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The Legal Fictions of the Anti-Abortion Right
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The ink is barely dry on the Supreme Court’s ruling declaring there is no constitutional right to abortion, and already the leading lights of the anti-abortion movement are planning their next steps: creating a fictional right to personhood for the “preborn.”
The anti-abortion movement is explicit about this goal using novel interpretations of the word “born” in the 14th Amendment to mean “conceived” and “person” to include “any fertilized egg or embryo.” If the right gets its way, from the moment of conception, states and the national government will be able to intervene and monitor the pregnancies of women and “state laws against homicide would in principle apply to killing the unborn by abortion.”
“Lock ‘em up,” say the antediluvian legal minds of the right.
Sounds convoluted and illogical, right? That’s because it is. But don’t let the right’s nuttiness fool you into thinking this approach can’t possibly move forward as judicial doctrine. The right will cook up any legal hokum necessary to get what it wants. Anti-abortion extremists aren’t a particularly honest or consistent bunch. They are moral zealots and as soon as they have the votes to do what they want, they’ll do it. And the Supreme Court will surely be right there to back them up with legalistic mumbo jumbo based on “historical research” purporting to show the drafters of the 14th Amendment thought of being born metaphorically, as in “a pear tree is born when a seed is planted on fertile soil,” or some other tall tale about the meaning of persons. But as the conservative movement’s leading jurist, Justice Antonin Scalia, made clear many years ago, this approach to the 14th Amendment is a fiction: “I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons.”
Decent and good-hearted Americans obviously disagree about the morality of abortion at different stages in a pregnancy. Many people express qualms about abortion while others express little concern. This moral uncertainty underlies the majoritarian position of keeping abortion safe, legal, and rare. Because people disagree on abortion, most voters support the Roe status quo, want women to make these decisions not politicians, back birth control, and support policies to help families raise children. But most of these sensible policies are now threatened because the anti-abortion extremists have political power in many states and control of the Court.
Liberal patriots will need to band together to reject the right’s ideological nonsense. America is a land of individual rights and constitutional freedoms for real and existing people—men and women, alike. It is a land of "live and let live" for all citizens, not a country where one narrow moral or religious view is foisted on everyone else.
Americans who care about freedom and democratic pluralism will need to apply these values to upcoming elections and vote out those zealots who create legal fictions designed to make abortion unsafe, illegal, and unavailable everywhere.
[Editor’s note: This post was updated on July 3.]