The States’ Interest in Protecting Unborn Human Life
Bioethics in Law & Culture Fall 2021 vol. 4 issue 4
Chris Maska, J.D.
Texas Alliance for Life
Beginning with Roe v. Wade, the Supreme Court found that the states lack a significant interest in protecting unborn human life. In Roe, the Court added the legal phrase "potential life" to the Supreme Court lexicon. The Court determined that it would only consider the "potential life" of the unborn child. As a matter of biology, this phrase is erroneous. The unborn child from the moment of conception is an actual life. The unborn child is alive. But the phrase is also erroneous as a matter of law. Both the Constitution and the Declaration of Independence recognize the unborn child as a holder of rights. While never use the phrase "unborn child" both documents are clear that one has rights because one is human. This is a key issue because no one disputes that the states have a significant interest in protecting actual human life. But when the courts only see the states' interest as protecting "potential life," they feel free to conclude this is a lesser interest than protecting a woman's supposed liberty interest in the right to privacy, which in this context means the right to abortion. Of course, if the unborn child's life is just a "potential life," the woman's actual liberty interest will always trump the state's interest in protecting "potential life." But the contrary is also true; if human life begins at conception, if the unborn child is an actual life, the state's interest in protecting actual human life will trump a woman’s liberty interest.
In the case of Dobbs v. Jackson Women’s Health, the United States Supreme Court has taken the question: Whether all pre-viability prohibitions on elective abortions are unconstitutional? At issue is whether the states have an interest in protecting the life of the unborn that is sufficient to support any restrictions on abortion before viability that are not designed to protect the life or health of the mother. Hence, just what interest a state has in the unborn child's life is the central issue in the case.
The Court in Roe found the states’ interest in protecting unborn life insufficient to allow for criminal bans on abortion because the only state interest that it found was an interest in “potential life.” The phrase “potential life” makes its appearance in the following paragraph:
The third reason is the state's interest-some phrase in terms of duty-in protecting prenatal life. Some of the arguments for this justification rests on the theory that a new human life is present from the moment of conception. The state's interest and general obligation to protect human life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, legitimate state interest in the area need not stand or fall on acceptance of the belief that life begins at conception or some point before live birth. In assessing the state's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the state may assert interests beyond the protection of the regnant woman alone.
While the Court introduces the phrase “potential life,” it does not define the phrase. But whatever the phrase may mean, the Court determines that perhaps the case can be decided without determining whether life begins at conception. If the Court had found that a state's interest in "potential life" was sufficient to support criminal statutes prohibiting abortion, there would be no need to determine whether life begins at conception. However, the Court determined that the interest in "potential life" is not sufficient. Hence, one would think that the Court needs to determine whether life begins at conception. The Court, however, concluded that it could not make that determination:
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
This is a rather amazing statement. What consensus has ever been arrived at by philosophers and theologians? Adding them to the list required for a consensus means that there will never be the stipulated consensus answer. If one required a consensus of philosophers and theologians about the freedom of the press or due process, there would be no such rights. What the freedom of the press and due process actually mean is far more uncertain than the issue of when life begins.
While the Court does not define what it means by the phrase “potential life,” a dictionary can define both “potential” and “life.” The first definition for “potential” is: existing in possibility: capable of development into actuality. The first definition for “life” is: the ability to grow, change, etc., that separates plants and animals from things like water or rocks. At conception, the fertilized egg is not like a rock, and it is not a mere possibility. The fertilized egg is an actual life, not a potential life. It is not a belief but a biological fact that human life begins at conception. Perhaps what the Court was really trying to say is that the law does not recognize the unborn child as a person deserving of protection the law.
Preamble of the Constitution
The Preamble of the Constitution has long been recognized as useful for interpreting the Constitution. As Joseph Story observed in his Commentaries on the Constitution:
The importance of examining the preamble for purposes of expounding the language of a statute has been long felt and universally conceded in all jurisdictions. It is an admitted maxim in the ordinary course of the administration of justice that the preamble is the key to open the minds of the makers, as to the mischiefs, which are to be remedied, and the objects which are to be accomplished by the provisions of the statute
. . .
There does not seem any reason, why in a fundamental law or Constitution of government an equal attention should not be given to the intention of the framers in the preamble.
When there is a question of what a provision of the Constitution means, it is appropriate to consider the preamble. The Preamble of the Constitution states whom the Constitution is designed to benefit:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America.
