Does the 14th amendment prohibit abortion?

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 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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