The Corner

Politics & Policy

Fetal Personhood and the Law: Some Emails

A pro-life demonstrator holds up a mock human fetus, as groups chant over one another outside of the U.S. Supreme Court on Capitol Hill in Washington, March 4, 2020. (Tom Brenner/Reuters)

This column of mine elicited an unusual volume of emails. A sample:

Reader MH:

I read your article about fetal personhood with interest. One of the things that I think should give opponents of abortion pause is just how common they are, though many women don’t talk about it. According to Guttmacher, one in four women has an abortion by the time they are 45. I guess I’m skeptical of the ideological frame that one in four women are responsible for ending the life of another person, rather than discontinuing a pregnancy.

If a fetus were re-categorized as a person do you really think this would stop abortion or just drive it underground? Would proponents of fetal personhood also be willing to categorize one in four women as having ended the life of another person?

The estimate that nearly one in four American women will have had an abortion by age 45 is based on the abortion rates of a few years ago; and since those rates have been falling, that fraction has almost certainly also been declining. But yes, that is a lot of women, and men, implicated in abortion. That is not a reason for changing our view of the morality of abortion. Injustices can be extremely prevalent without ceasing to be injustices. So it is here. Fighting that injustice requires a combined legal, political, and cultural effort so that it is both banned and rarely committed — or, to put it in terms of a common pro-life slogan, unborn children are “welcomed in life and protected in law.”

Reader SW:

Why can’t the Supreme Court wave a magic wand, as you put it, to protect unborn babies? It did it for the Left on abortion and for gay marriage. Conservatives have to play the game by the new rules if we are ever going to win.

The point I was making concerned the limits of the Court’s capacity rather than of its authority. The courts can much more easily stop governments from enforcing bans on abortion than they can make them start enforcing them. I am not sure that the ideas presented here for court enforcement of fetal personhood get around that problem, but they recognize that there’s a problem that needs getting around.

An unnamed reader:

I can’t wait to file a lawsuit for my skin cells to be declared persons under the Fourteenth Amendment. They are alive and they’re human too!

Okay. Are they whole organisms, rather than functional parts of a larger organism? Can they, if left untouched by accident, disease, or violence, develop the ability to think and choose for themselves? Is there evidence that the public of 1868 regarded skin cells as deserving legal protection from destruction? Scientists and historians need to hear about these breakthroughs before any lawyers do.

Reader JT:

Conservatives were traditionally very concerned about expansive readings of the 14th [amendment] for fear of giving the federal government too much power. You should think twice before opening this door.

I think the door is pretty open already. But the more important point is that the 14th Amendment increased the power of the federal government by giving it the authority to enforce basic civil rights. We should not try to interpret that basic truth away.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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