Jurisprudence

Congress Has Never Considered Fetuses Persons Within the Meaning of the 14th Amendment

Alito in a tux looking up as he sits at a table at a fancy dinner
Justice Samuel Alito at a Federalist Society event in Washington in 2007. Saul Loeb/Getty Images

Last month, in response to the leak of Justice Samuel Alito’s draft opinon ending Roe v. Wade, the Louisiana legislature briefly considered a bill that would define a fetus as a person for the purpose of the state’s homicide law. While the legislation was quickly tabled, the notion of so-called personhood laws is likely to become more realistic if Alito’s draft opinion ending the right to an abortion becomes Supreme Court precedent in the weeks ahead. Indeed, in a discussion about fetal “quickening” on Page 16 of the draft opinion, Alito cites a brief by John M. Finnis and Robert P. George that argues that fetuses are legal people. Finnis and George are clearly wrong, though. This issue has already been considered and decided by the Reconstruction-era Congress. They definitively determined that fetuses do not count as “persons” for purposes of the 14th Amendment, as Finnis and George argue.

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In that brief filed in support of the Mississippi abortion ban at issue in Dobbs v. Jackson Women’s Health Organization, Finnis and George assert:

The original public legal meaning of “persons” encompassed all human beings. On this, the legal meaning fixed by treatises and cases was confirmed by rapid mid-1800s expansions of prenatal protections. … the inclusion of children in utero could not have been blocked except by wording (easily available, but neither proposed nor adopted) such as “any person wherever born.”

From this they conclude that the history of the original public meaning of the 14th Amendment

proves prohibitions of elective abortions [are] constitutionally obligatory because unborn children are persons within the original public meaning of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.

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As I read the congressional debates on Section 1 of the 14th Amendment, I found no evidence to support a claim that anyone in Congress understood that unborn children were protected by these clauses. In fact, the opposite is true.

Many of us are familiar with the great clauses of 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.

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Many fewer of us are familiar with Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state

Section 2 revised the basis for the apportionment of representatives among the states, an issue that Congress had addressed every decade since the first census was taken in 1790 and continued to address following ratification of the 14th Amendment.

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Once again, I found no evidence of anyone in Congress even considering whether any of the unborn are persons within the scope of Section 2. That issue, however, would surface as Congress considered the second census following ratification of the 14th Amendment.

Congress never considered counting of the unborn in the first eight censuses (1790–1860). Section 5 of the Census Act of 1790 called for persons to be counted at their “usual place of abode” with a transient counted “where he or she shall be” on census day. The only age distinction mandated concerned enrollment in the militia. The scheme of counting persons at their usual place of abode and transients wherever they were on census day continued through the Census Act of 1850, the last general census act before the Civil War. Section 10 of that act added provisions mandating the recording of “the age and place of birth of each” person counted.

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However, the 41st Congress, in session between 1869 and 1871, recognized that the second sentence of Section 2 required the census to count the number of adult male citizens whose right to vote had been denied or abridged. Throughout these debates, no one ever suggested that the adoption of Section 2 required the census to count the unborn. Indeed, the closest the Congress came to the issue was a proposal (Question 5) that the census record the age in months of any child under a year. The Senate ultimately tabled this bill and no such provision was enacted into law. The provisions of the 1850 Census Act (not made obsolete by the 13th Amendment) remained in place, including the provision that every person’s place of birth be recorded.

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Superintendent of the Census Francis Walker introduced the month of birth question “experimentally” in the schedule for the 1870 census. In his report he wrote:

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The direct result of the effort to obtain the month of birth for all children born within the census year, has been to secure statistics on this subject which are of a high degree of value for nine months of the year, and exhibit with great accuracy the varying influence of the seasons upon human reproduction in each section of the Union.

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Walker noted another consequence of recording the month of birth of newborns when he testified during 1878 Senate committee hearings held in anticipation of the 1880 census. The Census Act of 1870 gave enumerators from June 1 until Sept. 10 to complete their work. As a result of recording the month of birth of newborns (emphasis added):

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it was found out that the enumerators had put tens of thousands of children into the census who were born after the census date—the 1st of June—and hence were, by law, to be excluded from the enumeration. These unfortunate innocents were known familiarly in the office as “June bugs,” and they were exterminated with worse than Herodian malignity by my young gentlemen.

No committee member questioned Walker’s implementation decision to exclude the “June bugs” from the basis of apportionment. Nor did anyone question Walker’s implementation decision when Congress debated what would become the Census Act of 1879. To the contrary, Democratic New York Rep. Samuel Sullivan “Sunset” Cox put Walker’s “June bug” comment to comic effect.

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The Federal census is full of whimsical returns; as, for instance, where children born in June, 1870, as being within one year of age. The enumerator forgot that […] June, 1869, was the June to be taken.

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The 1879 Census Act did not mandate recording the month of birth of newborns. Section 7 of the 1899 Census Act did (“and, if born within the census year, the date of birth”). Once again, there was no debate in Congress about whether the unborn should be included in the basis of apportionment.

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The month/date of birth question for infants introduced in 1899 remained in the census questionnaire through 1950. In 1960, it was replaced by the more general inquiry asking for the date of birth of everyone enumerated. It remains on the census questionnaire to this day.

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In a 2015 dissent, Chief Justice John Roberts wrote:

When seeking to discern the meaning of a word in the Constitution, there is no better dictionary than the rest of the Constitution itself.

The evidence presented here demonstrates that Congress has never considered including any of the newborn as persons counted by the census. If the chief justice’s rule of interpretation is correct, then the word person in the due process clause and the equal protection clause—a mere 43 and 28 words away—has the same meaning as it has in Section 2. I leave it to others to contemplate the implications of the possibility of the same word having different meanings when appearing in such close proximity.

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