I had the chance to write for a feature put together by the New York Times opinion page, in which seven contributors offered ideas for constitutional amendments.
My contribution was a fetal-personhood amendment that would explicitly include unborn human beings under the existing protections of the Fifth and Fourteenth Amendments. For a time, attempting to add a human life amendment to the Constitution was a fairly serious strategy idea for the pro-life movement.
The existing proposals for such an amendment — which were introduced in Congress a few times in the 1970s and ’80s and, back in those days, even received substantial support from prominent Democrats (including Joe Biden) — were divided into two types: a federalism-style amendment to overturn Roe and send the issue of abortion back to the states, or a personhood amendment that would ascribe to the unborn the rights of citizenship, making legal abortion an impossibility under the Constitution.
My proposal falls into the second camp. Here’s a bit of how I explained the need for such an amendment:
The Supreme Court held in Roe v. Wade that the Constitution protects a right to abortion. But a unique human life begins at the moment of fertilization, which means that every abortion intentionally ends a human life; the court’s decision denied to an entire class of human beings that right upon which all other rights depend.
Unless the court overturns its decades of hazy and unworkable precedent protecting abortion, lawmakers who attempt to safeguard the equality of the unborn will remain unable to do so. Even if the court changes course, without a constitutional amendment explicitly recognizing fetal personhood, states will maintain a maze of abortion laws, some of which will continue to allow abortion.
You can read the rest of my pitch and the draft amendment over at the Times. This piece is only a thought experiment in the sense that such an amendment isn’t politically likely, at least right now, and constitutional amendments are tough to pass (for good reason). My more immediate hope is that in the upcoming Dobbs v. Jackson Women’s Health Organization the Supreme Court will take the opportunity not only to uphold Mississippi’s reasonable abortion regulation but also to undo the major damage it has done to our constitutional order with its decision in Roe v. Wade and the flimsy house of cards it has built over the decades to prop up that ruling.
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