Beyond States’ Rights and Fetal Rights: A State’s Duty to Equally Protect All Humans, Born and Preborn
Bioethics in Law & Culture Spring 2022 vol. 5 issue 2
Steven Jacobs, J.D., Ph.D.
Today, 130 countries ban the killing of preborn humans through elective abortion procedures (“abortion”) at fertilization and 64 countries ban abortions at some at some point between fertilization and fetal viability, which is typically recognized as 24 weeks into pregnancy. This means that 96% of the world’s nations recognize post-viable abortions as conduct that should be legally deterred, yet our Nation is governed by the 1973 Roe v. Wade U.S. Supreme Court decision that determined women have a constitutionally guaranteed right to abortion before fetal viability.
However, in 2021, the Supreme Court agreed to hear Dobbs v. Jackson Women’s Health Organization on the question of "whether all pre-viability prohibitions on elective abortions are unconstitutional." Since the Court subsequently and repeatedly did not find the Texas Heartbeat Act to be unconstitutional—even though the law effectively violates Roe’s viability standard—many predict that Roe will soon be overturned. The more pressing question is not whether the Court will use Dobbs to overturn Roe, but what will be the Court’s new standard for state abortion laws.
In this Article, Part I gives a brief overview on the Court’s basis for overturning Roe; Part II discusses the states’ rights approach to overturning Roe (i.e., states have the right to protect life reserved to them by the Tenth Amendment Right); Part III outlines the fetal rights approach (i.e., preborn humans have the right to life guaranteed by the Fifth and Fourteenth Amendments). Finally, in Part IV, this Article proposes a novel, overriding path that is more protective of the preborn: the equal protection approach, which dictates that states have the Fourteenth Amendment duty, under the amendment’s Equal Protection Clause, to not just protect fetal rights with abortion laws but to equally protect born and preborn by charging abortions under the states’ existing homicide and murder statutes.
Part I: Introduction and Overview of Roe v. Wade
In the U.S. abortion debate, while the Court deliberates, bodies accumulate. With 62 million humans abortively killed in the U.S. since Roe, amidst the 1 billion humans abortively killed around the world since the year 2000, there is no issue or even set of issues nearly as important as abortion.
As our Nation faces the prospect of a post-Roe America, states are further dividing on abortion: pro-abortion legislators pass laws to expand legal abortion access and anti-abortion legislators pass laws to restrict it. While Colorado now permits abortion at any time in pregnancy, and for any reason, Oklahoma will soon charge health care workers with felonies if they perform any abortion procedure that will not save the life of the mother.
Today, our Nation is still divided even though the Court issued its 1973 decision in Roe v. Wade as a call on “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution”. Clearly, the Court’s decision in Roe did not resolve the national abortion controversy, and it is only intensifying as we near the Court’s decision in Dobbs.
As the question of how the Court will overturn Roe seems more pertinent than the question of whether the Court will, it is important to understand the legal paths available to the Court and what each would mean for national unity in a country that has become increasingly divided on political issues in recent years. But first, consider the basis the Court has to overturn Roe and the signs that the Court will do so in Dobbs.
A. The Basis for Overturning Roe
Roe’s majority opinion relied on two primary understandings of facts and laws to establish its central holding that a woman has a fundamental right to have an abortion before her preborn child is viable—which was set at the 28th week of pregnancy in 1973 and is currently set at 24th week of pregnancy—and that a state’s interest in protecting life is only compelling and able to outweigh that right after a human fetus reaches viability. First, there was no consensus of experts that agreed on when a human’s life begins so the Court could not uphold Texas’s abortion ban since it merely adopted “one theory of life”, that a human’s life began at conception. Thus, the Court could have logically defended viability as an appropriate standard since that was the first point at which preborn humans could be protected by existing homicide states.
Second, since states were reluctant to protect preborn humans in non-abortive contexts, the Court was even less inclined to recognize a state’s interest in protecting preborn humans in the abortive context. The logic would go: a state did not charge the killing of a preborn human by their father in a non-abortive context—such as in an attack on their mother—then why should a state be able to charge the killing of a preborn human by their mother in the abortive context?