No one doubts that in the Constitution, "people" or persons at least include humans who are born. If an individual is born and a part of the People of the United States, that individual is a person protected under the Constitution. The Constitution is designed to protect and secure the blessings of liberty for such persons. But born individuals are not the only persons under the Constitution. The Constitution was created by the People of the United States to "secure the Blessings of Liberty to ourselves and our Posterity." What are the Blessings of Liberty but the rights held under the Constitution? Posterity continues long into the future. It certainly encompasses those who will be conceived and born sometime in the future. It also encompasses the children of today: both born children and children in the womb. Since the Constitution is designed to secure the blessings of liberty for unborn children just as it is designed to secure the blessings of liberty for born individuals, unborn children are persons under the Constitution.
The Constitution was explicitly intended to secure the blessings of liberty for our posterity, emphasizes that the Constitution was not designed for atomized individuals but for persons who live within families and communities. Not only is a child in need of care within the womb, but a child is also radically dependent on others for years. At the end of life, this deep dependence often reappears. In the middle part of one's life, this dependence is not absent. For example, medical and sanitary advances that others invented and maintained allow one to survive to old age. Human life is life lived in a community whose members have mutual obligations to each other. The obligation to protect life begins with conception and continues to death. O. Carter Snead provides an excellent discussion of why the nature of human life requires the recognition of this obligation, what it Means to be Human, the case for the Body in Public Bioethics.
Declaration of Independence
The Declaration of Independence recognizes that each person is created equal and possesses unalienable rights:
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness-That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed. . .
(Emphasis added) The Declaration holds that all men are created equal. It is an interesting use of the word “created” in the phrase “all men are created equal.” The Declaration recognizes that there is a Creator. The Creator is God. Whether this is the biblical God or the God of the Deists, God is recognized as starting everything from nothing. But neither the biblical God nor the Deists’ God is viewed as creating each individual man from nothing.
One may ask: when is an individual person created? Perhaps creation in this sense refers to when we can first say that this person exists. When there is a member of our species when previously there was not, creation has occurred. Biology answers the question of when human life begins. A person is created at conception. At conception, a person with 46 chromosomes exists for the first time. At conception, we are confronted with a new member of our species. When that new member of our species comes into being at conception, a new member of our species has been created as that word is used in the Preamble of the Constitution.
One may well argue that in 1776 no one knew about conception. That is certainly true. But the standard set forth in the Declaration is met when a person is created. Whenever a person is created, the person is a holder of rights. The rights identified in the Declaration are human rights, and they are rights that belong to one just because one is human. The rights to life, liberty, and the pursuit of happiness belong to a human being at conception. That is when one becomes a human. The Declaration espouses the prevailing theory of rights in 1776. The theory of rights had not changed in the few years between then and 1787 when the Convention adopted the Constitution and 1788 when ratification was completed. Under this theory of rights, human beings have rights from the moment that they are human beings.
States May Protect Unalienable Rights
That all human beings, including unborn humans, have unalienable rights does not itself answer the question of whether states can protect an unborn child's right to life. That is why the next phrase in the above-quoted portion of the Declaration is so significant: "That to secure these Rights, Governments are instituted among Men," It is a proper function of governments to protect the unalienable rights to life, liberty, and the pursuit of happiness for all human beings no matter how young or how old they are. When a government protects the right to life, it, likewise, protects the rights to liberty and the pursuit of happiness. If one's life is taken, one's liberty to choose how one will live is taken away as well as the right to pursue happiness. The right to life is the fundamental right because, without life, there are no other rights. One of the key functions of governments is to secure the right to life for persons born and unborn. A state has a compelling interest in protecting the right to life of all of its people.
This is not to say the government must secure the life of all persons. That is a related but a different argument. The only argument being made here is that states are acting legitimately when securing the right to life of unborn persons. But perhaps some are not persuaded by the argument based just on the language of the Constitution and believe that the Declaration should not be used to interpret the Constitution.
In the history of the United States, the most significant use of the Declaration of Independence to interpret the Constitution was made by Abraham Lincoln in his debates with Stephen Douglas. Perhaps the best analysis of this historic confrontation is Harry Jaffa’s Crisis of the House Divided. The Lincoln-Douglas debates were a series of debates during the United States Senate election for Illinois in 1858.
Slavery had long been a contentious issue in the United States. Often the dispute was over whether a new state would be a slave state or a free state. The Northwest Ordinance, passed in 1789, prohibited slavery in the United States Territories west of the Ohio River. This had the practical consequence that it would be very unlikely for any state created from this territory to become a slave state. If slaves could not be brought into the territory, the people in the territory would be unlikely to establish a slave code and allow slavery. In fact, the new states created from the Northwest Territory became free states. The Missouri Compromise allowed Missouri to come into the Union as a slave state and Maine to come into the Union as a free state. In addition, it prohibited slavery in any of the Louisiana Purchase lands north of the 36”30’ parallel except for Missouri. The Compromise of 1850 allowed California to come into the Union as a free state, ended the slave trade in the District of Columbia, and amended the Fugitive Slave Act. The Kansas-Nebraska Act of 1854 allowed for the territorial organization of Kansas and Nebraska. Even though Nebraska was territory covered by the Missouri Compromise and, hence, free territory, the Kansas-Nebraska Act allowed the territorial government to determine whether it would be slave or free. Stephen Douglas was a key factor in getting the Kansas-Nebraska Act passed.
