Many jurists and legal commentators have concluded that the Constitution does not protect a woman’s right to terminate a pregnancy because nothing in the Constitution’s text and no principle or rule derived from its structure, internal logic, or propositions supports striking down restrictive legislation on abortion. In short, Roe v. Wade, Casey v. Planned Parenthood, and their progeny have been wrongly decided because the Constitution has absolutely no bearing on abortion other than to leave it to the legislative branch.
The conclusion that the Constitution is silent on abortion is false because the Constitution, in the text of the Fourteenth Amendment pertaining to the basic rights of persons and their entitlement to the equal protection of the laws, does have something to say about abortion. The Fourteenth Amendment grants only persons basic rights to life, liberty, property, and the equal protection of the laws. Pregnant females undoubtedly are constitutional persons. The prenatal humans they gestate may or may not be constitutional persons, but they must be one or the other. Consequently, prenatal humans either have the same basic rights on equal terms with born constitutional persons or they do not.
If prenatal humans are not constitutional persons, then they lack basic constitutional rights. The constitutional status of pregnant women who are persons with basic rights, then, is necessarily superior to that of nonpersons, and this superior status entitles them to have an abortion if necessary to preserve their lives or avoid significant damage to their health. It also entitles them to end their pregnancies to some extent as an exercise of their liberty.
If prenatal humans are constitutional persons, then the Fourteenth Amendment grants the unborn the same right to life possessed by all other persons and requires the State to afford that life the same protection it gives to all other persons. As the State cannot justify the routine killing of one class of blameless persons by another, the Constitution requires the State to ban all abortions. Therefore, regardless of whether prenatal humans are or are not constitutional persons, the Constitution significantly affects the State’s power to regulate abortion, and the conclusion that the Constitution is silent on abortion must be false.
However, the ascription of constitutional personhood to unborn humans results in women losing their fundamental rights to maintain bodily integrity and refuse medical treatment, to exercise autonomy over the conduct of their daily lives as all other persons, and to avoid subordination of their vital interests in order to preserve the interests of another. This creates a dangerous constitutional anomaly and results in an unacceptable destruction of the Constitution’s commitment to equality in basic rights for all persons. This Article argues that the only way to avoid this anomaly is not to regard prenatal humans as constitutional persons. Nevertheless, the State has a morally legitimate interest in valuing and protecting prenatal humans–even a moral obligation to do so, and it may enforce that interest, provided that it does not violate the fundamental rights and interests of persons.