The Court used these understandings of facts and laws to reject arguments that preborn humans have independent constitutional rights and that states have a Tenth Amendment right and a Fourteenth Amendment duty to protect all humans in their jurisdictions. The Court admitted that recognizing the personhood of preborn humans would cause the case for abortion rights to collapse because “the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment”. Thus, after reading the Fourteenth Amendment to guarantee a woman’s right to have an abortion, the Court determined that a state’s right to protect life is only compelling at fetal viability and “may override the rights of the pregnant woman that are at stake”.
1. Stare Decisis Standard
In 1992’s , the Supreme Court considered overturning but did not find that there were any special grounds that warranted overturning or even re-examining its previous decision in . However, the Court admitted that “[i]n constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to the Court’s constitutional duty.” So, while the Court found that “neither the factual underpinnings of ’s central holding nor our understanding of it has changed”, it provided a roadmap on how to overturn for the Court in and even provided an exemplar of a case in which changes in facts not only justify but require the overruling of previous decision by the Court.
Brown v. Board of Education was a 1954 case in which the Court overturned its 58-year-old precedent in Plessy v. Ferguson. The Court considers this the only other time that it was called upon to resolve a national controversy. The Court in Casey explained that “the Plessy Court’s explanation for its decision was so clearly at odds with the facts apparent to the Court in 1954 that the decision to reexamine Plessy was on this ground alone not only justified but required.”
To briefly summarize the case, the Court in 1896 issued a decision based on its view that people can enjoy equal protection under the law even when members of different races are given separate opportunities and accommodations, but the Court in 1954 overturned the precedent after finding that legally sanctioned racial segregation marked some individuals as inferior.
Thus, while our legal system is governed by the legal doctrine stare decisis, which requires courts to uphold precedent, following precedent is not an “inexorable command” and there are not only cases in which overturning precedent is justified but required because “facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification”. If the facts underlying Roe have so changed, current members of the Supreme Court would merely be following in the footsteps of the Brown Court if they overturn a precedent that survived for decades.
2. Changes in Facts
In 1973, the Court claimed it could not find a consensus of experts who agreed on when a human’s life begins and argued that “the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.” The Court used this lack of consensus to reject Texas’s argument that it had the right to protect a human’s life starting at fertilization. Today, the Court has ample evidence to find that most Americans believe that biologists are most qualified to determine when a human’s life begins and there is a scientific consensus on the fertilization view, given recent literature reviews and a recent international survey of biologists.
First, thousands of Americans were surveyed on who they thought was most qualified to determine when a human’s life begins. 80% selected biologists and the rest were spread out across the other options: Philosophers, Religious Leaders, Supreme Court Justices, and Voters. 91% of the participants suggested it was because biologists are objective experts on scientific matters. This makes sense, as biologists are neutral experts on the study of life and their opinion should trump one of a party who could be biased by their ideologies or motivations.
Second, recent literature reviews of peer-reviewed science journals and medical textbooks have revealed that the fertilization view is often affirmed without citation or explanation, which reveals that it is not a controversial view according to authors and publishers of leading academic journals in the biological sciences. They include journals with high impact factor scores, such as Cell, Nature, Science, Reproduction, and Trends in Cell Biology.
Finally, academic biologists from over one-thousand colleges and universities around the world were then surveyed, and 96% affirmed the view that a human’s life begins at fertilization. This was despite 85% of the biologists identifying as pro-choice. Dozens of biologists also signed an amicus brief in the Dobbs case—which was submitted in support of neither party in the case and took no position on abortion—and affirmed that “no current member of the Court would have to speculate [on when a human’s life begins], today. The fertilization view is widely recognized—in the literature and by biologists—as the leading biological view on when a human’s life begins.”
So, while in Roe, the Court previously dismissed the argument that a state has the right to restrict abortion at fertilization because of a lack of consensus on when life begins. Given these updates to the state of man’s knowledge on when life begins, how can the Court uphold Roe in light of this change in facts available to the Court? How can the Court continue to strike down abortion restrictions and hold that a state does not have a compelling interest in protecting a human’s life until the human reaches a certain age or developmental landmark?
