On the Verge of Overturning Roe (part1)


Prof. William Wagner

WFFC Distinguished Chair for Faith & Freedom at SAU

Our Justice Center’s strategy for overturning Roe v Wade is on the verge of success.  After many years of moving the Court toward constitutional truth we were instrumental in getting the Court to, for the first time, review a question that does not pre-suppose the existence of a right to abortion.  The question before the Court is whether states can protect pre-born children at the earliest stages of their life by regulating and banning abortion.   

At various stages of this litigation, our Justice Center represented the American Association of Pro Life Ob/Gyn Physicians, Right to Life, and one of the most influential bio-ethics centers in the world.

Roe said the 14th Amendment is the source of the right to abortion. We argue in our brief the Roe was wrongly decided in that no right to abortion can be found in the 14 Amendment.  Here is an excerpt from our brief:


The Fourteenth Amendment to the United States Constitution requires that no “State deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV.

In the matter now before this Court, the Fifth Circuit, relying on Roe, held that Mississippi’s law interferes with an alleged Fourteenth Amendment liberty interest. The Fifth Circuit held that this interest precluded a state from placing limits on pre- viability abortion, even when those limits are based upon women’s health, the development of the preborn child, and the integrity of the medical profession. The Fifth Circuit’s reliance on Roe presupposes the existence of a Fourteenth Amendment liberty interest in abortion. If Roe was wrongly decided, though, that presupposition is incorrect. Because no liberty interest to abortion conferred by the Fourteenth Amendment exists, this Court must revisit Roe.


A. Historical Evidence Unequivocally Confirms the Constitution Does Not Require a Ban Against All State Regulation of Pre-viability Abortion.

This Court honors its duty of determining, rather than altering, constitutional meaning by understanding such meaning in its historical context. See, e.g., Marsh v. Chambers, 463 U.S. 783, 790 (1983) (explaining how historical evidence shows not just what the draftsmen intended a constitutional provision to mean, but also how they thought it applied). It is past time for this Court to revise Roe’s revisionist history.

There was no “tradition” of virtually unfettered abortion rights that the Fourteenth Amendment protected. Professor Joseph W. Dellapenna’s herculean research has conclusively demonstrated this truth.16 If the congressional record and the state civil and criminal codes of the time demonstrate anything about the Fourteenth Amendment’s meaning, it is that there was no intent to sanction abortion rights.

The debates of Congress and documents of the state legislatures that ratified the Fourteenth Amendment, provide “the most direct and unimpeachable indication of original purpose.” Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 7 (1955). Most of the discussion in the first session of the 39th Congress related to the subject matter of the Fourteenth Amendment. Cong. Globe, 39th Cong., 1st Sess. (1866). This discussion included governance of the South, readmission of Southern states, Union loyalty, issues concerning the newly freed Black race, and the distribution of powers between the states and the federal government. Id. The bulk of the session-long debate concerned the following measures: the Freedman’s Bureau Bill (vetoed by the president), the Civil Rights Act of 1866, (enacted over a veto), and the Fourteenth Amendment itself. Id. The first two of these measures were statutes, passed in response to the Black Codes. Id. Their premise was the protection of the newly freed black race. Id.; Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality at 46 (1976).

Not a single word uttered or written in the promulgation of the Fourteenth Amendment suggests that the Amendment included a liberty interest in the right to end the life of a pre-born child. Cong. Globe, 39th Cong., 1st Sess. (1866). The historical discussion of the authors of the Amendment never contemplated including such a provision. Id. Thus, from the extensive historical record of the authors’ intent and meaning of the Fourteenth Amendment, no credible evidence exists to validate Roe’s recognition of a right to abort a preborn child.

