Harvard Law Journal: Unborn Babies are Constitutional Persons

By The Stream Published on May 25, 2017

“Harvard law journal: unborn babies are constitutional persons.” So reads the surprising headline on the press release from the student-run Harvard Journal of Law and Public Policy. In a provocative article, law student Joshua Craddock fires a challenge not only at pro-choice orthodoxy but at mainstream pro-life thinking. He declares both “constitutionally unsound.”

Edited by Harvard Law School students, the journal describes itself as “the nation’s leading forum for conservative and libertarian legal scholarship.” New Supreme Court justice Neil Gorsuch’s article on assisted suicide first appeared there. Ted Cruz was an executive editor.

Before he went to law school, Craddock worked for Personhood USA, a United Nations NGO. A recent graduate of King’s College in New York City, he has written for The Stream.

The Article’s Challenge

Craddock’s article challenges the Supreme Court’s pro-choice decisions. The majority of the Court since 1973’s Roe v. Wade refuses to decide whether an unborn child is a human being with human rights. The court basically says, “Who knows? So we’ll say no.”

The justices think other matters are more important than the answer. One of them is the belief found in the majority decision in Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” A definition of personhood “formed under compulsion of the State” would keep people from exercising this liberty. So the justices believe.

The article also challenges the broad agreement among pro-life legal scholars that the Constitution doesn’t say anything on the issue. Most speak as “originalists,” people who try to find what the Constitution meant to those who wrote and approved it.

Most conservative legal scholars claim that the Constitution doesn’t deal with the nature of the unborn at all. Conservative judicial hero Antonin Scalia declared that the Constitution says “absolutely nothing” about abortion. It assumes only “walking-around persons” are real human beings, he once said.

These scholars would leave the decision to the political process. That means the state governments. This allows what Scalia called “regional differences.” In their idea of the Constitution, an unborn child might be protected in one state and killed at any moment until birth in the next one. Craddock calls this “the states’ rights view.”

They’re Both Wrong

Craddock thinks they’re both wrong. Pro-choicers and pro-lifers both misinterpret the Constitution. The “original” meaning includes the unborn child’s right to life.

He focuses on the Fourteenth Amendment, passed in 1868. No state, it declares, shall “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.”

Whatever the original Constitution may have to say on abortion, Craddock argues that amendment includes the unborn among the “persons” whose rights it protects. They can’t be deprived of “life, liberty, or property, without due process of law.” They, just as much as born persons, have the Constitution right to “the equal protection of the laws.”

Craddock provides three arguments: What the word person meant then, the anti-abortion laws of the time, and what the people who wrote the amendment said about it, all show that the amendment includes the unborn.

Take the state anti-abortion laws in place before the Fourteenth Amendment was adopted. Almost every state had laws against abortion, he notes. Most of these laws were part of the law covering “offenses against the person.” In addition, 23 of the 37 states explicitly called the unborn child a “child” in their laws. Six of the 11 territories did so as well.

Craddock offers other evidence. In 1859, the American Medical Association demanded the government protect the “independent and actual existence of the child before birth.” Eight years later, the Medical Society of New York called abortion at any stage of the child’s life “murder.”

This and much other evidence shows that “a general consensus treated preborn human beings as ‘persons.’ … [T]he preborn were included within the public meaning of the term ‘person’ at the time the Fourteenth Amendment was adopted.” Therefore the amendment itself considers the unborn to be persons with the right to life.

A New Birth of Freedom

States that allow abortions violate the Constitution, Craddock declares in his conclusion. “Congress or the courts must intervene.” For example, if a state allows the unborn to be killed but prosecutes the murderers of other groups of people, it denies the unborn the equal protection of the laws. A higher authority must act to protect the lives of the unborn.

If Craddock is right, the Supreme Court may finally base its rulings on what the Constitution assumes about the unborn. “The Fourteenth Amendment,” Craddock concludes, “was to be a new birth of freedom for all human beings.”

 

The Stream will be publishing an “In Depth” story giving the argument in more detail.

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  • LgVt

    For what little it’s worth (and given how bad the reasoning is, I do mean little) the Supreme Court did consider the question of personhood in Roe v. Wade. They ruled that because no other use of “person” in the Constitution had a prenatal application, it was not possible for there to be a prenatal application at all–and therefore the unborn were not persons, and were not protected under the Fourteenth Amendment.

