Does the Constitution Protect the Right to Life of Unborn Babies?

This summer has seen the kickoff of the celebration of our nation’s 250th birthday, which will culminate on July 4, 2026. With the planning already in the works for almost a decade, the official website calls this “an opportunity to pause and reflect on our nation’s past … and look ahead toward the future we want to create for the next generation and beyond.”

This opportunity to reflect rightly includes renewing our understanding of our founding documents and their relationship to public policy.

Notably, America’s birthday is not the anniversary of the Constitution but rather of the Declaration of Independence. Officially adopted on July 4, 1776, it precedes by over a decade the signing of the Constitution in 1787 — an event with its own annual commemoration, Sept. 17, Constitution Day.

Why the gap?

The Founders knew the principles on which they stood and all too well why they had to declare independence from a tyrannical king.

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Setting up the mechanism by which a new government would implement those principles and protect them from future tyranny was a far more painstaking task.

All elected and appointed officials at the federal and state levels swear an oath to uphold the Constitution. The oath of citizenship likewise professes loyalty to that same document.

However, the principles it implements could have been declared before “the supreme law of the land” was written precisely because those principles transcend human law; they do not flow from anything human beings create but from God.

The Declaration mentions the right to life as the first of the unalienable rights. The Constitution, in the Fifth and 14th Amendments, notes that no person may be deprived of life without due process of law.

As James Wilson, who signed the Declaration and Constitution, wrote: “With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. … The law throws its shield around the person of every individual, from the highest to the lowest, and from the earliest to the latest period of existence.”

Moreover, when the 14th Amendment was ratified in 1868, states were strengthening their laws protecting children in the womb from abortion. The science of embryology was growing rapidly, revealing more about the unborn child than we had ever known. Common law already saw abortion as a crime. Statutory law was catching up to science.

Ironically, it’s been in the past half-century, when we’ve learned more about the unborn than at any other time in human history, that we have provided this group with the least protection.

Yet science does keep shaping public policy. Twenty years ago, for instance, South Dakota enacted a law requiring abortionists to inform their patients that “the abortion will terminate the life of a whole, separate, unique, living human being.” When Planned Parenthood challenged that law as an imposition of religious belief, the 8th Circuit, in Planned Parenthood v. Rounds, disagreed, pointing out that the statement was a matter of scientific fact, not ideology.

Today, with new apps like See Baby Grow and brain and heart surgeries being performed on the unborn, dismissing their humanity is tantamount to declaring that Earth is flat.

So that brings us back to America’s upcoming 250th birthday. How are we to understand the right to life in our founding documents, and how should it shape our laws and court decisions?

In Dobbs (2022), the Supreme Court abandoned the notion that the Constitution prohibits protecting the unborn. Subsequently, more than half the states have increased their protections for these children.

An increasing number of pro-life lawyers are actively engaged in discussions about whether our Constitution, in fact, not only permits but also requires their protection.

We all know what it means to have the right to life. Who would argue that his or her life should be protected in Mississippi but not in New York, or that the protection due to our lives should start once we reach the age of 18?

This is not the kind of right that is subject to limitations of time and place.

Indeed, if we say it is, one can argue that we’ve adopted a different form of government than our founding documents outline.

Since when should the mechanisms of a government founded on the equality of all people lead some to lose the equal protection of their lives? How is that not a new form of tyranny, with the state claiming for itself the right to remove protection from the most vulnerable?

Indeed, if our Constitution is designed to implement the principles of the Declaration, it is reasonable to assert that it requires equal protection of human life not because a court or a law designates it but precisely because it is human, a gift given by the Creator.

That‘s a great birthday gift to our nation.

LifeNews.com Note:  Frank Pavone is national director of Priests for Life and the national pastoral director of Rachel’s Vineyard Ministries and the Silent No More Awareness Campaign.

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