Conservatives have devised a way to sidestep political accountability, while still achieving a nationwide abortion ban: by asking the Supreme Court to use the 14th Amendment to ban abortion across the U.S.
Since 1984, the Republican National Committee (RNC) has held a platform that includes support for an “amendment to the Constitution and legislation to make clear that the 14th Amendment’s protections apply to children before birth.” On Monday, mainstream media reported that the RNC was moderating its position on abortion at the behest of Donald Trump by omitting this explicit call for passage of a national ban, which would require amending the Constitution and passing congressional legislation.
The language of the platform maintains the party’s longstanding position that the Constitution’s 14th Amendment extends rights to fetuses—an interpretation that Republicans are already asking the Republican-stacked Supreme Court to adopt. They don’t need a new constitutional amendment or act of Congress when they have a stacked Supreme Court ready to interpret the current Constitution to ban abortion nationwide.
In Dobbs, the Supreme Court referred to “unborn human beings” 23 times, laying the groundwork for fetal personhood.
“Once you say that it is an ‘unborn human being,’ then it’s a short step to saying that laws allowing abortion are unconstitutional because they deny equal protection to those persons that are unborn human beings,” said Berkeley Law School dean Erwin Chemerinsky. “I believe that there may be a majority on the Court to take that position.”
Georgetown Law professor Michele Bratcher Goodwin noted that in Dobbs, the Supreme Court ignored the 14th Amendment’s definition of citizens as “persons born … in the United States,” which appeared in the first sentence.
“That’s very explicit. That’s very clear,” said Goodwin. “The Constitution does not mention embryos, fetuses or ‘unborn human beings.’”
Contrary to mainstream reporting, the RNC’s platform change is not an abandonment of their goal to ban abortion nationwide but a change in tactics about how to achieve one. With polls showing the vast majority of Americans support abortion rights, the RNC realizes that abortion is a losing issue for them at the ballot box. They have lost seven out of seven abortion ballot measures since Dobbs, including in the conservative states of Kansas, Kentucky and Ohio, as well as electoral defeats. Abortion drove the midterm congressional elections.
To give themselves political cover in the fall elections, conservatives have devised a way to sidestep democratic processes and political accountability while still achieving a nationwide abortion ban. They hope to do this by asking the conservative supermajority on the Supreme Court to interpret the 14th Amendment to ban abortion nationwide. In other words, they don’t need a new amendment because they assert the Constitution already bans abortion.
On Sept. 1, 2022, just 10 weeks after Dobbs, Catholics for Life (CFL) and two “unborn Petitioners”—represented by their pregnant mothers—asked the U.S. Supreme Court in Doe v. McKee to rule that fetuses, “regardless of gestational age,” are “entitled to the protections and guarantees of the due process and equal protection clauses of the United States Constitution.” They sought an order striking down a 2019 Rhode Island law legalizing abortion in the state.
Just over two months after the Supreme Court gave states the power to regulate abortion in Dobbs, CFL asked the Court to snatch that power back and ban abortion nationwide by ruling that “unborn human beings” have full constitutional rights.
In the case, CFL asked the Court to “identify the guarantees upon which Petitioners—any unborn plaintiff regardless of gestation age—can rely for constitutional protection under the Fourteenth Amendment, and whether unborn human beings will categorically be denied access to the courts to challenge the law.”
At issue was Rhode Island’s Reproductive Privacy Act passed in 2019, which codified abortion rights established in Roe v. Wade and eliminated a 1974 Rhode Island law stating, “human life commences at the instant of conception.” The law was never enforced because of Roe. Following Roe v. Wade and Casey v. Planned Parenthood, the Rhode Island law allowed abortion for any reason before viability and banned abortion after viability, except when necessary to preserve the health or life of the pregnant woman.
CFL argued the Rhode Island law “creates an unconstitutional classification of ‘persons’—viable and unviable,” which they described as the “quasi-suspect classification of age—gestational age … entitled to a heightened level of judicial scrutiny under the Fourteenth Amendment’s equal protection clause jurisprudence.”
CFL asked the Supreme Court “whether there is an objective gestational age where an unborn human being is entitled to the protections and guarantees of those due process and equal protection clauses.”
Further on, they asked, “Do unborn human beings, at any gestational age, have any rights under the United States Constitution? Or, has Dobbs relegated all unborn human beings to the status of persona non grata in the eyes of the United States Constitution—below corporations and other fictitious entities?”
CFL suggested the Court answer these questions by looking to “historical understanding and practice,” citing cases that went back to 1740 and the notoriously misogynistic 18th-century legal theorists Matthew Hale and William Blackstone. Referencing language in the Dobbs decision, they argued, “Legal protections for unborn human beings are objectively deeply rooted in the Nation’s history and tradition.” In their brief, CFL demanded, “This Court must complete the analysis begun in Dobbs. … Now is the time. This is the case.”
The Supreme Court passed on this case, declining to take it, but there will surely be more cases like this coming down the pipeline.
Conservatives have a long history of advocating for fetal personhood by using laws that were not intended to apply to fetuses, including drug laws, criminal child abuse, neglect, endangerment statutes and wrongful death laws. On Feb. 16, 2024, the Supreme Court of Alabama issued a decision in LePage v. Mobile Infirmary Clinic, Inc., on whether an embryo that has not been implanted in the uterus could be considered a “child” under an Alabama wrongful death law. The majority opinion concluded that “unborn children” are “children” under the law without exception or limitation.
Leading abortion opponents agree that the RNC platform calls for a ban on abortion. “We were pleased to see that the 14th Amendment was actually in the platform,” said Students for Life President Kristan Hawkins. She explained, “Saying it’s a state’s issue doesn’t actually legally jive with the 14th Amendment. That’s the reason we have the 14th Amendment, because your human rights should not be determined based on state lines.”
Contrary to reports in the mainstream press, Donald Trump is not moderating the Republican Party Platform on abortion and the Republican National Committee’s platform position on abortion is not a retreat from a nationwide ban. Trump is gaslighting voters about his support for a national abortion ban, which he has backed publicly and privately. By citing the 14th Amendment, the new RNC platform is still a call for constitutional personhood for fertilized eggs, embryos and fetuses, which the MAGA-stacked Supreme Court could adopt to create a nationwide ban not only on abortion but IVF and contraception, including IUDs and emergency contraception.
Vice President Kamala Harris has pledged to restore reproductive rights if she wins the November elections. “Donald Trump’s own words, his platform, his running mate, and his Project 2025 agenda all make it clear: He will ban abortion nationwide if he wins this November,” said Harris for President Spokesperson Sarafina Chitika. “Women across the country are already suffering from the extreme abortion bans that Trump unleashed, and if he wins, he will go even further to rip away women’s freedoms, punish women, and restrict access to birth control. Trump and his Project 2025 allies are determined to drag us backwards – but women will turn out to protect our freedoms and send Vice President Harris to the White House.”
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