After Dobbs: Towards a Federal Ban on Abortion

By Joshua Craddock

At long last, Roe v. Wade’s fifty-year reign of terror has ended.  

Dobbs v. Jackson Women’s Health Organization is the most important Supreme Court decision of our lifetimes—for its correction of an egregious constitutional error, yes, but much more importantly, for the countless human lives that may now be rescued from the butcher’s knife.

But Dobbs does not end the struggle toward securing legal protection for unborn children.  That is because it corrects only one of Roe’s erroneous holdings.  

To reach its well-known conclusion that the Constitution guarantees a right to abortion, the Roe Court first determined that unborn children are not “persons” entitled to equal protection.  If unborn children were persons, Roe acknowledged, the case for abortion “collapses, for the fetus’s right to life would then be guaranteed specifically by the [Fourteenth] Amendment.”

After Dobbs, our task must be to secure exactly what Roe acknowledged: the Constitution’s guarantee that every “person” in the United States shall enjoy “the equal protection of the laws”—born or unborn.

Indeed, for all its dicta about returning the question of abortion to the states, the logic of Dobbs moves toward the only just solution: recognizing the constitutional personhood of unborn children at the federal level.  

Five times the majority opinion observes that abortion is “critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty’ … because it destroys what [Roe and Casey] called ’fetal life’ and what the [Mississippi] law … describes as an ‘unborn human being.’”  The majority repeatedly distinguished other substantive due process cases on the grounds that “‘[a]bortion is a unique act’ because it terminates ‘life or potential life.’”  Central to the Dobbs holding, then, is the unavoidable fact that abortion takes a human life.

As Justinian’s Digest reminds us, “it is useless to know the law without knowing the persons for whose sake it was established.” Positive law concerning the meaning of “person” should conform as closely as possible to reality (the nature of what human beings truly are) and justice (the duties that are owed to them). Happily, the Fourteenth Amendment’s guarantees of due process and equal protection do just that.  

The drafters of the Fourteenth Amendment deliberately chose the most expansive language possible—“any person”—when they drafted its due process and equal protection clauses.  And they rooted those guarantees in a rich legal history that recognized the child in the womb as a natural person, entitled to the fundamental rights of persons, including life and personal security.

Legislation in the states is an immediate imperative, and a federal Human Life Amendment is an admirable (and perhaps necessary) long-term goal.  But these should not excuse federal inaction on abortion in any branch of our federal government:

1. Congress must act to prohibit abortion nationwide, exercising its Section 5 power to enforce the Fourteenth Amendment’s guarantees.  

2. Pro-life Presidents must ensure that unborn children are treated as constitutional persons and implement that view throughout the Executive branch.  

3. The judiciary must not shirk its responsibility to ensure equal protection for the preborn in the cases that will inevitably arise.

Until Roe’s first and foundational error is addressed directly, America’s abortion culture can never be fully uprooted. In the aftermath of Dobbs, we must press toward total abolition.