Does the 14th amendment prohibit abortion?
JMHACLJ at aol.com
JMHACLJ at aol.com
Mon Sep 12 11:29:47 PDT 2005
In a message dated 9/12/2005 1:38:39 P.M. Eastern Daylight Time,
gillman at usc.edu writes:
Do you take the position that, as a constitutional matter, "abortion should
be left to the states to regulate as they wish" or "the 14th amendment
requires the states to treat abortion as equivalent to infanticide"?
"All persons born or naturalized in the United States are citizens of the
United States and of the state wherein they reside. No State shall deprive any
person of life, liberty, or property without due process of law."
Is that the text? I think I have recalled it correctly.
Clearly, by birth not yet having occurred, an unborn child does not qualify
as a citizen of the United States. Congress could, in its plenary authority
over naturalization, enact a naturalization law that made all lives conceived
within the United States, even though not yet born, to be citizens of the
United States (obviously, the Court might recoil on this point, but the power
of naturalization is Congress'). Short of that, an unborn child is left to
whatever dimensions of protection afforded by the Constitution to persons that
are not citizens of the United States.
The intractable problem of personhood lays underneath this issue. It is why
Blackmun had to conclude, against the weight of science and law, that
children before birth are not "persons." Because, even if not citizens by
naturalization or birth, he knew that the Court could not sustain the abortion
liberty because of its brutal effects against even non-citizen persons.
For those old enough to recall it, this issue of personhood lay at the heart
of Senator John East's Hearings on Senate Bill 158, back in the early 1980s.
And the danger that the Court's definition of personhood might be
undermined by, and overturned as a result of, a congressional examination of
personhood, prompted a tizzy amongst medical and legal elites, who sent in the letters
of objection by the bushel basket.
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