Is Abortion Already Illegal?

Because abortion is ultimately a question of basic human liberty and not just good or bad policy, I have never agreed with those conservatives who think “leaving it to the states” is a sufficient solution to the issue (though it would be far preferable to the anti-democratic status quo forced upon us by Roe v. Wade). I instead support a Human Life Amendment to the U.S. Constitution, to protect the right to life nationwide. States should be able to do many things, but treating certain classes of human beings as property is not among them.
However, until the HLA becomes reality, I have also been wary of banning abortion via an act of Congress, for fear of violating the boundaries of Congress’s enumerated powers under Article I, Section 8 of the Constitution. The 14th Amendment, which was enacted to guarantee political rights to newly freed black Americans after the Civil War, seemed to come close to authorizing Congress to ban abortion, but the language about “all persons born” was always a hang-up for me.
But is that really a barrier? After closer contemplation of the 14th Amendment’s language, I’ve concluded the answer is no. Here are the relevant passages in their entirety:
Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
There’s no question that this empowers Congress to prevent states from treating their inhabitants unequally or depriving them of life, liberty or property. But do the unborn count among those inhabitants? Let’s go line by line:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
So whatever else you are, you’re not a US citizen until you’re born.
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; […]
When taken with the first sentence, this pretty clearly indicates that the unborn aren’t entitled to the full slate of “privileges or immunities” a citizen enjoys. So no guns or voting for fetuses. Sorry.
However, the sentence continues:
[…] nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
“Nor” sets up another set of requirements, separate and distinct from the preceding clauses. Here, the amendment discusses protections applicable to “any person,” not “any citizen.” So while some legal protections and entitlements only come with American citizenship, others apply to every human being within our borders, regardless of their legal status.
This makes perfect sense. Legal rights are merely the terms of an agreement made by a particular group of people in their constitution, whereas natural rights are, according to the Declaration of Independence, God-given qualities possessed by every human being, which cannot be justly denied or violated by anyone.
There are obvious reasons why countries don’t want to have to give foreign nationals exactly the same legal protections and benefits as their citizens—for instance, we shouldn’t have to go through a full-blown jury trial every time we want to deport a violent illegal immigrant. But at the same time, we would never want to set the standard that people can do whatever they want to someone just because he’s not an American.
This certainly seems to fit with the original intent behind the measure—as President Ronald Reagan wrote in his famous essay, “Abortion and the Conscience of the Nation”: 
When Congressman John A. Bingham of Ohio drafted the Fourteenth Amendment to guarantee the rights of life, liberty, and property to all human beings, he explained that all are “entitled to the protection of American law, because its divine spirit of equality declares that all men are created equal.” He said the right guaranteed by the amendment would therefore apply to “any human being.”
If the unborn are people—and from both scientific and philosophical perspectives, they clearly are—then the Constitution already requires that their right to life be protected, even without a new amendment explicitly saying so. Any state that prohibits the murder of fully-grown humans while allowing the murder of those in the womb is unconstitutionally discriminating against the latter.
All right-of-center observers agree that the Constitution doesn’t require the right to abortion, but the understanding I’ve just proposed—that the Constitution actually forbids it—is much rarer. Even Justice Antonin Scalia believes the Constitution is silent on the question. Further, conservatives tend to dislike enacting their policy goals through unelected courts on principle. For these reasons, pro-lifers should continue to support the Human Life Amendment anyway, so that when abortion’s long-overdue end finally does come, nobody can plausibly question its democratic legitimacy. But if we manage to save lives by convincing even a few courts that the right to life is an equal-protection issue, so much the better.

Happy Birthday, Mr. President

Today would have been the late, great Ronald Reagan’s 100th birthday. Many rightfully remember him for his unwavering support of free markets, limited government, and those suffering under Soviet oppression, but here it seems fitting to highlight one aspect of Reagan’s philosophy of liberty that the Right may be in danger of forgetting. In 1983, Reagan wrote a stirring essay called “Abortion and the Conscience of the Nation” which demands to be read in full by all who call themselves conservatives. A key excerpt:

Regrettably, we live at a time when some persons do not value all human life. They want to pick and choose which individuals have value. Some have said that only those individuals with “consciousness of self” are human beings. One such writer has followed this deadly logic and concluded that “shocking as it may seem, a newly born infant is not a human being.”

A Nobel Prize winning scientist has suggested that if a handicapped child “were not declared fully human until three days after birth, then all parents could be allowed the choice.” In other words, “quality control” to see if newly born human beings are up to snuff.

Obviously, some influential people want to deny that every human life has intrinsic, sacred worth. They insist that a member of the human race must have certain qualities before they accord him or her status as a “human being.”

Events have borne out the editorial in a California medical journal which explained three years before Roe v. Wade that the social acceptance of abortion is a “defiance of the long-held Western ethic of intrinsic and equal value for every human life regardless of its stage, condition, or status.”

Every legislator, every doctor, and every citizen needs to recognize that the real issue is whether to affirm and protect the sanctity of all human life, or to embrace a social ethic where some human lives are valued and others are not. As a nation, we must choose between the sanctity of life ethic and the “quality of life” ethic.

I have no trouble identifying the answer our nation has always given to this basic question, and the answer that I hope and pray it will give in the future. American was founded by men and women who shared a vision of the value of each and every individual. They stated this vision clearly from the very start in the Declaration of Independence, using words that every schoolboy and schoolgirl can recite:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.

We fought a terrible war to guarantee that one category of mankind — black people in America — could not be denied the inalienable rights with which their Creator endowed them. The great champion of the sanctity of all human life in that day, Abraham Lincoln, gave us his assessment of the Declaration’s purpose. Speaking of the framers of that noble document, he said:

This was their majestic interpretation of the economy of the Universe. This was their lofty, and wise, and noble understanding of the justice of the Creator to His creatures. Yes, gentlemen, to all his creatures, to the whole great family of man. In their enlightened belief, nothing stamped with the divine image and likeness was sent into the world to be trodden on. . . They grasped not only the whole race of man then living, but they reached forward and seized upon the farthest posterity. They erected a beacon to guide their children and their children’s children, and the countless myriads who should inhabit the earth in other ages.

He warned also of the danger we would face if we closed our eyes to the value of life in any category of human beings:

I should like to know if taking this old Declaration of Independence, which declares that all men are equal upon principle and making exceptions to it where will it stop. If one man says it does not mean a Negro, why not another say it does not mean some other man?

When Congressman John A. Bingham of Ohio drafted the Fourteenth Amendment to guarantee the rights of life, liberty, and property to all human beings, he explained that all are “entitled to the protection of American law, because its divine spirit of equality declares that all men are created equal.” He said the right guaranteed by the amendment would therefore apply to “any human being.”