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.
Michele Bachmann, Herman Cain, and Newt Gingrich said they would support such legislation. Ron Paul said that crime should be a state-level issue. He said that he would support a bill that would deprive lower federal courts of jurisdiction over abortion cases, so that state restrictions on abortion would be immune from judicial review. Mitt Romney said that he feared such legislation would provoke a constitutional crisis. Instead, he would focus on appointing judges who would return abortion regulation to the states.
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.
Most political professionals reflexively recoil from protracted conflict between any of the branches of government — even though such conflict used to be a fairly common part of the American political scene. A considerable amount of work would have to be done to build a broad consensus among pro-lifer group and pro-life elected officials to pursue such an approach. However, Professor George deserves some credit for generating some much needed thoughtful discourse about alternative strategies for restoring legal protection to the unborn.
— 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.
Since the primary purposes of the federal government are, among other things. to "establish justice" and to "secure the blessings of liberty to ourselves and our posterity," then it would appear altogether appropriate for Congress to end the nightmare of abortion by recognizing the unborn child and protecting the child through the 14th Amendment.
To those who wrongly claim that Congress has not the authority, they must answer to where the Court gained the authority to deny a class of human beings the protection of the law that they enjoyed since the founding of the nation.
I remember reading case law which identified the unborn child as having the right to inheritance, the right to support, and the right to legal representation in a court of law. I asked the question - how can American jurisprudence recognize the rights of the unborn to property, support and protection and still deny the child the right to life. The tired old argument about the woman having a right to choose was easily rebuffed by those of us with a lick of common sense. Yet, almost 40 years later, after 50 million dead babies, we find the same timidity and fear. What is it about protecting the innocent that is not obvious to anyone who respects the dignity of the human person?
I remember 1981 and the wasted opportunity. We need to pass this statute and tell the Supreme Court, the government does not have the right to take an innocent human life. After all even the accused have a right to due process in our criminal courts.
Reply to this commentLinkReport Abusewell stated
Reply to this commentLinkReport AbuseI count two members of Congress and a former member of Congress saying they would propose legislation if they were elected President. Have any of them proposed any such legislation (or anything similar) as members of Congress?
Reply to this commentLinkReport AbuseYou're right, Mr. New. The most important thing is to elect a pro-life president who will appoint anti-Roe (they don't even have to be all that personally pro-life themselves, when push comes to shove) justices. President Reagan made two huge mistakes w Kennedy and O'Connor, Bush the first made one with Souter, and it appears Bush the second got both appointments right. So the trend is in the right direction. The main and by far most important goal now is to vote President Obama OUT next year.
Reply to this commentLinkReport AbusePaul's answer is excellent. In fact it should be extended. Congress could justify its existence for the first time in 220 years by passing the following law:
"Federal courts have no jurisdiction. Federal courts shall not handle any civil or criminal case. Federal courts shall do nothing at all. Any criminal case that would have been handled by a federal court shall be handled by the appropriate state or county court; any civil case that would have been handled by a federal court shall be permanently dismissed."
This would save the country.
Reply to this commentLinkReport AbuseThe 14th Amendment applies to all persons "born" in the United States. By definition the unborn don't apply.
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While I agree that the 14th Amendment shouldn't be the path for pro-lifers such as myself to protect the unborn (maybe I'm still too much of a stickler for intent vs meaning), you're putting too fine a point on it. The reference to those "born" only defines who is a citizen. According to this, fetuses aren't US citizens (or of the states of where they reside). Technically, I suppose they still could be but that the 14th doesn't require them to be.
At any rate, the second sentence broadens the protection afforded by the 14th to all persons, NOT simply citizens. Just like the state can't take away a legal resident's property, one could say the state must protect an unborn person's life.
Reply to this commentLinkReport AbuseFrom 2003 to 2006, the "pro-life" GOP had the House, Senate, and a GOP President...and didn't even hold a Committee vote (much less a full floor vote) on the Human Life Amendment.
Yet every 4 years the Republicans promise "next time, we'll get it passed." I wonder when the anti-abortion advocates will actually wake up and realize they're being conned...and have been for 30+ years?
Reply to this commentLinkReport AbuseThere is no con. There aren't the votes for a human life amendment. See my comment above. It's all in the appointment of justices. And after the big Souter mistake, it appears Republican presidents got the next three in a row right.
Reply to this commentLinkReport AbuseI agree with Ron Paul on this one. From a purely legal point of view, abortion should and must be handled at the state level. The 14th Amendment wasn't written to address abortion. If Pro-Life people want to nationalize the issue, they can amdend the Constitution. Otherwise,they would be just as guilty of judicial activism as Progressives.
