Prenatal Personhood, State Duties, and Congress's Abortion Power Under the Fourteenth Amendment

David R. Upham

Document Type

Article

Publication Title

Catholic University Law Review

Abstract

Many anti-abortion jurists have contended that by its original meaning, the Fourteenth Amendment not only (I) recognizes the personhood of prenatal human beings, but also (2) requires states to have and enforce the anti-abortion laws necessary to the equal protection of these prenatal persons, and even (3) empowers Congress to pass remedial anti-abortion laws where the states fail to protect such persons. In this essay, I will contend that the Amendment does indeed recognize the personhood of prenatal human beings, but largely leaves with the states the authority to determine the scope of the protection to be afforded such persons. More specifically, the evidence is clear and convincing that the Amendment's Due Process and Equal Protection Clauses, as originally understood, guarantee the prenatal person's life only against (I) state destruction, and (2) state refusal to enforce the laws, if any, that might protect such life. Therefore, Congress's abortion power extends no further than to remedy such state violence or state refusal to enforce-but does not interfere with the states' power to determine to what extent, if any, the laws will protect prenatal persons.

First Page

427

Last Page

448

Publication Date

Summer 2025

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