Bench Memos

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re: Whelan’s Article


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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