Omar Bennett
The topic of whether or not unborn babies are protected by the constitution has been widely debated, with some arguing that the constitution does not explicitly include unborn children as 'persons'. However, in the United States, it is believed that Congress has the constitutional authority to protect unborn children under Section 5 of the Fourteenth Amendment, which states that no state shall deny to any person within its jurisdiction the equal protection of the laws. This has been interpreted to mean that a state is constitutionally required to protect the rights of all persons, including the unborn, to life and personal security. The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, which held that the US Constitution does not contain a right to abortion, has further fuelled the movement to enact federal life-protective legislation. Outside of the US, the Constitution of Ireland's Eighth Amendment gives the unborn a right to life equal to that of the mother, and the Constitution of Bhutan grants unborn royal children the right to succession in the absence of a male heir.
| Characteristics | Values |
|---|---|
| The US Constitution does not contain a right to abortion | N/A |
| Congress has the authority to protect unborn children | Section 5 of the Fourteenth Amendment |
| The originalist view is that the Equal Protection Clause guarantees protection from private violence to life, liberty, and property | N/A |
| The Fourteenth Amendment states that no state shall "deny to any person within its jurisdiction the equal protection of the laws" | N/A |
| The Constitution does not explicitly define unborn children as "persons" | N/A |
| The power to recognize or deny unborn children as holders of rights has historically been exercised by the states | N/A |
| The Declaration of Geneva advises physicians to "maintain the utmost respect for human life from the time of its conception" | Adopted in 1948 |
| The Basic Law of Germany includes the unborn as human beings with a right to life | Interpreted in 1975 |
| The Dublin Declaration on Maternal Healthcare prioritizes the fetal right to life | Signed in 2012 |
| The Constitution of Ireland gave "the unborn" a right to life equal to that of "the mother" | Eighth Amendment |
| The Constitution of Bhutan grants unborn royal children the right to succession, but only if there is no male heir | N/A |
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What You'll Learn
The Fourteenth Amendment
The interpretation of this clause is a key point of contention. Some argue that the original meaning of the clause was to secure the protection of fundamental rights, including life and personal security, for all persons, including the unborn. According to this view, state laws that allow elective abortion deprive a class of human beings (those at the earliest developmental stages) of equal protection under the law, and therefore violate their constitutional rights.
This interpretation is supported by the prevailing originalist view of the Equal Protection Clause, which holds that it guarantees protection from private violence to life, liberty, and property. From this perspective, a state violates this guarantee when it denies the protection of criminal laws to some persons while protecting others in their rights to life and personal security.
However, others question whether the Fourteenth Amendment provides a constitutional basis for protecting the rights of the unborn. They argue that the Amendment does not explicitly confer upon the federal government the power to grant or deny "personhood" to unborn children. Instead, the power to recognise or deny the rights and duties of the unborn has historically been exercised by individual states, as recognised by the Roe opinion and other Supreme Court cases.
Section 5 of the Fourteenth Amendment is specifically cited as providing Congress with the "power to enforce, by appropriate legislation", the due-process and equal-protection guarantees of Section 1 of the Amendment. This has been interpreted by some as providing Congress with the constitutional authority to enact life-protective legislation for unborn children.
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The Equal Protection Clause
The Fourteenth Amendment was ratified in 1868, and at that time, the word "person" was understood to include children in the womb. Thus, the Equal Protection Clause can be interpreted to protect unborn children from being deprived of their fundamental rights to life and personal security.
However, the argument for the constitutional protection of unborn children is not based on explicit constitutional text. Instead, it relies on historical understanding, the structure of the Constitution, and the jurisprudence of the Supreme Court. The power to recognize or deny the rights of unborn children has traditionally been exercised by the states, as seen in criminal, tort, and property law.
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The Supreme Court's Dobbs v. Jackson Women's Health Organization decision
In Dobbs v. Jackson Women's Health Organization, the Supreme Court of the United States addressed the question of whether the Constitution protects the right to an abortion. The Court's decision in this case has had a significant impact on abortion rights and has led to a renewed debate about the role of the federal government in protecting unborn children.
The Court's ruling in Dobbs v. Jackson Women's Health Organization was a landmark decision that overturned the previous rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The Court held that "Roe and Casey must be overruled" and that the Constitution does not explicitly mention abortion or implicitly protect the right to abortion through any of its provisions, including the Due Process Clause of the Fourteenth Amendment.
