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Abortion and the 14th Amendment



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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.



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