Everyone knows that questions about abortion are pretty standard fare in presidential debates and forums. Usually, members of the mainstream media inquire about the personal views of the candidates and the positions of prospective running mates, executive-branch appointees, and judicial selections. However, on Monday, the five presidential candidates at the Palmetto Freedom Forum were treated to something different.
During the forum, Princeton professor Robert P. George asked all five candidates whether they would support legislation, under Section Five of the 14th Amendment, that would restore legal protection for unborn children. The 14th Amendment guarantees that no state shall “deprive any person of life, liberty, or property, without due process of law.” The fifth section gives Congress the power to enforce, “by appropriate legislation, the provisions of this article.” The strategy Professor George is proposing would be for Congress to legislate that unborn children are persons under the 14th Amendment.
The approach that Professor George outlined has been extensively debated in conservative and academic legal circles. In fact, in the early 1980s, Sen. Jesse Helms (R., N.C.) proposed legislation very similar to what Professor George described. Some favored this approach because they thought it would be easier to pass a bill than amend the Constitution. Unfortunately, the pro-life movement was too divided between this bill and competing Human Life Amendments for this effort to make any real headway.
Since that time, however, most Beltway pro-life groups have approached a rough consensus about how to proceed. At the federal level, they push for defunding abortion, incremental laws that can help shape public opinion, and Supreme Court justices who will be likely to overturn Roe v. Wade. At the state level, the goal is to push for progressively stronger incremental laws, hoping that one of these laws will pose a strong legal challenge to the Supreme Court’s ruling in Casey v. Planned Parenthood.
— Michael J. New is an assistant professor of political science at the University of Michigan–Dearborn and a fellow at the Witherspoon Institute in Princeton, N.J.