers choose life. Give generously to your local life-affirming pregnancy center or pro-life
organizations that endorse equal protection for the preborn. Volunteer or get trained to help out if you can.
5. Commit yourself to a love-based, commitmentbased sexual ethic. According to the New York Times, 86% of women who have abortions are unmarried; 60% already have a child.29 Abortion culture is downstream from hook-up culture. The solution is respect and love—and sex only in the context of lifelong love and commitment.
The choice is before us. What will we choose? Equal protection or selective justice? A future of life or of death? Roe v. Wade is finished, but the work of the pro-life movement to secure equal protection for all is just beginning.
29 Margot Sanger-Katz et al., Who Has Abortions in America?, N.Y. Times (Dec. 14, 2021), https://www.nytimes.com/ interactive/2021/12/14/upshot/who-gets-abortions-in-america.html.