3. Changes in Laws
In 1973, the Court claimed that in “areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth.” So, since the Court could not be sure that a human’s life began at any point before birth and it observed that states did not protect preborn humans in non-abortive contexts, it rejected the claim that preborn humans are persons within the meaning of the Fourteenth Amendment or its Equal Protection Clause and held that the Fourteenth Amendment guarantees a woman’s right to abort a pregnancy.
However, the pro-life movement’s legislative achievements over the last 48 years shows that the facts have changed. Today, there are at least eight contexts in which preborn humans are legally protected: (1) abortion restrictions, (2) fetal homicide laws, (3) restriction on capital punishment of pregnant women, (4) financial recovery for fetal deaths, (5) inheritance rights of preborn children and posthumously born children, (6) legal guardianship of preborn humans, (7) preborn children’s rights to deceased parents’ benefits, and (8) prenatal child support laws.
Fetal homicide laws are similar to abortion restrictions, as both are passed to deter the killing of a preborn human. Men have been legally charged, convicted, and sentenced for homicide and murder for killing their preborn child by giving their pregnant partner an abortion pill; for attacking a pregnant woman and causing her to lose her pregnancy. 38 states, including very pro-abortion states such as California, have fetal homicide laws and federal legislation has even been passed to protect unborn victims of violence. It is clear that, today, a large majority of the Nation recognizes the preborn as humans deserving of legal protection from homicide and murder, even if that was not the case in 1973.
B. How We Know Roe Will Soon Go
First, consider the circumstances surrounding the Court’s decision to hear the Dobbs case, which centers on Mississippi’s 15-week abortion ban. The Court had its first conference to discuss Dobbs in September of 2020. In a virtually unprecedented move, the Court did not render agreement to take the case until May of 2021. By spending months deliberating on whether they should take the case—it signaled that the Court had not only been discussing whether or not to hear Dobbs, but was actually deciding whether or not the Justices were ready to overturn Roe.
Next, consider the Court’s continuing and repeated decisions to let the Texas Heartbeat Act go into effect. Roe’s viability standard prevented states from protecting babies from abortion before viability, which is at 24 weeks, since 1973. Every single pre-viable abortion restriction had been struck down… until the Texas law, which restricts abortion after the sixth week.
If the justices believed Roe was constitutional, then why would they allow the heartbeat act to go into effect when it clearly violates Roe? In fact, today, Roe has effectively been overturned by the Court. The question is what approach it will use to formally overturn Roe’s viability standard in the upcoming Dobbs case.
Part II. States Have the Right to Protect Life
‘The states’ rights approach’, ‘the democratic approach’, ‘the federalist approach’, ‘return it to the states’, ‘the incrementalist strategy’, etc.; it goes by many names, but this approach to overturning Roe stands for the proposition that the Court should have never gotten involved in abortion politics, in the first place, and it should get out of it now. From a legal and constitutional perspective, since the passage and enactment of criminal laws, particularly homicide laws, regarding conduct within a state’s jurisdiction is reserved to the states by the 10th Amendment, some argue that the Court should have no say on state abortion laws. From a strategic and political perspective, some argue that abortion is too big of an issue to allow nine unelected judges to dictate; the people, through their elected representatives, should be able to determine appropriate abortion policy for their states.
This approach was likely spawned by the fact that Roe, the Court’s first foray into abortion politics, rendered as unconstitutional state abortion bans across the Nation. It is also worth noting that the approach developed after years of failed attempts to pass a human life amendment to the U.S. Constitution, which would have superseded Roe and banned abortion across the nation.
Mississippi Attorney General Lynn Fitch, in her Dobbs brief and in her Wall Street Journal opinion piece in the case, has argued for this approach as she intended to “make the case to the Supreme Court for overturning Roe v. Wade and returning decision-making about abortion policy to the people.”
In an amicus brief in support of Mississippi—which was filed by Americans United for Life, the Nation’s most powerful pro-life public interest law firm—228 members of Congress advocated for this approach and justified it on federalism grounds: “Returning the political choice to regulate abortion to States, as a reflection of the will of the People, accords with the principles of Federalism.”
