These law professors ask the Supreme Court to use the 14th Amendment to outlaw abortion

Despite years of Republican attacks, Roe v. Wade is still law. Abortion is still legal in all 50 states. Unfortunately, the challenge we have been bracing ourselves for might finally be at the Supreme Court. On May 17, 2021, the United States Supreme Court agreed to hearJackson Women's Health Organization v. Dobbs. It will be the first consideration of the constitutionality of pre-viability since Roe. (For more, see an earlier piece I wrote on an attempt to get around the issue.) If the court sides with Mississippi, Roe will likely no longer stand as the controlling precedent around abortion in the United States. It could be outlawed after 15 weeks, even six.

There are many conservative arguments against legal abortion, but an amicus brief ("friend of the court" paper) by distinguished law professors John M. Finnis and Robert P. George offers a particularly enraging justification for outlawing abortion. They offer common law and legislative history to argue that the writers of the 14th Amendment, which Roe uses to protect abortion, would have considered "persons" to include "unborn children" and that fetuses are "persons" from the time of conception, not "quickening" or "stirring."

I'm going to get into all the specifics that are wrong with their argument, but possibly the most blatant error is that for this argument to work, the Supreme Court would have to apply contemporary interpretations of the Equal Protection Clause of the 14th Amendment for everything except our understanding of "persons."

I read the entire 42-page brief so you don't have to. It is one long example of cherry-picking evidence devoid of historical context. What's relevant is Section 1 of the 14th Amendment, which is written as follows:

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.

The section is generally broken up into the Citizenship clause (first sentence), the Privileges and Immunities clause (first clause of the second sentence), the Due Process Clause (middle of second sentence) and the Equal Protection Clause (last clause of the section). Abortion is considered protected by the right to privacy, which the Supreme Court has interpreted to be included in the "liberty" aspect of the Due Process Clause.

The argument in Finnis and George's brief is built on an exchange during oral arguments in Roe. Texas lawyers argued at the time that "the fetus is a 'person' within the language and meaning of the 14th Amendment." However, Justice Harry Blackmun responded that, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." Finnis and George are arguing to overturn Roe v. Wade because they disagree with Justice Blackmun's conclusion "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn."

Finnis and George limit their discussion of the definition of "persons" to the Due Process Clause and the Equal Protection Clause. If they discussed the definition of "persons" in the whole section they might run into a pretty big problem: parts of the amendment clearly only apply to "citizens" which are defined as "persons born or naturalized" in the United States (my italics). So it's pretty clear you can't be a citizen, or be granted the privileges and immunities of a citizen, unless you are either born or naturalized in the US. The "unborn" are excluded from that. To be fair to Finnis and George, the Equal Protection Clause has been interpreted to protect all immigrants, including those who are undocumented, considering they are "within its jurisdiction." In Plyler v. Doe, the Supreme Court ruled that undocumented children could not be discriminated against in terms of education in 1982. Due Process rights also theoretically apply to all immigrants, but that often looks very different in practice.

While I found some tweets of Robert George's criticizing the treatment of immigrants during the Trump administration, one wonders how far conservatives would be willing to take this expansive definition of "persons" if it included protections for undocumented immigrants and asylum seekers. Perhaps this brief could support rights for the "unborn" of undocumented immigrants. Maybe pregnant women shouldn't be deported until they've given birth. Or maybe the "unborn" of women who are citizens should already qualify for welfare benefits or CHIP insurance benefits even if the mother is uninsured. Could one open a life insurance policy on the unborn?

Finnis and George spend much of the brief arguing that common law defined "persons" as including unborn fetuses, that common law considered abortion to be a crime and that common law thought life began at conception, not "quickening" or "stirring." Quickening or stirring are historical terms that describe a time during pregnancy when the fetus literally starts to move or "stir" in the womb, commonly around the middle to late second trimester. Before pregnancy tests, sonograms or scientific understandings of "viability," movement in the womb was the clearest way to know life was growing inside a woman. Before quickening, pregnancy was often seen as an "interruption of the menses." The common law sources cited in the brief even use terms like "quickening" and "stirring" but Finnis and George try to brush this off, first by claiming the words could have just been referring to any pregnancy, then by arguing science had advanced to show "a distinct human being begins at conception." Since we still don't have that science today, I would love to know what they're talking about.

Finnis and George ignore that if we are using the original intent of the 14th Amendment, it would really predominantly apply to the civil rights of Black men and correcting the damage done by slavery. The Slaughter-House Cases and Strauder v. West Virginia make this point, as do a number of cases that refuse to include women in the specific "privileges and immunities" protections of the Amendment. Considering women could be deprived of their property, liberty and sometimes citizenship (if they married a citizen of another country, women could lose their American citizenship), it's not clear how much women were included in "personhood" at the time the 14th Amendment was ratified, so you understand that I'm a little wary about applying the original intent of the amendment too stringently.

Many historical scholars disagree with Finnis and George's interpretations of common law. In The Common Law Inside the Female Body, Anita Bernstein argues that common law actually supports abortion, because of the principles of self-defense against trespassing or intrusion—or what is called a negative right. She argues that even if we give fetuses personhood rights, women have personhood rights and therefore have the right to terminate a trespassing pregnancy. A prominent historical scholar, Villanova University law professor Joseph Dellapenna, agrees with Finnis and George about common law outlawing abortion but he argues that such laws were more concerned with penalizing infanticide rather than protecting unborn life. Additionally, Dellapenna doesn't support using his historical legal arguments to outlaw abortion. Carla Spivack, who strongly disagrees with Dellapenna, and therefore Finnis and George, suggests that these interpretations of common law misunderstand the meaning of "abortion" in the historical context. She also points out that early common law criminal cases were often more like tort law in that individuals had to bring their own cases. This is relevant because it means early abortion cases resulted from women bringing cases against men who caused a lost pregnancy through an assault, not as a result of women performing abortions on themselves.

Part of me wants to go through the brief to discredit every individual claim, but I'd also like to keep my blood pressure from skyrocketing. Before I end, it must be noted that every historical citation provided in the brief was written by men. The only men discussed who likely even had any familiarity with the practice of abortion were American doctors in the mid-19th century who likely condemned abortion because they had an agenda to discredit midwives and medicalize obstetrics and gynecology. There's very little evidence that the writers of the 14th Amendment considered fetuses or abortion or pregnancy, or really even women at all, when writing the relevant language. And honestly, even if they did, I think we can all agree that male politicians from 1868 should not be determining the healthcare choices of pregnant people today.

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.