In my comment arguing, contrary to some of my colleagues, that the 14th Amendment gives Congress the authority to ban abortions, I was inadvertently unjust to those colleagues, having skipped over one argument that Andrew McCarthy mentioned and endorsed. He notes Professor Jonathan Adler’s argument — made before him by Justice Harry Blackmun in Roe itself — that other references to “persons” in the Constitution do not have prenatal applications. Hence, goes the argument, unborn children are not persons to whom the Constitution guarantees the equal protection of the laws.
I think this is mistaken reasoning. Several constitutional references to “persons” are extremely unlikely to refer to young children, either, but this does not mean they are not persons entitled to the protection of the laws. The main way the law could recognize that unborn children are persons would be to extend to them protections against homicide, as the law increasingly did when the amendment was ratified.
A longer response to Adler ran on NRO.