Indeed, Clarke Forsythe, senior legal counsel of Americans United for Life argued that, in Dobbs, “[t]he court desperately needs to decentralize the [abortion] issue and send it back to the states”; he even went as far to warn against the fetal rights approach: “pro-life leaders need to think long and hard about overturning federalism and taking the issue away from the states.”
While it is understandable that lawmakers would seek to grow their own lawmaking power on federalist grounds, it is less obvious why the leaders of our Nation’s most powerful pro-life organizations would advocate for such a limited ruling. The question is whether they truly believe that the Court has no right to have a say in abortion—which would mean the Court has no power to rule that permissive abortion laws in states such as California, Illinois, and New York violate the constitutional rights of the preborn—or if they are merely hoping for the Court to return it to the states, today, in preparation for a later fight for fetal rights.
Part III. Preborn Humans Have the Right to Life
The fetal rights approach is more straightforward and has a longer history in the pro-life movement (originally labeled the ‘pro-right to life movement’). As the title suggests, advocates for this approach recognize that (1) human zygotes, embryos, and fetuses are humans, (2) all humans are natural persons, (3) the right to life of persons, both natural persons and legal persons, is guaranteed by the 5th and 14th Amendments. This approach does have ample basis in the history of the 14th Amendment and the Court has supported the logic that underlies this approach.
19th-century U.S. Senators Jacob Howard, Lyman Trumbull, and Allen Thurman all stated that the Fourteenth Amendment was passed to protect all humans, including foreigners, Native Americans, homeless people, and all other non-citizens. Justice Hugo Black confirmed that the history of the Amendment proves it was designed to protect weak and helpless humans. Using this understanding of the Amendment, Justices Stevens, Blackmun, Brennan, and Marshall, who all supported Roe, argued that Roe would be overturned and fetal rights would be guaranteed if there is not a fundamental and well-recognized difference between a fetus and a human being. Since a fetus is a human being, based on the views of those who ratified the Fourteenth Amendment and justices who formed the majority in Roe, “the permissibility of terminating the life of a fetus [can] scarcely be left to the will of the state legislatures” because the Amendment guarantees the rights of all natural persons, which entails born and preborn humans, and thus legal protections against abortion access.
This approach is supported by leading legal philosopher John Finnis and Princeton professor Robert George. Harvard Law graduate Josh Craddock said this approach can be supported by originalism. George reviewed the amicus briefs submitted in support of the Mississippi law in Dobbs and found that only one-fifth of the briefs argued that the Court should recognize the rights of the preborn. It is curious that only 16 out of the 80 briefs of predominantly pro-life organizations would argue for the right to life of the preborn. This can be a sign lowered expectations due to learned helplessness, patience, or prudence; it could signal that many in the movement dedicated to advocating for the rights of the preborn do not actually believe the preborn deserve the right to life.
Part IV. States Have the Duty to Protect the Preborn with Homicide and Murder Statutes
While fetal rights advocates might believe that the recognition of a fetus’s right to life as a constitutional person is the ultimate protection, consider Germany. Since 1975, preborn humans have been recognized as full constitutional persons in Germany, yet there are still about 100,000 abortions each year and under 1,000 homicides each year. Despite the fact that preborn humans are recognized as protectable persons and abortion is putatively banned, Germany’s ratio of abortive to non-abortive homicides is not remarkably dissimilar from the annual, global ratio of 73 million abortions to 415,000 homicides.
Why is this? While the preborn are recognized as constitutional persons, abortions are not investigated, charged, or legally deterred in the same way as non-abortive homicides. Thus, if the U.S. Supreme Court merely recognizes the right to life of the preborn without equally protecting them by requiring states to protect them with the same homicide laws that protect born humans, then the U.S. abortion rate could merely decrease but not fall.
The conventional understanding of the U.S. Constitution is that it sets forth negative rights and liberties that merely restrain the government from interfering in the lives of its citizens. However, the Fourteenth Amendment’s Equal Protection Clause makes clear that states are not only limited from treating some persons as different from other persons, but that states have an affirmative duty to provide equal protection of laws to all persons.
