The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, holding that the Constitution of the United States does not contain a right to abortion, has reinvigorated the movement on Capitol Hill to enact federal life-protective legislation. During the 117th Congress, more than 100 Representatives and at least eighteen Senators co-sponsored legislation to “implement equal protection” under the Fourteenth Amendment to protect “the right to life of each born and preborn human person.” And as the 2024 election heats up, efforts to prohibit elective abortion nationwide after 15-weeks gestational age have become the subject of heated debate among Republican presidential hopefuls.
Some conservative and libertarian legal commentators question whether such legislation would be constitutional. It is, in truth, not a close question. Although there may be additional constitutional avenues to protect the unborn, we believe Congress is on firm constitutional footing to enact life-protective legislation under Section 5 of the Fourteenth Amendment. Such legislation would be an appropriate remedy for state deprivation of the equal-protection rights to which unborn children are constitutionally entitled.
It is now well-established that when the Fourteenth Amendment was ratified in 1868, the word “person” had a settled public meaning that included children in the womb. And the Fourteenth Amendment specifically provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The original meaning of this clause was to secure (equal) protection of the fundamental rights of persons—including life and personal security—as these had been expounded in Blackstone’s Commentaries on the Laws of England and leading American treatises. Indeed, the prevailing originalist view is that the Equal Protection Clause guarantees protection from private violence to life, liberty, and property, and that a state violates that guarantee when it withdraws remedies in tort for injuries or denies the protection of criminal laws. If a state protects some persons in their rights of life and personal security, it is constitutionally required to do so for all persons—including the unborn.
Because state laws allowing elective abortion necessarily deprive a class of human beings—those at the earliest developmental stages—of “the equal protection of the laws,” they violate constitutional rights. Such laws expose a disfavored class of persons—unborn children—to lethal violence.
Section 5 of the Fourteenth Amendment vests Congress with “power to enforce, by appropriate legislation,” the due-process and equal-protection guarantees of Section 1 of the Amendment. The original meaning of Section 5 was capacious, and likely operated as a sort of analogue to the Necessary and Proper Clause of Article I. When he introduced the Amendment as its Senate sponsor, Senator Jacob Howard explained that Section 5 “enables Congress, in case the States shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment.” Or as Representative Thaddeus Stevens put it, Section 5 “allow[s] Congress to correct the unjust legislation of the States” so “that the law that operates upon one man shall apply equally upon all.”
Twelve years after the Fourteenth Amendment’s adoption, the Supreme Court in Ex Parte Virginia affirmed that it “was to secure equal rights to all persons, and, to insure to all persons the enjoyment of such rights, [that] power was given to Congress to enforce its provisions by appropriate legislation.” Thus, whatever legislation is “adapted to carry out . . . the equal protection of the laws against State denial or invasion . . . is brought within the domain of congressional power.” The Supreme Court’s controversial decision in City of Boerne v. Flores, whatever may be said for or against it, does not undermine that conclusion. Even the Boerne Court acknowledged that “it is for Congress in the first instance to ‘determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.’”
Having established Congress’s authority for enacting national pro-life legislation to ensure equal protection, what state action would such legislation remediate? After all, constitutional rights are typically only enforceable against the government—not against private actors. And the Supreme Court held in DeShaney v. Winnebago County Department of Social Services that a state’s failure to protect an individual against private violence does not violate the “liberty” secured by the Due Process Clause.
Setting aside obvious cases of state action—such as judicial bypass allowing a minor’s abortion (as underlying Garza v. Hargan), or the performance of abortions by Department of Veterans Affairs employees—every state law allowing elective abortion involves state action insofar as it selectively withdraws the protection of law from a disfavored class. As even the DeShaney Court acknowledged, “the State may not, of course, selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause.”
A state’s legislative act to deny the equal protection of the laws is unconstitutional. Suppose a state enacted a law permitting homicide with malice aforethought, so long as the victim is black, or of Croation ancestry, or left-handed, or disabled. No one would seriously argue that such a law is compatible with equal protection, or that it falls outside the scope of congressional remediation. Yet that is essentially what permissive state abortion laws do—for example, by codifying invidiously discriminatory exceptions to the state’s general policies of protecting persons from lethal violence, so long as the victim is still in his mother’s womb. These unconstitutional legislative acts manifestly deny equal protection to unborn persons, and are an appropriate target for remedial congressional legislation.
Congress should include in any proposed legislation detailed factual findings regarding the widespread and persisting deprivation of unborn children’s constitutional rights due to permissive abortion laws. And life-protective legislation under Section 5 should not be directed exclusively against the actions of private persons, without reference to the laws of the states or their administration by state officials. For example, the creation of new tort causes of action against executive officials who deny equal protection to the unborn may be appropriate.
Nevertheless, Congress should not shy away from regulating primary conduct that the state would permit due to its discriminatory legislative acts. Although the regulation of such primary conduct as an exercise of Section 5 power was frowned upon in United States v. Morrison, the dominant view among originalist scholars today is that this is the type of remedy justified by the original meaning of the Equal Protection Clause, and which also avoids the commandeering of state governments. When state action withholds the equal protection of the laws, Congress may respond to the state’s failure to meet its equal protection obligations by supplying the kinds of legal remedies that the state was obligated to provide.
But suppose federal legislation only prohibited states from allowing abortion after some gestational age, such as after a detectable embryonic heartbeat or after an unborn child can feel pain. Are gestational-age bans unconstitutional simply because they fail to secure equal protection for all unborn children? Not necessarily. The Supreme Court has long recognized, as it did in Minnesota v. Clover Leaf Creamery Co., that even in the equal-protection context, “a legislature may implement its program step by step, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations.”
Still, courts reviewing underinclusive Section 5 legislation should remain alert to whether the law’s under-inclusivity serves as a cover for animus or discriminatory motive. Courts should also consider, as part of their means-end analysis, whether Congress has indicated that its piecemeal approach is time-bound rather than permanent. Legislative action that proceeds “one step at a time” should continue apace. In all events, if a reviewing court were to find that Congress’s underinclusive means were insufficiently tailored to its life-protective end, the remedy would be to “level up” protection, not to hold the statute unconstitutional.
Dobbs did not determine how a future Supreme Court might view national pro-life legislation enacted under Section 5. But as even Justice Kavanaugh acknowledged twice in his Dobbs concurrence, future abortion policy may be addressed “through the democratic process in the States or Congress.” It is Congress’s constitutional prerogative—indeed, its solemn obligation—to secure the equal-protection rights of our tiny brothers and sisters at the dawn of their lives.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at firstname.lastname@example.org.