The decision in Dobbs v. Jackson Women's Health Organization has sparked a debate about the constitutional authority to protect unborn children. Some argue that Congress has the constitutional authority to protect unborn children under Section 5 of the Fourteenth Amendment, which provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." This argument is based on the original meaning of the clause, which was to secure the protection of the fundamental rights of persons, including life and personal security.
However, others question the constitutionality of such legislation, arguing that the Constitution does not explicitly include unborn children as "persons." Instead, the power to recognize or deny unborn children as holders of rights and duties has historically been exercised by the states. The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization has also raised questions about the application of abortion regulations to medical care that many people view differently from abortion, such as the morning-after pill, IUDs, and in vitro fertilization.
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The Declaration of Geneva
The US Constitution does not explicitly mention a right to abortion or the protection of unborn babies. However, the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization has led to debates about the constitutional authority to protect unborn children. Some argue that Congress has the constitutional authority to enact life-protective legislation under the Fourteenth Amendment, guaranteeing equal protection rights to unborn children.
Now, onto the topic of the Declaration of Geneva.
The original oath included the phrase "I will maintain the utmost respect for human life, from the time of its conception," but this was removed in 1994. The Declaration of Geneva, as a whole, sets ethical guidelines for physicians worldwide and remains one of the WMA's most consistent and influential policies.
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International perspectives on fetal rights
One notable example is the American Convention on Human Rights, which recognizes the fetal right to life from the moment of conception. In contrast, the Universal Declaration of Human Rights, the foundation of human rights, explicitly premises human rights on birth, with the "right to life" being tied to birth rather than conception. This declaration heavily influenced the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which did not debate the question of dating rights from conception and instead focused on protecting everyone's right to life.
The interpretation of the right to life varies across countries. For instance, in 1975, the Federal Constitutional Court in Germany interpreted the right to life under the Basic Law of Germany to include the unborn as human beings, stating that "life in the sense of historical existence of a human individual" exists "at least from the 14th day after conception." On the other hand, Ireland, which was one of the first countries to constitutionalize a fetal right to life in 1983, later repealed this amendment in 2018.
International conferences have also addressed the issue of fetal rights. At the 1994 International Conference on Population and Development (ICPD) in Cairo, the Vatican delegation proposed including the "right to life" among the guiding principles of the Programme. However, the Cairo Programme also emphasized state sovereignty in implementing the Programme, respecting various religious, ethical, and cultural backgrounds.
Additionally, the Convention on the Rights of the Child (CRC) addresses prenatal legal protection, stating that "the child... needs... appropriate legal protection before as well as after birth." However, due to ambiguity, the rights of a pregnant girl under the same Convention are interpreted as superseding those of her fetus, creating a maternal-fetal conflict. The Convention on the Elimination of All Forms of Discrimination Against Women also recognizes that restrictive abortion laws can jeopardize women's right to life and other human rights.
Overall, international perspectives on fetal rights vary, with some emphasizing the right to life from conception, while others focus on protecting the rights of pregnant individuals and voluntary motherhood. The discussion continues to evolve as societies balance human rights, cultural beliefs, and scientific advancements in this complex area.
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Frequently asked questions
The US Constitution does not explicitly protect unborn babies. However, some argue that the Fourteenth Amendment's Equal Protection Clause, which states that no state shall "deny to any person within its jurisdiction the equal protection of the laws," includes unborn children as persons entitled to equal protection under the law.
The Equal Protection Clause of the Fourteenth Amendment guarantees that all persons within a state's jurisdiction are entitled to equal protection under the law. This means that if a state protects the rights of some persons to life and personal security, it must do the same for all persons, including unborn babies.
Yes, several countries have laws or constitutional provisions that protect unborn babies to varying degrees. For example, the Eighth Amendment of the Constitution of Ireland gave "the unborn" a right to life equal to that of "the mother." However, in 2018, a referendum was passed to amend this provision and allow the Irish Parliament to legislate for the termination of pregnancies. Additionally, the Constitution of Bhutan grants unborn royal children the right to succession, but only if there is no male heir.
Several international declarations and agreements have addressed fetal rights, although they may not have the same legal force as constitutional protections. For example, the 1948 Declaration of Geneva advised physicians to "maintain the utmost respect for human life from the time of its conception," although this declaration has been amended several times. The Dublin Declaration on Maternal Healthcare, signed in 2012, also prioritizes the fetal right to life while recognizing the need for necessary medical treatments to save the life of the mother.