    It’s a disastrously flawed argument, but for better or worse, that is the current legal precedent.

    • Tim Thomas

      This is directly addressed not only in this article but also extensively in the paper itself.

    • cadcoke5

      Even if one believes that the Constitution were vague on the subject of persons, that would not deny the legislature the right to make it clear.

  • Autrey Windle

    Can’t wait to read the ‘in depth’ piece. Thank you, Stream.

  • davidrev17

    Thank you Lord! I’m looking forward to this in-depth research too, as there’s truly a great team assembled @ The Stream with profound scholarly insight. And since this particular angle (if you will) on both the 5th &14th Amendments re: the issue of abortion is certainly not new, perhaps the collective wisdom in this area has broadened and deepened of late?

    (I’m actually hoping this country’s legally incoherent view of Homo sapiens’ “philosophical anthropology” – seen most vividly when comparing our existing constitutionalized abortion laws, with those in our Criminal statutes, called “Fetal Homicide Laws” – just might be considered a relevant issue in this recent examination?)

    In the meantime, if anyone is interested, there’s a very enlightening (Jan., 2003) “exchange” on this very issue @ First Things, “Constitutional Persons: An Exchange on Abortion,” by Nathan Schlueter & the late brilliant jurist, Robert H. Bork.

  • Pyrolon

    I find the 1859 precedent cited “independent and actual existence of the child before birth” interesting, because a fetus is not independent.
    I’m not sure why a student newspaper with an article written by someone in the pro-life lobby is expected to have any legal heft. It isn’t even argued very well.

    • “A fetus is not independent”? In the sense of having a distinct body, would would have been the focus of the 1859 American Medical Association report, OF COURSE unborn babies are “independent”. In any other sense, what human is “independent”? In the sense of being financially independent, is a law professor sustained by government-backed student loans “independent”? Millionaire business tycoons are “dependent” on customers. Parents generally become “dependent” on the generation of their children to care for them in their twilight years. Presidents are “dependent” on populations – as an early Reformation writer, I forget who, said, “Populations can exist without a king. A king without a population is unimaginable.” God made us all dependent on one another.

      I’ve just read Craddock’s article which you dismiss as not “even argued very well”. Is the American Medical Association’s opinion of the medical independence of a child before birth the only example you can find of something not argued well? If you know of another example, please share it. I am unable to find it on my own.

      I marvel that you can profess to be unimpressed that a prolife article makes it into a “student newspaper”, when that mere “student newspaper” is the law journal of Harvard. “Legal heft”? No, it’s not yet from the brief of a case accepted by SCOTUS, but do you seriously imagine it will not be read by prolife lawyers preparing briefs headed for SCOTUS?

      • (? I received an email saying “pyrolon” had responded to me, but the link in the email alleging my opportunity to respond doesn’t reach his comment. So I post it here, and respond to it here:)

        A fetus is utterly dependent upon the mother, if mommy smokes, fetus smokes, if mommy gets drunk fetus gets drunk, etc. If the fetus is rendered independent as in an abortion (spontaneous or induced) it dies.

        The article is a hodgepodge of biased and spurious arguments. Since you want examples here are a couple. Through a convoluted labyrinth of arguments Craddock makes a (poor) case that “born” in the 14th amendment doesn’t really mean that. From my scientific (rather than legal) perspective on the case I found foot note 41 interesting (“The union of two such sex cells to form a zygote constitutes the process of fertilization and initiates the life of a new individual.”) This certainly would have some interesting legal ramifications if this biological definition is used. Identical twins, now the same legal person? When human clones become medically possible they wouldn’t be their own legal person?

        At least in my stream this article appeared to appeal to the authority of the prestige of coming out of a Harvard law journal which implied to me that it was in fact on par with other research journals that are done at the professor level, not a vanity piece by students. Notice the article puffs out its feathers by name dropping Gorsuch and Ted Cruz (both who contributed as STUDENTS) to give itself some heft. While not outright deception it is at least disingenuous.

        Would it be used for the inevitable SCOTUS showdown? I doubt it. The thesis of the article that abortion should have a blanket ban at the federal level, rather than leaving it to the states will NOT be the tactic that is used.

