Is a Federal Ban on Abortion After 15 Weeks Gestation Even Constitutional?

Oct 6, 2023 by David Fowler

Is a Federal Ban on Abortion After 15 Weeks Gestation Even Constitutional?
Controversy over a federal ban on abortion after 15 weeks of gestation proposed by a national pro-life political action committee prompted Ronna McDaniel, chair of the Republican National Committee, to tell Republican candidates to “talk about abortion. . . . When you don’t respond, the lies become the truth.” Okay, what about this truth? The constitutional argument for it is the same as that of Planned Parenthood and the A.C.L.U. In fact, if we are going to uphold the Fourteenth Amendment, the 15-week federal abortion ban is unconstitutional. Here is why.

The key to understanding the constitutionality of an act by Congress to prohibit abortions nationwide after 15 weeks of gestation is the Fourteenth Amendment. Relative to the proposed ban, it has three key provisions (actually, four, but I’ll lay aside its Privileges and Immunities Clause):
  1. No state shall enact any law that deprives “any person” of life, liberty, or property without affording them due process of law. Essentially, every “person” is entitled to notice that he or she has violated a law and has a right to be heard before being deprived of his or her life, liberty, or property.
  2. No state shall enact any law that deprives “any person” equal protection of the laws.
  3. The power to “enforce” these rights was given to Congress alone; it can enact laws that make unlawful any state law that allows the life of “any person” to be taken without due process of law or protects the lives of some persons but not those of others.
I hope you are getting the point that the meaning of the word “person” determines what Points 1 and 2 protect and what laws the Constitution prohibits states from having. It also defines the subject on whose behalf Congress has power to act. No person involved, no power.
But that’s not all. Article VI of the U.S. Constitution says the Fourteenth Amendment is the “supreme law of the land.” Therefore, any state law that violates Points 1 and 2 above is unconstitutional. Period.
What You Next Must Know—Key Point No. 4.
The foregoing leads to key Point No. 4. A federal court has no power to repeal or remove an offending state law from a state’s statute books. The reason? The federal judicial branch has no power to make any law, but particularly not a state law.
So, if, for instance, a state law says it is only a crime to intentionally kill a person 18 years of age or older, denying equal protection of the law to those under the age of 18, a federal court cannot “amend” the law by changing its age limitation. It also can’t order a state district attorney to prosecute the killer of a 17-year-old. Courts only have the power to issue a judgment—to decide who wins or loses in a lawsuit.
The fourth point is why Point No. 3 is so important: Congress is constitutionally empowered to do what a federal court is constitutionally prohibited from doing; namely, Congress has legislative law-enacting powers—courts don’t—to prohibit or make void a state law that violates Points 1 or 2.
And if Congress does not act, does not exercise its power under Point No. 3, then those who murder a 17-year-old in that state can literally get away with murder!
How This Applies to Abortion
Point No. 3 means that the power of Congress to enact a law that prohibits a state from having a law that allows abortion after 15 weeks can only be found in the Fourteenth Amendment, in Point 3 above.
But Congress can only do that if the state law deprives a “person” of life without due process of law or prohibits the killing of only some persons and not others (equal protection).
In other words, Congress has no power under the Fourteenth Amendment to make unlawful state laws for euthanizing animals or prohibiting a local group of farmers from having a cock fight. No “person” is involved in those killings.
Thus, the meaning of the word “person” is fundamental to whether Congress has the power to enact any law about abortion, before or after 15 weeks. Again, no person, no power.
The Planned Parenthood-A.C.L.U. Argument Pro-lifers are Adopting
The abortion community has argued for years that the unborn may be human beings; it’s hard to argue they are not, but they argue that unborn human beings are not “persons” within the legal meaning of that word in the Constitution. Even the Supreme Court in Roe acknowledged that the constitutionality of abortion is predicated on there being a constitutionally valid distinction between being human and being a “person.”
So, my beef with pro-life organizations in support of this ban and every Republican presidential candidate—all either support it or say it’s a states’ rights issue—is that every one of them is at least tacitly accepting this distinction between human beings and persons. 
If the unborn are “persons” within the constitutional meaning of that term, then the pro-life community should be clear: state abortion laws violate the Due Process and Equal Protection Clauses. Period.
So, those who support the 15-week position as constitutional are essentially acquiescing to the proposition that there is a constitutional difference between a human being and what constitutes a legal and constitutional “person.” This is the position of Planned Parenthood and the ACLU, for gosh sakes!
“You’re wrong, David. This is incrementalism”
