Though the idea is not new – proponents of the pro-life cause have long argued that the unborn should have equal protection under The Constitution – Craddock’s paper has the unique position of appearing in the most influential law journal in the nation.
Titled “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?”, the article questions both liberal and conservative positions on how the issue of abortion should be approached legally. Along the way it casts doubt on arguments from opposing legal stalwarts – namely, both Harry Blackmun and Antonin Scalia.
It’s not a light read – what submission to The Harvard Journal of Law & Public Policy is? – but it is an intriguing one which any serious pro-lifer should read.
The basis of Craddock’s argument is as follows:
The Fourteenth Amendment’s use of the word ‘person’ guarantees due process and equal protection to all members of the human species. The preborn are members of the human species from the moment of fertilization. Therefore, the Fourteenth Amendment protects the unborn.
Again, the argument is not new – in fact it’s the same argument used by the State of Texas in Roe. But the idea that the Constitution actually recognizes the unborn as a person runs contrary to the position taken by many conservative scholars – including Scalia, who held that the judiciary was inadequate for determining when life begins and that the state ballot box was the appropriate place to decide the abortion issue.
Craddock doesn’t mince words in his defiance of Scalia’s position:
Justice Scalia’s view that abortion should simply be put to a democratic vote is worrisomely reminiscent of Senator Stephen Douglas’s advocacy of ‘popular sovereignty’ to determine whether states could permit racial slavery in the antebellum period.
To defend his position, Craddock relies heavily on the accepted definitions of terms from the time of the Fourteenth Amendment’s writing, as well as the then-existing legal precedents at both the federal and state levels – in other words, commonly accepted legal practice which Blackmun and his consenting colleagues in Roe failed to follow.
Craddock ultimately concedes that though sound, his argument is unfortunately not likely to lead to significant inroads in the fight to end abortion and that a Constitutional life amendment “is likely necessary”. But if it spurs further thought and discussion among proponents of either side, his work will have been well worth the effort. As he points out by referencing William Blackstone in the closing to his article:
Until all human beings are recognized as legal persons, bringing science and law into consonance, ‘the dissonance between truth and fiction will increase, rather than diminish.’