        9:35 a.m., Monday June 5

        My response: Thanks for the discussion! Everyone will surely agree a preborn child is MORE dependent on its mother than any post-birth person. But surely you will agree that the difference is relative? The examples you give, of the preborn baby experiencing smoking if the mother smokes, is even more true of a born baby where smoke directly gets in the lungs just as in the lungs of the mother; while the preborn baby getting drunk if the mother does, is less true of a born baby; and then only if the baby is still breast feeding. As for becoming “independent” in your sense of an abortion, it isn’t the independence that kills but the abortion – depending on the age of the baby and the state of medical technology.

        All this, to dispute an AMA report from 1859 describing the unborn as “independent”, which I take to mean medically “distinct”, a definition you seem to reject, which seems to be the pillar of our disagreement. Webster’s 1828 dictionary, which was still the only dictionary in 1859 I believe, defines “independent”: “7. Separate from; exclusive….1. Not dependent; not subject to the control of others; not subordinate. God is the only being who is perfectly independent.”

        RE “Born” in the 14th Amendment: “all persons born or naturalized” – you mean Craddock’s argument that the qualifier “born” to the word “persons” implies the existence of “persons” who are not born? I made the same argument in my own writing about the Amendment; I will need help to understand what’s “convoluted” about it. Craddock didn’t even submit it as evidence, but only as a possible clue to the Founder’s intent.

        RE: the failure of fertilization as a definition of “when [constitutionally protected] life begins” to resolve future legal questions that may become relevant with clones and embryonic identical twins is not an argument against its utility now. As Craddock’s history reminds us, adjustments in law are possible as facts become clearer, and as the practical demands of prosecution are considered.

        RE: “vanity piece by students”. That’s a pretty bitter characterization, of course. As surely you intend. Since you cite no objective indicators of Craddock’s vanity, and I can’t think of any, I presume you mean the mere effort to seek publication in a prestigious journal is motivated by vanity. By no more conclusive logic than that, of course, anyone seeking a voice anywhere must be motivated by vanity, including you and I, in this comment section which no one may ever read, although that proves a lot less vanity than getting published in Harvard. Of how much more vanity must published Harvard law professors be guilty!

        1 Corinthians 4:5 warns us not to judge each other’s motives too confidently; God will reveal all our motives to each other when He thinks we’re ready. The thing we are better equipped to judge is the merits of each other’s reasoning.

        • Giovanni

          Regarding identical twins and human clones: all you have to do to accommodate this is acknowledge that the fertilization of an egg by a sperm is *one* way that a new human life can begin. But a fertilized egg is biologically a distinct member of the human species, and so are identical twins (beginning when the zygote splits) and clones are distinct members of the human species. So I don’t see the problem.

          The fact that there are two persons where before there was one isn’t a problem either. It doesn’t prove that the original fertilized egg wasn’t a person. You might ask, which twin was the original? I can’t really answer this question (my best guess is neither), but it doesn’t mean the original wasn’t a person. To illustrate that point: If an amoeba reproduces by binary fission (which just means splitting into two new amoebas), just because there are now two amoebas where before there was one doesn’t mean the original wasn’t an amoeba. I might ask, which amoeba was the original? I can’t answer this question (although my best guess is neither), but that doesn’t mean that our definition of amoeba breaks down.

  • Adriann

    Did this guy completely forget about bodily integrity? You know, that part of the US constitution that prevents blood and organ donation from being mandatory? The only reason rape is illegal? Part of the reason abortion was legalized in the first place was bodily integrity and the realization that not even a fetus’ right to life overrules the pregnant person’s right to bodily integrity. Abortion is not murder, it’s self defense.

    • Giovanni

      I’d be very surprised if bodily integrity (or bodily autonomy) were the only reason rape is illegal. But perhaps it’s one of many good reasons.

      Speaking of rape, I don’t think the bodily autonomy (integrity?) argument on the legal status of abortion makes much sense outside of cases of pregnancy due to rape. If you consent to have sex, then you have agreed to an act which can make you to be a mother or a father. (I should hope people know this when they consent!) If abortion were illegal except in cases of rape, then bodily autonomy would only be given up voluntarily (or rather with voluntary chance). It would not make pregnancy mandatory anymore than blood and organ donation are mandatory.

