It’s time to reclaim the 14th Amendment for unborn persons

February 4, 2019 GMT


The right to life under the Constitution is not debatable but even many in the pro-life movement have accepted that it is.

Abortion takes the life of a person without due process, which is a clear violation of the 14th Amendment.

The 14th Amendment says, in part, ”... 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.”

When pro-lifers say we want Roe v Wade overturned so that each state can decide the fate of their preborn, we deny babies the constitutional protection enshrined in the 14th Amendment.

In the 46 years since the erroneous Roe and Doe decisions, we have largely been making the wrong argument. And now we find ourselves in a situation where pro-abortion forces are comfortable making the case for infanticide. I wonder if things would be different had we been talking about existing constitutional protections, instead of spending all those years arguing that state legislatures should decide who has a right to life and who does not.

We lost the argument about the intrinsic value of innocent human life under the law, simply because we failed to make it.

Michael Farris, president of Alliance Defending Freedom and one of the nation’s leading constitutional lawyers, explains the protection that so many miss: “In 1868 when the 14th Amendment was ratified, abortion was illegal in virtually every state most by statute, several by court decision.

“Why? Because advances in medicine in the early part of the 1800s changed the scientific understanding of life. Previously, life was thought to begin at quickening when the baby was large enough for the mother to feel it move. And before quickening, abortion was often permitted,” Mr. Farris said.

“But new science revealed that life actually begins at conception. Doctors, legislators, and judges moved to the overwhelming consensus that life should be protected from that point,” he said. “When the 14th Amendment declared that no person should be denied life without due process of law, it was agreed that unborn children were included in the category of protected persons. The Constitution has been pro-life since 1868.”

Science and the law both declare that an unborn human is a person. The age of the person does not negate his or her fundamental right to life. The health or physical condition of the person does not negate the fundamental right to life. Nor does intelligence or lack thereof gender, race or anything else.

And state legislatures do not have the constitutional power to negate a preborn person’s fundamental right to life either.

It’s time to reclaim the 14th Amendment, starting by challenging New York’s barbaric law in court. Pro-life heroes fought valiantly against such legislation for 12 years, and children are alive today because of them. But nothing can save babies in New York now except a judicial decision that the law is unconstitutional.

Today we recoil in horror that many Americans believed that states should have the right to treat blacks as property. We even fought a bloody war over it. Eventually, the Congress and states passed and ratified the 13th Amendment abolishing slavery, because the U.S. Supreme Court had so miserably failed to do so.

When Virginia Gov. Ralph Northam recently advocated that even babies born alive can be murdered, it didn’t cause much of a stir in Democratic circles.

But when the governor’s medical school yearbook revealed that he exhibited foolish bigotry against blacks, they were aghast, even though racial bigotry is part of their legacy too. And so goes the arrogant “progressive” ideology: They think they are superior to others. Just as the Democrats once treated black people as something less than human, they now do the same to young people revealing, yet again, the foolish bigotry of “progressive” thought.

In this fight for equality under the law, we already have an amendment that protects the lives of innocent persons. If Roe and Doe are reversed without the high court’s recognition of that protection, states like New York will still be able to kill their preborn up until the moment of birth, and perhaps beyond.

While we continue working to save lives wherever we can, we also must learn the Constitution, become bold advocates for its protections and pray for Supreme Court justices who will not simply reverse Roe and Doe but will rightly apply the 14th Amendment to preborn persons as intended.

⦁ Rebecca Hagelin can be reached at