Imagine a state reformed its homicide laws to exclude the killings of non-citizens or non-residents. Would the Supreme Court stand idly by? Let’s take it a step further. What if a state merely refused to charge the homicides of a certain class of people? Would the Court stand idly by or, in an effort to ensure equal enforcement, would it take whatever steps it could? Perhaps issuing a subsequent decision, as it did when Arkansas refused to follow Brown, or would it go as far as to invalidate the murder convictions of the citizens until the state finally charged and convicted killers of non-citizens?
If recent events surrounding the impending overturning of Roe have taught us anything, it is that we should not fall victim to what Harvard Law’s Adrian Vermeule has described as “the poverty of political imagination.” The pro-life movement (originally labeled the ‘pro-right to life movement’) stands for the proposition that all humans have the right to life and all are equally guaranteed that right; this was the very theme of the 2022 March for Life: “Equality begins in the womb.” However, that right cannot be equally guaranteed if all are not equally protected; if the infringement on all is not equally deterred by law.
As we face the supposed specter of a post-Roe America, it is important to consider who will be charged in illegal abortions. As Americans United for Life’s Clarke Forsythe has found, states did not prosecute women for illegal abortions before Roe. However, a recent Guttmacher Institute report on substance abuse during pregnancy found that: “24 states and the District of Columbia consider substance use during pregnancy to be child abuse under civil child-welfare statutes.” If the law has evolved to charge drug-addicted pregnant women with child abuse for merely consuming substances, regardless of intent to harm their preborn children, then might we be headed to a day in which women are prosecuted for illegal abortions?
Pro-life advocate Abby Johnson was recently asked about this in a recent interview, and she suggested that while there should be no criminal charges for women who are forced into having an abortion and for those who did not understand that an abortion takes a life, there are situations in which due process and justice would require criminal charges for those who knowingly taking their preborn child’s life. What she suggested aligns with what seems to be the governing principle of the ‘abolitionism’ camp in the pro-life movement: If the pro-life movement truly believes that a human’s life begins at fertilization, and that all humans are equal and equally deserving of rights, then all elective abortions must be illegal and must be legally charged and punished in the same way as all other homicides.
Under that view, it might be true that a woman is a second victim in an abortion, but it would be in the same way as an abused woman who fears for her future, so she leaves her newborn child to die in a trash receptacle. While both are in a difficult position, and everyone should have sympathy for both, one cannot recognize the equality of the preborn if they don’t recognize the criminal culpability in one situation and not the other.
Years ago, pro-life apologist Scott Klusendorf rightly argued that “[i]t’s time for pro-life Christians to open the casket on abortion”; ‘abolitionists’ would argue that it is now time for the pro-life movement to recognize the criminals who perpetrate an abortive killing: those who conspire to commit the murder and the murderer, themselves, be they the doctor or the mother.
It seems extreme when a state legislator proposes a bill that would permit prosecutors to charge a woman with conspiracy to commit murder for making an abortion appointment in another state to circumvent her state’s abortion laws, but conspiracy to commit murder would be the charge for a husband who hires a professional killer to murder his wife. This unequal treatment can be explained, in part, by our proven bias to charge, convict, and sentence women less harshly than men—researchers have demonstrated huge gaps between men and women, and this was noted decades ago by social scientist and researcher Emile Durkheim: “[W]e are inclined to forget that there are murders of which [women have] a monopoly, infanticides, abortions and poisonings. Whenever homicide is within her range, she commits it as often or more often than man”.
Today, over half of abortions are solely performed by pregnant women when they knowingly ingest the abortion pills furnished by an abortion provider. When Roe is overturned, this number will spike and the vast majority of abortion victims will be killed solely by the actions of their mothers. While it might seem unlikely that pro-life legislators would make this push, they have become so emboldened by the Dobbs case that many are no longer including legally indefensible exceptions for rape in their abortion laws. In fact, there exists no rape or incest exception in homicide statutes because a person is not legally justified in killing their rapist or molester, which makes sense since rape itself is not a capital crime. In a society in which a person cannot be put to death for rape, how can we legally permit the killing of a preborn child because their father had raped their mother? How can we allow a child to pay for the sins of their father?
