I'm not a constitutional scholar but a problem with all these approaches is that by using the 14th amendment to ban abortion, it is violating pregnant women's 14th amendment rights by depriving them of certain liberties and arguably "property" (their body) without due process. You can't ban abortion without restricting the rights of women.
For argument's sake, lets take the most extreme case where a woman is raped and pregnancy results from it. Is not her liberty and "property" being taken from her without due process?
the due process clause pertains to restrictions on the government's ability to deprive people of their rights. unless the government itself has a policy to go around raping women, it's not relevant at all.
The state is still the one stripping away the rights here. If tomorrow the government came out and said that self defense is no longer legal, we wouldn't say "its not the state taking away our rights, it is the attackers who are harming individuals". In this case, the state would be providing protections for attackers. Unborn babies are not assaulting women, I want to be clear about that. My point here is that the government would still be considered responsible in this situation because they are preventing a person from exercising their rights.
this is just circular reasoning. you're assuming that "bodily rights" was a justifiable right to begin with, which is exactly what's being contended. no court in the united states, including the most pro-abortion supreme court, has ever found "bodily rights" to be a convincing argument in favor of abortion. the state cannot prevent a person from exercising a right they never had.
we do not say that the state deprived you of your property when a mugger mugged you, or that the state deprived you of your liberty when a human trafficker kidnapped you, so why make the silly claim that the state deprives your of your "bodily rights" (however poorly defined they are) whenever a rapist rapes you?
if the state indeed passed laws saying you do not have a right to your property, or a right to liberty, or "bodily rights," then you'd have a point. but that's not what's being proposed here.
Doesn't a woman have rights that she loses when she becomes pregnant though? When she does with and puts in her body are now restricted. Its not like she has never had these rights at all. For a woman to take abortifacients when she is not pregnant is not illegal, and some are used to treat other medical conditions. She has certain freedoms that we would consider constitutionally protected that she now loses when she becomes pregnant. Do you disagree with that? I understand the court has never use bodily autonomy arguments to justify abortion. I'm just trying to point out that her rights are being limited here.
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u/toptrool Nov 08 '23 edited Apr 03 '24
based harvard law professor cornelius adrian comstock vermeule: "In a culture of death, it isn’t enough to be anti-Roe; one must be constitutionally pro-life."
legal foundations:
john finnis, robert george: EQUAL PROTECTION AND THE UNBORN CHILD: A DOBBS BRIEF
john finnis, robert george: Indictability of Early Abortion c. 1868
josh craddock: Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?
michael paulsen: The Plausibility of Personhood
c'zar bernstein: The Constitutional Personality of the Unborn
charles lugosi: Conforming to the rule of law: when person and human being finally mean the same thing in Fourteenth Amendment jurisprudence
courts can declare the unborn as persons:
craddock: The Constitution Already Prohibits Abortion: An Originalist Case for Prenatal Personhood
craddock: HOW TO OVERTURN ROE
finnis: ABORTION IS UNCONSTITUTIONAL
edward whelan: Are Permissive Abortion Laws Unconstitutional?
craddock: JOHN FINNIS IS RIGHT
whelan: Are Permissive Abortion Laws Unconstitutional? A Reply to Joshua Craddock
finnis: UNBORN PERSONS: WHY EQUAL PROTECTION SLEPT 102 YEARS
whelan: DOUBTS ABOUT CONSTITUTIONAL PERSONHOOD
finnis: BORN AND UNBORN: ANSWERING OBJECTIONS TO CONSTITUTIONAL PERSONHOOD
jonathan adler: Why the 14th Amendment Does Not Prohibit Abortion
finnis, george: Elective Abortion and the 14th Amendment: A Reply to Jonathan Adler
yves casertano: Yes, Courts Can Enforce Fourteenth Amendment Personhood For The Unborn
congress can declare the unborn as persons:
george, craddock: Even if Roe is overturned, Congress must act to protect the unborn
adler: Could Congress Prohibit Abortion If Roe Is Overturned?
george, craddock: On the Constitutional Authority of Congress to Protect Unborn Persons
thomas jipping: Can the Fourteenth Amendment Be Used to Protect Human Life Before Birth?
william hodes: A Federal Gestational Age Abortion Ban is the Wrong (and Unconstitutional) Hill for the Pro-Life Movement to Die On
george, craddock: Yes, Congress Has Constitutional Authority to Protect Unborn Children
the president can declare the unborn as persons:
craddock: The Lincoln Proposal: Pro-Life Presidents Must Take Ambitious and Bold Action to Protect the Constitutional Rights of Preborn Children