Similarly, the actions of the states that ratified the Amendment testify conclusively against the theory that they were thereby condoning abortion. For the Roe Court to reach the result it did, it “had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.” Roe, 410 U.S. at 174 (Rehnquist, C.J., dissenting). To illustrate, Connecticut proscribed abortion as early as 1821. Id. By the time adoption of the Fourteenth Amendment occurred in 1868, state and territorial legislatures had enacted at least 36 laws proscribing abortion. Id. at 174-175. Many other jurists and scholars have noted the plethora of state laws banning or severely restricting abortion at and even shortly after the time of the Amendment’s passage. By way of example:

In 1867, at the same time it ratified the Fourteenth Amendment, Ohio made abortion at any stage of pregnancy illegal. The same year, Illinois also ratified the Fourteenth Amendment and passed laws stiffening penalties for committing abortion. In 1869, in the same session that Florida ratified the Fourteenth Amendment, Florida also passed laws prohibiting abortion at any stage of gestation. Vermont and New York each passed laws that increased protection of unborn human beings after they ratified the Fourteenth Amendment. By 1875, sixteen of the twenty-eight ratifying states had in place tough laws against abortion at any stage of gestation, allowing for abortion only when the life of the mother was in real danger. Congress complemented the action of the various states by enacting the Comstock Laws in 1873 to prevent the dissemination of literature that promoted abortion. The legal protection of unborn human beings at the time the Fourteenth Amendment was ratified was consistent with the guarantee of equal protection and the right to life to every “person,” whether born or unborn.

Indeed, the most comprehensive scholarly work to date on the history of abortion shows that although the Roe Court understood its search for the Fourteenth Amendment’s meaning was circumscribed by its historical context, the Court failed to accurately discern that context:

Justice Harry Blackmun devoted fully half of the majority opinion in Roe to the history of abortion, using that history to inform his interpretation of the ‘values’ involved in the case and ultimately whether the statutory prohibition of abortion was constitutional. Blackmun relied heavily and uncritically on Means’ history, citing Means (and no other historian) no less than seven times. Like Means’ Blackmun’s conclusions were wrong on all points.

Such mishandling of history to reach a preferred objective is not unprecedented. Prior to the Fourteenth Amendment, the Dred Scott Court said that it was protecting a property interest. Dred Scott v. Sandford, 60 U.S. 393 (1857) (holding unconstitutional a Federal law prohibiting slavery in the federal territories). Eventually, everyone saw through that false front and realized that the Court was really stopping the state from protecting human life. This led to the passage of the Fourteenth Amendment, overturning the Court’s precedent, and finally founding personhood on our common human nature, rather than an accidental characteristic thereof, like skin color or ethnic origin.

The Roe Court said it was protecting a Fourteenth Amendment liberty interest. But it is clear that the Roe Court was actually, as in Dred Scott, stopping the state from protecting human life. Only this time it conditioned human life worthy of government protection on the arbitrary characteristic of a certain level of development rather than the color of one’s skin.

Not only did the Ratifiers have no intent to permit abortion, their primary purpose in adopting the Fourteenth Amendment was to correct the notion expressed in Dred Scott that some human beings were “less equal” than others. Yet Roe unfortunately reinstated that deadly doctrine. It held that less- developed human beings do not deserve the law’s protection.

If we are defined by our nature, “equality” is a meaningful fundamental principle. If we are defined by our development, it is not. It is only because each one of us is a human being by nature that we are all equally worthy of governmental protection. The development or maturation of human faculties does not make one human. If it did, young children would not be considered human, for many of their faculties do not mature for decades. This “constructivist” view of human nature is a great rationale for infanticide, but it is a horrible rationale for equality or any other human right.

This Court’s abortion decisions incorrectly declare the meaning of the Fourteenth Amendment to include a right to abortion. This Court should correct that error by acknowledging the invalidity of Roe’s historical analysis and jurisprudence. Correctly understood, the Fourteenth Amendment does not include a liberty interest to abort a pre-born child, including the younger unborn children covered by the state law here. The Mississippi statute at issue, therefore, does not violate the Fourteenth Amendment.

An accurate and honest understanding of the true meaning of the Fourteenth Amendment does not include a liberty interest to abort one’s preborn child. Roe’s understanding is wrong and should be corrected. 


About the Author

Prof. William Wagner
WFFC Distinguished Chair for Faith & Freedom at SAU
Professor Wagner holds the WFFC Distinguished Chair for Faith & Freedom at Spring Arbor University. He has a special interest in building and preserving environments where Christians may share the Good News of Jesus, free from persecution and oppression.

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