For a moment, consider the activist who took an abortion pill on live television, the couple that considered a sex-selective abortion after they found out they were having a boy, and the couple that had an abortion, even though they grew to love their preborn child, when they found out that the wrong embryo had been implanted during an IVF procedure. Would such callous, wanton killings not entail criminal culpability and should not be charged as crimes? How about deliberate killings of differently abled preborn humans? How about gendercide in the womb, which has been shown to take place in the U.S. and has killed 160 million preborn girls throughout India and China?
It is worth noting that more serious charges of murder require mens rea (“a guilty mind”) and some degree of intent to kill a human or knowledge that the conduct entails the killing of a human. Since polls suggest that only 38% of Americans know that a human’s life begins at fertilization—and only 9% of young Democrats do—it is likely that many women who take an abortion pill will not have the criminal intent required for any charge above negligent homicide. This would mean that the killing of preborn humans would still not be deterred and punished to the level of non-abortive homicides.
However, as there are efforts to ensure pregnant women are able to give fully informed consent before undergoing an abortion, there could be efforts to ensure mifepristone and misoprostol have black label warnings that inform women that the ingesting of the pills could end the life of a human growing inside of them if they are pregnant. If that were to occur, and Americans came to understand the homicidal nature of abortion, then abortions could be similarly charged and convicted as non-abortive homicides and the preborn could receive equal protection under our Nation’s laws.
Roe is about to go. In 1973, the Court did not know when a human’s life begins and states did not protect preborn humans in non-abortive contexts. Today, there is an overwhelming scientific consensus on the fertilization view and states protect the preborn in several non-abortive contexts, including fetal homicide laws that protect the preborn at fertilization. Simply put, since the preborn are now recognized as humans in fact and persons under the law, Roe must be overturned. Given the manner of the Court’s decision to re-examine Roe in the Dobbs case and the Court’s repeated decisions to let the Texas Heartbeat Act to go into effect, it is clear the Court will soon overturn Roe.
The only question for the Court that remains is what will states be able, or be required, to do to protect life and restrict abortion access. Critics of the states’ rights approach can rightly point out that the approach found its limitations in the 19th-century debate on slavery. It is hard to imagine anyone today would argue that a state should have the right to determine its laws on slavery, so why should a state have the right to determine its laws on abortion? Indeed, as even pro-Roe Justices have admitted, if abortion entails the taking of a human life, then “the permissibility of terminating the life of a fetus [can] scarcely be left to the will of the state legislatures.”
Perhaps the more pressing question for the pro-life movement is how it will proceed in a post-Roe world. There are tough choices to make if the movement is to stay united in the fight for life and able to fully take advantage of the historic opportunity the Court is about to provide. Some leaders are already discussing the messaging that should be utilized, but there is a coming fork in the road: will the movement advocate for true equal protections for the preborn, or will it pursue abortion laws with a smaller class of possible offenders and shorter sentences? Only time will tell.
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 See: Jacobs, Steve. “The Scientific Consensus on When a Human’s Life Begins” at 231-233. Issues in Law & Medicine. Fall 2021. Available for purchase at: https://issuesinlawandmedicine.com/product/jacobs-the-scientific-consensus-on-when-a-humans-life-begins and available for free at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3973608
 “Brief of Biologists as Amici Curiae in Support of Neither Party”. July 29, 2021. Available at: https://www.supremecourt.gov/DocketPDF/19/19-1392/185346/20210729162737297_19-1392%20BRIEF%20OF%20BIOLOGISTS%20AS%20AMICI%20CURIAE%20IN%20SUPPORT%20OF%20NEITHER%20PARTY.pdf
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 Jacobs, Steven Andrew. “The Future of Roe v. Wade: Do Abortion Rights End When a Human’s Life Begins?” at 847. Tennessee Law Review. 2021. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3550442
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