PROTECTING PRENATAL PERSONS: DOES THE FOURTEENTH AMENDMENT PROHIBIT ABORTION? What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds.1 Assuming that it cannot, and that Roe v. Wade2 and Planned Parenthood of Southeastern Pennsylva- nia v. Casey3 were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy? INTRODUCTION During initial arguments for Roe v. Wade, the state of Texas ar- gued that “the fetus is a ‘person’ within the language and mean- ing of the Fourteenth Amendment.”4 The Supreme Court rejected that conclusion. Nevertheless, it conceded that if prenatal “per- sonhood is established,” the case for a constitutional right to abor- tion “collapses, for the fetus’ right to life would then be guaran- teed specifically by the [Fourteenth] Amendment.”5 Justice Harry Blackmun, writing for the majority, observed that Texas could cite “no case . that holds that a fetus is a person within the meaning of the Fourteenth Amendment.”6 1. See Antonin Scalia, God’s Justice and Ours, 156 L. & JUST. - CHRISTIAN L. REV. 3, 4 (2006) (asserting that it cannot); Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291 (2007) (arguing that it can). 2. 410 U.S. 113 (1973). 3. 505 U.S. 833 (1992). 4. Roe, 410 U.S. at 156. Strangely, the state of Texas later balked from the impli- cations of this position by suggesting that abortion can “be best decided by a [state] legislature.” John D. Gorby, The “Right” to an Abortion, the Scope of Four- teenth Amendment Personhood, and the Supreme Court’s Birth Requirement, 4 S. ILL. U. L.J. 1, 9 (1979) (quoting ORAL ARGUMENTS IN THE SUPREME COURT: ABORTION DECISIONS 59 (1976)). It is possible that, in this respect, the state acted in its own interest rather than in the interest of the fetus. 5. Roe, 410 U.S. at 156–57. 6. Id. at 157. Of course, the counsel’s inability to cite such a case does not pre- clude the existence of such a case or legal principle. Blackmun engages in a falla- 540 Harvard Journal of Law & Public Policy [Vol. 40 Relying on other uses of the word “person” in the Constitution, including the qualifications for congressional representatives and the President, the Court concluded that “the use of the word is such that it has application only post-natally.”7 Thus, there could be no “assurance[] that it has any possible pre-natal application.”8 Relying on the notion that “throughout the major portion of the nineteenth century, prevailing legal abortion practices were far freer than they are today,” the Court con- cluded “that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”9 Even scholars who agree in principle with the outcome of Roe have criticized the Court’s blanket approach to creating a federally protected right to abortion.10 Justice Blackmun’s as- sumption that “the lack of consensus” about when life begins cious argument from ignorance, since absence of evidence is not evidence of ab- sence. Because the Court framed the case in terms of a right to privacy from the outset, it shifted the burden of proof to the state of Texas to prove that preborn human beings are indeed legal persons, whereas the presumption should have been in the state’s favor. See Robert M. Byrn, An American Tragedy: The Supreme Court on Abortion, 41 FORDHAM L. REV. 807, 849 (1973). 7. Roe, 410 U.S. at 157. 8. Id. 9. Id. at 158. The Court assumed its own conclusion that the unborn are not per- sons when it denied review to the Illinois abortion case Doe v. Scott, 321 F. Supp. 1385 (N.D. Ill. 1971), vacated sub nom. Hanrahan v. Doe, 410 U.S. 950 (1973). In that case, a guardian ad litem had been appointed to represent the interests of the fetus in court. The Court never addressed the preborn individual’s standing since it assumed that he or she was not a “person.” See Gorby, supra note 4, at 8–9. The United States District Court for the Northern District of Georgia, in Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga. 1970), judgment modified sub nom. Roe v. Wade, 410 U.S. 113 (1973), similarly denied the appointment of a guardian ad litem in the case that was brought to the Supreme Court, saying that “the court does not postulate the existence of a new being with federal constitutional rights at any time during ges- tation.” 319 F. Supp. at 1055 n.3. These denials of representation rights are reminiscent of the arguments brought forth in Bailey v. Poindexter’s Ex’r, 55 Va. (14 Gratt.) 