Reply to this commentLinkReport AbuseIt was written to address "life". Their is certainly an argument to made that abortion ends a life without due process. Abortion is "The Death Penalty".
Reply to this commentLinkReport AbuseI thought we saw Romney again running to the left, with the "there's nothing I can do" answer. The "time for debate is over", the Supreme Court has spoken. I don't buy ti.
Reply to this commentLinkReport AbuseWhat is needed is a constitutional amendment to restore the authority to regulate or prohibit abortion to the states. There's not enough support for a uniform, Federal prohibition. After forty years of failure, it is time for a new strategy.
Reply to this commentLinkReport AbuseThat's a good idea. I support it. But here's my approach:
1. A huge tax on all hospitals and clinics. (This is constitutional.)
2. A subsidy to all hospitals and clinics, roughly equal in size to the tax, but excluding hospitals and clinics that perform abortions. (It is permissible to exempt abortion providers from federal funding.)
Taken together, the net-net would be a crushing tax on abortion providers, putting them out of business.
Reply to this commentLinkReport AbuseI have always wondered why we aren't taxing abortion or putting waiting periods on it.
We tax things we don't "like" (sin taxes) and subsidize things we do "like" (mortgage interest deduction, non-profit = no taxes). So, we must "like" abortion because we give tax benefits to the nation's largest provider.
The right to keep and bear arms is pretty clear. It "shall not be infringed". Yet, in some areas I have a waiting period to attain a weapon (I guess a temporary infringement is ok). The logic behind the waiting period is a "cooling off' period, just in case I'm upset with someone. In other words, we have waiting periods because someone Might die. In an abortion, someone ALWAYS dies. So, why would it be any different? How about a weeklong waiting period (I suggest that because I don't thing anyone will buy a 9-month one!)? How would anyone rights be infringed? Granted, I am using the left's definition of a right, there is no right to an abortion.
One more thing. Now that we are actively paying for abortions because it is a "right", where do I go to get my free gun?
Reply to this commentLinkReport AbuseABORTION IS A CIVIL AND CONSTITUTIONAL RIGHT SUPPORTED BY THE RIGHTS TO PRIVACY, THE EQUAL PROTECTION CLAUSE OF 14TH AMENDMENT, AND THE 13TH AMENDMENT.
no human has a right to life or any due process rights by the 14th amendment to use another human's body or body parts AGAINST their will, civil and constitutional rights....is this supported by the equal protection clause of the 14th amendment.
that's why you are not force to donate your kidney---the human fetus is no exception
THE HUMAN FETUS HAS NO LEGAL RIGHT TO LIFE
consensual sex =/= a legal, binding contract for an unwanted fetus to live....deal with it.
a fetus is not a baby.
fyi, the judeo-christian god is a myth.
Reply to this commentLinkReport Abuse3.3.3 Atheism: A History of God (Part 1)
Evid3nc3
So by your logic a fetus is a human, but has no right to life because the fetus has no Constitutional right to compel the woman to carry it to term? OK. Then by what Constitutional right does the woman get to deprive the human within her of life for no reason other than it conveniences her to do so?
And for the record, your imaginative rendering of the 14th Amendment has no particular relationship to what it actually says.
Reply to this commentLinkReport Abuseyou just answered your own question, the fetus is not a legal person with a right to life under the 14th amendment, so the woman doesn't have to keep the pregnancy---if she no longer desires.
and btw, my legal claim is supported the equal protection clause of the 14th amendment.
no human has a right to life or any due process rights by the 14th amendment to use another human's body or body parts AGAINST their will, civil and constitutional rights.
that's why you are not force to donate your kidney---the human fetus is no exception
consensual sex =/= a legal, binding contract for an unwanted fetus to live.
Reply to this commentLinkReport AbuseOK, if you give an embryo/fetus the status of "personhood" for purposes of the constitution:
(i) would a woman/her physician have to report a miscarriage to law enforcement authorities?
(ii) would law enforcement have to investigate a woman who miscarried, to be sure she didn't engage in any "reckless" behavior that contributed to the miscarriage?
(iii) would the state have to issue a death certificate even though there was no birth?
(iv) could law enforcement prevent a woman from leaving the jurisidiction to terminate a pregnancy? If a woman expressed the desire not to carry the pregnancy to term, could she be taken into custody to assure it does go to term?
Reply to this commentLinkReport Abuse(i) determined by local statute
(ii) determined by local statute
(iii) determined by local statute
(iv-a) Yes.
(iv-b) Only under circumstances where the mother has expressed a reasonably clear intent to kill her child. Mothers say things like "Sometimes I wish I didn't have kids" all the time, but social services doesn't come take the kids away without material cause.
Just my understanding of the law.
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