The central issue in the Lincoln-Douglas debates was whether slavery should be allowed in the territories. Douglas argued that the people of the territories should decide this and that it made no difference to him how they decided. Douglas saw the democratic process as the most important thing about republican government and what the voters and their representatives actually decided was not significant, even when the issue was whether slavery should be expanded or not. Douglas called his position “popular sovereignty.”
Lincoln took the position that whether slavery was allowed to expand made a great deal of difference. The basis of Lincoln’s argument is the same section of the Declaration of Independence quoted above. If all men are created equal and are endowed by their Creator with the unalienable right to liberty, slavery is not morally neutral. Slavery is a moral evil. The unalienable rights of the Declaration belong to all. They are human rights that all possess because they are human. Lincoln argued:
Certainly, the negro is not our equal in color-perhaps not in many other respects; still in the right to put into his mouth the bread that his own hands have earned, he is the equal of every man, black or white. In pointing out that more has been given to you, you cannot be justified in taking away the little given to him. All I ask for the negro is that if you do not like him, let him alone. If God gave him little, that little let him enjoy.
One can have human rights or a right to slavery, but you cannot have both. Slavery violates the unalienable right to liberty. If slavery can be imposed on black people, why cannot it be imposed on white people? If some would justify slavery based on a claim that black people are not as intelligent as white people, would not it be right for a more intelligent person to enslave a less intelligent white person:
I know there are those who draw an argument in favor of slavery from the alleged intellectual inferiority of the black race. Whether this argument is founded on fact or not, I will not stop to inquire but merely say that if it proves anything at all, it proves too much. It proves that among the white races of the world, anyone might be properly enslaved by any other who made greater advances in civilization. And, if this rule applies to nations, there is no reason why it should not apply to individuals; it might easily be proved that the wisest man in the world could rightfully reduce all other men and women to bondage.
Slavery is a fundamental denial of human rights. To allow slavery in one instance is to allow slavery in another instance. There is no principled way to limit slavery once it is allowed. If slavery is allowed, what human right is not open to question? In what way can it be affirmed that all men are created equal?
Slavery is Incompatible with a Republican Form of Government
Not only is slavery morally evil, but it also is incompatible with a republican form of government. The fundamental claim of a republican form of government, as opposed to monarchy or aristocracy, is that all men are created equal and possess unalienable rights. But if one person can enslave another, the very foundation of republican government has been attacked. What has become of the unalienable right of liberty?
When the Declaration and the Constitution were adopted, slavery had long been on our shores. The founding generation hoped that slavery would fade away. Soon after the Constitution was adopted, 7 out of the original 13 states prohibited slavery. Unfortunately, newly admitted states allowed slavery to spread. Slavery would not be soon vanquished. Worse still, instead of viewing slavery as a moral wrong that would be ended, Americans began to see slavery as a moral good or at least, like Douglas, as morally neutral. Lincoln took his stand against viewing slavery as anything less than a grave moral evil and a repudiation of a republican government. This did not make Lincoln an abolitionist. Lincoln recognized that the Constitution permitted states to choose whether to allow slavery. Lincoln recognized that under the Constitution a state could make slavery legal. But while the Constitution allowed such a choice, the choice for slavery is morally wrong and fundamentally opposed to a republican government. Lincoln's belief in the unalienable rights of the Declaration led him to declare slavery a moral evil and oppose the expansion of slavery. Lincoln's insight is that if the Constitution were not used to end slavery, it would conflict with the Declaration of Independence.
Comparison Slavery and Abortion
Unlike the case of slavery before the Thirteenth Amendment, there is no provision of the Constitution that clearly creates a right to abortion. Any claim that there is such a right would need to be shown as being compatible with the Constitution as interpreted by the Declaration of Independence. As Hadley Arkes points out in Natural Rights and the Right to Choose, abortion, just like slavery, violates the unalienable rights proclaimed by the Declaration and, just like slavery, attacks the very foundation of republican government.