132 (1858), which determined that a slave could not choose freedom or sale after his master’s death since “in the eye of the law, so far certainly as civil rights and relations are concerned, the slave is not a person, but a thing . The attribution of legal personality to a chattel slave . implies a palpable contradiction in terms.” 55 Va. (14 Gratt.) at 142–43. Recall also Dred Scott v. Sandford, 60 U.S. 393 (1857), which determined that a slave lacked standing to sue because his African descent excluded him from the “politi- cal community created by the Constitution of the United States.” 60 U.S. at 406, superseded by U.S. CONST. amend. XIV (1868). 10. See, e.g., John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 922 (1973). No. 2] Protecting Prenatal Persons 541 means that “abortion must be permitted,” rather than left to state legislatures, has been criticized as “arbitrary” and unwar- ranted. 11 When Roe determined that states could not protect preborn humans as persons, “the Court effectively decided that the Constitution requires their exclusion.”12 Other commentators have contested the central holding of Roe but do not believe the Constitution justifies a blanket policy prohibiting abortion either. Some in this camp have argued that a Human Life Amendment to the Constitution is the best or only way to respond to Roe’s inadequacies.13 Some have advo- cated returning abortion policy to the states. The late Justice Antonin Scalia frequently noted his opposition to Roe and his belief that individual states should determine their abortion policy through democratic processes.14 In either case, if Roe’s critics are correct, constitutional scholars must revisit whether the Fourteenth Amendment protects prenatal life or whether each state may choose to permit abortion. This Note rejects arguments for returning abortion policy to the states—including those offered by Justice Scalia upon originalist grounds 15—before investigating evidence that the 11. Dennis J. Horan & Thomas J. Balch, Roe v. Wade: No Justification in History, Law, or Logic, in ABORTION AND THE CONSTITUTION: REVERSING ROE V. WADE THROUGH THE COURTS 57, 76 (Dennis J. Horan et al. eds., 1987) (surveying criti- cisms of Roe by other legal scholars). 12. Robert A. Destro, Abortion and the Constitution: The Need for a Life-Protective Amendment, 63 CAL. L. REV. 1250, 1278 n.130 (1975) 13. See, e.g., id. at 1339–40. 14. See, e.g., Scalia, supra note 1, at 4. 15. Originalism refers to the “family of related theories” in constitutional inter- pretation that emphasize “four core ideas”: (1) That “the meaning of each provi- sion of the Constitution becomes fixed when that provision is framed and rati- fied;” (2) That “sound interpretation of the Constitution requires the recovery of its original public meaning;” (3) That “original public meaning has the force of law;” and (4) That “constitutional construction” (which ascertains the text’s legal effect) should be distinguished from “constitutional interpretation” (which discerns the linguistic meaning of the text) and supplement interpretation only where the tex- tual provisions are “abstract and vague.” Lawrence B. Solum, We Are All Original- ists Now, in ROBERT W. BENNETT & LAWRENCE B. SOLUM, CONSTITUTIONAL ORIGINALISM: A DEBATE 1, 2–4 (2011) (emphasis in original). Originalist method- ology discovers the original public meaning by looking at a term’s usage, its con- text within the Anglo-American common law tradition, and its historical interpre- tation in cases with precedential value. Justice Scalia associated himself with originalism. See, e.g., Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 (1989). 542 Harvard Journal of Law & Public Policy [Vol. 40 Fourteenth Amendment extends to prenatal human beings. These findings contest the reasoning of Roe and answer Justice Blackmun’s objections to extending Fourteenth Amendment protections to the preborn. Based on the historical evidence, this Note presents an originalist argument that all prenatal life is included within the Fourteenth Amendment’s existing guar- antees of Due Process and Equal Protection. I. JUSTICE SCALIA’S STATES’ RIGHTS VIEW What does the Constitution say about abortion? According to the famed originalist and late Associate Justice Antonin Scalia, “the Constitution says absolutely nothing about it.”16 In Justice Scalia’s judgment, the meaning of the term “person” at the time of the Fourteenth Amendment’s adoption in 1868 did not in- clude prenatal life: There are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human be- ing that’s still in the womb the way you treat other human be- ings.