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Bench Memos

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re: Whelan’s Article



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Ed, you note that you do not believe that the Fourteenth Amendment protects unborn life. You believe, instead, that the original understanding of that amendment is compatible with either life-protective or killing-permissive legislation. It was not the purpose of your article to explain why you don’t believe that the “pro-life position” is compatible with the original understanding, so you didn’t. I’m not going to try to defend my views on the matter here, but simply register disagreement. I believe that the Fourteenth Amendment does indeed require protection for unborn human beings (although I think it’s the equal-protection clause, not the due-process clause, that is relevant here). I do not believe that the Supreme Court is authorized to require states to protect unborn human life; I believe that Congress is obligated to do it. (Here I think section five is what’s relevant).



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