To such a statement I say, baloney. We are construing a word in a legal document that must have a legal meaning. If the word “person” in the Fourteenth Amendment does not equal “human being,” then the Fourteenth Amendment may not apply to the unborn.
But, if pro-lifers concede that the legal meaning of the word person can depend on how Congress votes, they have de facto conceded that the word has no objective and ascertainable legal meaning. Therefore, its meaning is changeable by votes taken over time—one time it constitutionally means X, the next time it constitutionally means Y.
That is a “living Constitution”! For gosh sakes, that, too, is the position of Planned Parenthood and the A.C.L.U.!
"I’m Not Conceding Anything to the Pro-abortion Crowd,” Fowler
Of course, Republicans and pro-life advocates could later say they didn’t mean for anyone to think they believed there was a difference between a human being and a “person” under the Fourteenth Amendment. But at some point,[1] they will finally have to admit that a human being is a “person.” They will have to admit they were just being “incremental” with the meaning of legal words in the Constitution. They will have to admit, as some are saying they will do, that all along they intended to abide by what they knew the term “any person” in the Constitution meant.
To me that says pragmatic politics is the name of the game—how many votes can I count for this or that position—and that will determine how I define the word “person.” To my mind they are playing a game with the meaning and supposed value of having a written Constitution. That’s what liberals do.
Also, in my view, they are playing politics with the lives of the large number of babies who will die while they are busy second-guessing what God might do if they make an anthropologically and constitutionally principled argument for the word “person.” Is it not possible that God might intervene in ways they can’t foresee, maybe even sooner rather than later, to protect all persons’ lives if they begin to make that kind of argument now? More on this point in the last section.
Why This Isn’t a States’ Rights Issue
Point Nos. 1-4 also explain why abortion can’t be a states’ rights issue. Remember, the meaning of the word “person” is the supreme law.
If the word “person” includes the unborn, then, when the Fourteenth Amendment says, “no state shall,” it takes away any authority in the states to allow the killing of an unborn person without due process or without equal protection of the law against murder.
The whole purpose of the Fourteenth Amendment was to take some issues away from the states.
What I Want a Presidential Candidate to Tell Me
I’m looking for a candidate who will say something constitutionally and anthropologically sound such as:
Mr. Fowler, there are not enough votes in Congress at this time to pass a law to enforce the Fourteenth Amendment and until then the Supremacy Clause will be largely ineffectual. It will be largely ineffectual because none of the presidential contenders other than me and none of our federal or state judges are willing to give the word “person” in the Fourteenth Amendment a legal meaning.
I can appreciate that kind of candor and courage.
Conclusion: Why This Kind of Statement is so Important
Such a statement changes the debate from whether abortion is simply access to a “medical procedure” or when during gestation it becomes too inhumane to kill a human being to what the Constitution requires.
It allows us to ask people whether all human beings are persons and, if not, whether they think they personally existed in some transitional non-human state of being in the womb.
It allows us to ask people to explain the difference between being human and being a person.
I don’t think pro-abortionists want to talk about those things, and they are being let off the hook.
To my mind, they can only say the point of demarcation is viability. But last summer the Dobbs decision made it clear that killing an unborn child was a crime when the Fourteenth Amendment was adopted. The Fourteenth Amendment was not drafted to protect what was then a crime against a person, unless you, like liberals, believe in a “living Constitution.”
What I am suggesting is a debate I think is worth having, but please, Mrs. McDaniel and Republican presidential candidates, do not think me so uninformed as to think you are solidly pro-life when you are acquiescing to the legal, constitutional, and anthropological interpretation of the word “person” in the Fourteenth Amendment advanced by Planned Parenthood and the A.C.L.U.
[1] That point might be after the U.S. Supreme Court rules on the constitutionality of the post-15-week ban. If the Court holds that the word “person” includes the unborn, as was true of the word at the time the Fourteenth Amendment was ratified, then, to ban state abortion laws consistent with the common law, Congress will have to exercise it powers under Point No. 3. So, the argument I offer will still have to be made. Moreover, the federal post-15-week ban may have been held unconstitutional for the reasons I’ve explained or because the Fifth Amendment prohibits the federal government from enacting laws that deny “any person due process of law,” which the federal law would do.  So the pro-life community could wind up with nothing until the argument I’ve suggested can win the day. And because no court can order a state prosecutor to prosecute anyone, abortionists in states like California and New York may just continue to operate.

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