§ 1 The argument
If the preborn are persons — as biology and Scripture affirm — then the Fourteenth Amendment's guarantee that no state shall 'deny to any person within its jurisdiction the equal protection of the laws' requires that the laws protecting born persons from homicide also protect the preborn. A state that criminalizes killing some human beings while categorically exempting the killing of preborn human beings withdraws the equal protection of the law from a class of persons. Bills that add carve-outs (e.g., no prosecution of the mother, or protection only after a heartbeat) reintroduce the very inequality the clause forbids.
§ 2 Supporting points
- Prof. Charles Rice: refusing to prosecute the killing of unborn persons while prosecuting all other killings denies the unborn equal protection.
- George & Finnis (Dobbs amicus): the unborn are Fourteenth Amendment persons; the amendment 'codified equality in the fundamental rights of persons.'
- Originalist view (Federalist Society): a state violates equal protection when it selectively withdraws the protection of criminal law from a disfavored class.
- Abolitionists apply this to reject exception clauses as constitutionally and morally inconsistent.
§ 3 Discussion questions
- Does 'equal protection of the laws' permit a legislature to categorically exempt one class of killing from homicide law?
- What is the difference between prosecutorial mercy in a specific case and a statute that pre-acquits an entire class?
§ 4 Related
Source transcript
Drawn from
Does the Pro-Life Movement Hate Justice? (T. Russell Hunter, 'Justice Alone') — The equal-protection / H.R. 722 exception-clause discussion (Lila Rose / Americans United for Life).
§ 5 References
Can the Fourteenth Amendment Be Used to Protect Human Life Before Birth? (Rice, Paulsen, George & Finnis, Craddock on equal protection for the unborn)
legal analysis
Supports: legal scholars' case that the 14th Amendment protects the unborn
Yes, Congress Has Constitutional Authority to Protect Unborn Children (equal protection = a state may not withdraw the protection of homicide law from a class of persons)
legal analysis
Supports: originalist argument that selectively withdrawing homicide protection violates equal protection
H.R.722 — Life at Conception Act (119th Congress): declares constitutional right to life at fertilization; 'Nothing in this bill shall be construed to authorize the prosecution of any woman for the death of her unborn child.'
primary/legislation
Supports: example bill with the maternal non-prosecution clause abolitionists critique
Congressional resolution would recognize unborn as 'persons' under the 14th Amendment Equal Protection Clause; protections 'shall not be construed to permit the prosecution of any woman.'
press release
Supports: equal-protection framing plus the 'shall not permit prosecution of any woman' clause
The Abolitionists Are Wrong: Equal Protection Does Not Mean a Mother Who Gets an Abortion Has Committed a Capital Crime (pro-life case for maternal immunity / targeting abortionists)
opposing view / steelman
Supports: steelman: pro-life case for maternal immunity and targeting abortionists
Equality Emerges as a Ground for Abortion Rights (pro-choice equal-protection counter: bans implicate women's equal citizenship)
opposing view
Supports: opposing (pro-choice) equal-protection argument grounded in women's equality