What If a Fetus Has Constitutional Rights?
Some conservatives want the Supreme Court to go beyond overturning Roe v. Wade. But there are limits to what courts should do.
A theory of the 14th Amendment.
Photographer: Alex Wong/Getty ImagesRoe v. Wade has been harshly criticized from the time it came down in 1973, and not only by opponents of legal abortion. The eminent constitutional scholar John Hart Ely, though he favored permissive abortion laws, wrote that the Supreme Court had barely attempted to show how a right to them could be derived from the Constitution. Many liberal academics, finding the reasoning in Justice Harry Blackmun’s majority opinion hopelessly flawed, have tried to devise other constitutional justifications for its conclusion.
The criticism has obscured the fact that many conservative jurists have agreed with a crucial part of Roe’s reasoning. Blackmun conceded that the case for a constitutional right to abortion “collapses” if a human fetus counts as a “person” entitled to constitutional protections. In that case, he wrote, the Constitution would guarantee the fetus’s right to life. He then argued that fetuses do not fall under the Constitution’s protections. On this point, Judge Robert Bork and Justice Antonin Scalia, both conservative legal giants, agreed with Blackmun and echoed part of his argument.