The U.S. Constitution Prohibits Abortion in Every State

 

 

The U.S. Constitution Prohibits Abortion in Every State
by
James Scott Trimm

On June 24th 2022 SCOTUS overturned Roe v. Wade and returned the question of Abortion back to the states.  But SCOTUS did not go far enough.  In reality the U.S. Constitution prohibits abortion in any state in the Union.  

 

Person's Right to Life Under the 14th Amendment

We read in the 14th Amendment:

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.

Notice that the opening clause defines citizens of the United States as "All persons born or naturalized in the United States, and subject to the jurisdiction thereof"  however no such qualification is attached to the words "person" in the clause "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." which implies that these two clauses apply to persons who are "born" or "unborn".  Had the framers of this amendment indented these later two clauses to apply only to "persons born", then they could have, and certainly would have, added the same qualifier "persons born" rather than simply "persons" that was used in the opening clause defining who is a citizen. Thus a "person" (born or unborn) must not 

Equal Protection Under the 14th Amendment

Having overturned Roe v. Wade, SCOTUS has empowered states to enact laws criminalizing abortion.  It is now illegal, in some states, to deprive a person, whether born, or unborn. of the right to life, without due process.  Thus, under the equal protection clause of the 14th Amendment, unborn persons in other states, must be granted equal protection.  If abortion is illegal in even one state, it should, as a result, via the equal protection clause, be illegal in all states.

Right to Liberty Under the 14th Amendment

In wrestling with the definition of the nebulous right to "liberty" under the 14th Amendment, SCOTUS ultimately turned to the Bill of Right, creating the "Doctrine of Incorporation" which has applied most of the Bill of Right to the States, via the 14th Amendment.  The logic goes like this, the framers of the 14th Amendment must have had the enumerated liberties found in the Bill of Rights (at least) in mind, when speaking of a right to "liberty".  This means that even if the 14th Amendment  did not contain its own "right to life" the "right to liberty" under the 14th Amendment incorporates the "right to life" found in the 5th Amendment.

 

Blessings of Liberty to our Posterity

Now you may wonder why I brought up the Liberty clause.  After all, while the Liberty clause might get us to the "right to life" guaranteed by the 5th Amendment, the 14th Amendment already has its own "right to life" clause.  Actually there is a very important reason that the "Liberty" clause of the 14th Amendment has special application here.  This is because of what we read in the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

 Notice that the Preamble guarantees the "Blessings of Liberty" secured by the U/S. Constitution, not only to "ourselves" but to "our Posterity" and "out Posterity" are the unborn, by definition.  If the word "liberty" in the 14th Amendment incorporates the enumerated rights of the Bill of Rights (and thus the Right to Life in the 5th Amendment), then so must the word "liberty" in the Preamble, and at the very least, the word "liberty" in the Preamble must incorporate the "liberty" in the 14th Amendment, which in turn incorporates the enumerated rights of the Bill of Rights, and thus the 5th Amendment Right to Life.

And what if one should say that the Preamble should not be regarded as law?  First of all the Supremacy Clause does not exclude the Preamble.  Secondly the Supremacy Clause , none the less, reveals to us the intent of the Framers, and finally, SCOTUS used the Preamble as Law in Texas v. White, 74 U.S. 700  arguing that the phrase "to form a more perfect Union" made the secession of the Confederate states illegal, and while I disagree with this interpretation, it certainly basis its law on the Preamble.

SCOTUS has not done enough simply by overturning Roe v. Wade and returning this issue to the States.  The fact is that the U.S, Constitution clearly prohibits abortion in any State of the Union.