      One question about the bodily autonomy (integrity?) argument. Tell me if I understand you correctly: you mean that abortion should be legal *even if* a fetus is a human being with all the same rights as you and me?

      “Abortion is… self defense.” I’m not sure I see what precisely is equivalent about abortion and killing in self defense. When I think of killing in self defense, I imagine killing a foe with known intent to do some kind of harm (usually to the defending person or their loved ones, but perhaps this is not always the case). Perhaps someone could kill a person trying to rape them, for example. In the case of abortion, a pregnancy may or may not do any harm, and there is no ill will involved. Is is simply the fact that harm *could* be done? Because that would justify killing people in many more circumstances. What am I missing? Also, last I knew, most people choose to have abortions for things like financial reasons, convenience, etc., rather than for reasons like preventing harm or avoiding danger. I’m sure there are plenty of exceptions, but if I understand the argument correctly (abortion is justified because it is self defense), then it seems to me that the argument should be that only a relatively small number of abortions should be justified.

      From what I’m familiar with, the bodily autonomy argument was a lot more broad than self defense (for example, you mention organ donation, which in most scenarios would have nothing to do with self defense), so I think I may have misunderstood what you mean by self defense.

      • Adriann

        Consent cannot be transferred, so consent to sex does not equal consent to pregnancy. If abortion is illegal in all cases except for rape and medical emergency, people would be forced to choose between caring an unwanted pregnancy or risk dying to get an alleyway abortions. Fetuses do have all the same rights as human beings. They don’t have the right to violate someone else’s right to bodily autonomy. Not even the right to life gives them the right to violate bodily autonomy.

        • Giovanni

          “Consent cannot be transferred, so consent to sex does not [imply] consent to pregnancy.” Hmm… Consent to a particular thing always requires awareness of and consent to the consequences and risks. For example, if I get surgery, the doctor is required by law to inform me of the risks, such as paralysis. Obviously, this is not the same as giving consent to be paralyzed, and in that sense, consent isn’t “transferred.” I will concede that. But it does imply that I’m willing to take the chance that I get paralyzed and have to live with it (and not sue if the paralysis is through no fault of the doctor). (That is, that I might have to live without bodily autonomy–quite literally as autonomy means self rule and paralysis means inability to control your body.) So if abortion were illegal (for the sake of this discussion we’ll make the exception for rape and danger to the mother), then consent to sex would likewise require awareness of the possibility of losing some bodily autonomy for a while and having to live with it (pregnancy). It may not mean “consenting to pregnancy” any more than consent to surgery means “consent to paralysis” of course, but would similarly mean accepting the possibility of having to live with the possible consequences should they occur.

          You could take it from a different angle and make analogy to how some webpages have notices or banners saying something like, “By continuing to use this page, you agree to our privacy policy, terms and conditions, the use of cookies for blah blah blah…” Similarly, “By having sex you agree to…” I like the angle I take in the paragraph before this one perhaps a little better, but perhaps it’s easier to understand this one. (But this one isn’t exactly a rigorous argument, and it isn’t intended to be.)

          “If abortion is illegal in all cases except for rape and medical emergency, people would be forced to choose between [carrying] an unwanted pregnancy or risk dying to get an alleyway abortions.” I apologize if I’m missing something, but I fail to see how this adds to the discussion. If you’re right about consent and everything, then abortion should be legal because it’s okay to do it to preserve bodily autonomy, and people being forced to choose between carrying an unwanted pregnancy or getting a dangerous and illegal abortion is a moot point. Whereas if I’m right about consent, then sometimes people have to accept the possibility of carrying an unwanted pregnancy.

          Thank you for clarifying your position. (To anyone actually bothering to read this discussion, note that the position is that a fetus is a human being, and it’s okay to kill it in abortion anyway because of the principle of bodily autonomy: “Fetuses do have all the same rights as human beings…. Not even the right to life gives them the right to violate bodily autonomy.”)

    • dancingontheheadofapin

      Please explain “bodily Integrity.”

      • Adriann

        “The right to physical autonomy and self-determination.” Wow, Google is so hard to use. I understand why you asked me instead of googling it.

  • Daniel

    Well written! Let’s put an end to this mass murder!

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