The Corner

Law & the Courts

Personhood Confusion in the New York Times

(Carlos Barria/Reuters)

The central error in Mary Ziegler’s op-ed comes in its second sentence: “By passing bills that would severely restrict abortion, lawmakers in Alabama and Georgia have in effect asked the Supreme Court not only to overturn Roe v. Wade immediately, but also to recognize the personhood of the fetus.” This is simply untrue, and all the argumentation she builds atop the premise is therefore structurally unsound.

There is no prospect that the Supreme Court is going to rule that human beings in the fetal stage of development are “persons” for the purposes of the Fourteenth Amendment. (My views on the subject of whether they are constitutional persons, and what the answer entails for the justices, are outlined here.) No justice has ever taken the position that they are.

Neither the Alabama nor the Georgia law requires the Supreme Court to declare that a human fetus is a constitutional person for its upholding. A ruling that the Constitution does not protect a right to abortion, and that Roe and its progeny are overruled, would allow them to be upheld even in the absence of such a declaration. Nearly every legislator who backed those laws would be overjoyed by such a ruling.

The words “in effect” do not convert a false statement into a true one.

P.S. Adding to the confusion, at one point the op-ed purports to quote the Alabama law but renders the statutory text’s “abortion advocates” as “abortion opponents.”

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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