As slavery fundamentally undermines a republican government, so does abortion. In fact, it does so to a greater degree. Abortion destroys the rights of life, liberty, and the pursuit of happiness. If one can kill a child because of its age or location, why can one not kill an adult because of age or location. Is not an adult connected to a heart/lung machine as dependent on the device for blood circulation as the unborn child is dependent on its mother for the blood? If an arbitrary determination such as viability is sufficient to support taking a life, what other arbitrary determination can be used to take life. Perhaps some might wish to allow the killing of older people because they consume a lot of resources but produce little, as they lose their mental and physical faculties. Arkes observes:
If we can arbitrarily alter the definition of a "man" as it suits our convenience if nature does not define a human being that we are obliged to respect, then — as we shall see-we remove the distinct ground of our claim to "natural rights." But if we do that, if we remove "natural rights," we convert all rights into rights of "positive law."
One can either have abortion rights or human rights. You cannot have both. If one possesses rights simply because one is human, those rights cannot be taken away by another because one decides that you are not a person, that you are just a “potential life.”
If one person can kill another person for any reason, what has become of equality of all and the rights to life, liberty, and the pursuit of happiness? Some might argue that one must weigh the mother’s right to liberty against the child’s right to life. However, this is not a correct statement of the rights at issue. The child’s right to life, liberty, and the pursuit of happiness are all at stake. If the child is killed, it will have no liberty and no ability to pursue happiness. It could be argued that a mother who is not permitted to kill her child has her liberty and ability to pursue happiness impaired, but they are not completely destroyed, as are the rights of an unborn child. Abortion is a violation of unalienable rights and a moral evil, just like slavery. Further, as even the Roe Court found, if life begins at conception, there can be no right to abortion:
In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the amendment.
The Roe Court believed that the unborn child was not a person for purposes of the 14th Amendment. But the Supreme Court in Roe and in its other abortion decisions has not considered whether the Declaration of Independence and the Preamble of the Constitution affirm both that the unborn child has rights and that states may legitimately protect those rights.
Both the Declaration of Independence and the Preamble to the United States Constitution hold that the unborn child is a person who has rights and that the protection of such rights is a legitimate function of government. While neither document uses the phrase “unborn child, ” the Constitution was written to secure the blessings of liberty for our posterity. As the unborn are surely our posterity, they are entitled to the protections of the Constitution. The Declaration proclaims that every person created has unalienable rights and that governments are instituted among men to secure such rights. The authors of the Constitution shared this view, as it was the general view at the time. The states are surely acting within their authority when they protect the right to life of the youngest and most vulnerable. The states' interest in securing the blessings of liberty for our posterity is sufficient to allow the states to pass criminal laws against abortion.
 Roe v. Wade, 410 US 113, 150 (1973)
 Roe v. Wade, 410 US 113, 157 (1973).
Joseph Story, Commentaries on the Constitution of the United States, pp. 163-164, Carolina Academic Press, 1987.
 U.S. Const., Preamble.
 O. Carter Snead, What it Means to be Human, The Case for the Body in Public Bioethics, Harvard University Press, 2020.
 The Declaration of Independence is found in front of the first title of the United States Code under the heading "Organic Laws of the United States of America." uscode.house.gov/browse/frontmatter/orgainiclaws&edition=. For a good discussion of why the Declaration is an organic law and why it is at the beginning of the United States Code see Richard H. Cox, The Four Pillars of Constitutionalism, Prometheus Books, 1998.
 It would not be until 1875 that conception was described. Edward Dolnick, Why it took Scientists so long to Figure out Where Babes Come From. July 11, 2017. altasobscura.com/article/discovery-where-babiescomefrom.
 Jefferson argued that the Declaration of Independence was “an expression of the American mind” that “its authority rests on harmonizing the sentiments of the day.” Crisis of the House Divided, p. 157.
 Harry Jaffa, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates, 50th Anniversary Edition, University of Chicago Press, 2009. This paper merely attempts to follow the argument made in Crisis of the House Divided regarding the Lincoln-Douglas debates. Crisis of the House Divided, p. 320 citing the Springfield speech of July 17, 1858.
 Crisis of the House Divided, pp. 336-337 citing the Edwards, Illinois speech of September 11, 1858, where Lincoln read from passages of a letter written by Henry Clay in 1849.
 Crisis of the House Divided, chs. XIV and XV.
 For a fuller and better presentation of the argument that the Lincoln-Douglas debates as presented in Jaffa's Crisis of the House Divided applies to abortion, see Hadley Arkes, Natural Rights & the Right to Choose, Cambridge University Press, 2002. Arkes does not make the argument based on the Preamble of the Constitution.
Natural Rights & the Right to Choose, p 31.
 Roe v. Wade, 410 US 113, 157 (1973).
 John Finnis, Abortion is Unconstitutional, First Things, April 2021 makes a compelling argument that when the Fourteenth Amendment was adopted, the unborn child was included in the word "person" for reasons not related to the argument in this article.
Abortion | Slavery | Declaration of Independence | Constitution