Since 1973, more than 60 million American children have been killed by the violence of abortion. The horror of approximately 2,000 daily killings stems from the United States Supreme Court’s constitutional errors in Roe v. Wade. The Court made two fundamental errors in Roe: first, in its refusal to read the Fourteenth Amendment’s guarantees of equal protection and due process to extend to preborn persons; and second, in its erroneous conclusion that “the right to privacy extends to abortion.”
Fortunately, as scholars ranging from Professor Robert P. George to Professor Mark Tushnet have observed, the judiciary is not the sole interpreter of the Constitution. Rather, the legislature and executive share in this responsibility. Since Planned Parenthood v. Casey, the judicial and legislative branches, as well as the states, have engaged in a kind of trench warfare over the logic and scope of Roe’s secondary error. The Lincoln Proposal offers a bold vision to repair our constitutional order by turning the executive’s attention to the task of correcting Roe’s first and foundational error.
The Constitution vests the president with “[t]he executive power” to take decisive and conclusive action within the domain of the executive branch, including its subsidiary departments and agencies. Article II, Section 1 of the Constitution requires the president to swear to “preserve, protect, and defend the Constitution of the United States.” Additionally, Article II, Section 3 directs the president to “take Care that the Laws be faithfully executed.” This provision imposes a twofold duty: first, an independent responsibility to interpret the Constitution and the laws of the United States, and then second, to faithfully execute them. The president’s interpretive role is implicit in and antecedent to the power of execution.
Relying on his constitutionally prescribed oath and his Take Care Clause interpretive authority, the president should fulfill his duty to faithfully execute the guarantees of the Fourteenth Amendment to the Constitution by issuing an executive order recognizing preborn persons as constitutional “persons” entitled to due process and equal protection of the laws. Such an executive order would set a precedent that all future pro-life presidents would be expected to follow and build upon.
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The Fourteenth Amendment’s Recognition of Preborn Personhood
The Fourteenth Amendment was ratified to ensure that no human being would be denied fundamental rights guaranteed by the Constitution. Section 1 uses two terms—“citizens” and “persons”—that impart distinctive rights. The amendment begins by guaranteeing that “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.” Only persons born or naturalized within the jurisdiction of the United States are granted the “privileges or immunities of citizens of the United States.” But the amendment goes on to provide protections for other “persons”—regardless of citizenship—and it does not restrict those protections to “persons born.” It provides that no state may “deprive any person of life, liberty, or property, without due process of law” or deny any person “the equal protection of the laws.”
Science instructs unequivocally that the preborn are members of the human species from the moment of conception, or from that instant that Dr. Maureen Condic of the U.S. National Science Board precisely describes as the moment of “sperm-egg fusion”. And at the time of the Fourteenth Amendment’s adoption, the term “person” applied to every member of the human family, including the preborn. Dictionaries of common and legal usage at the time of the Fourteenth Amendment’s adoption treated the word “person” as interchangeable with “human being.” The 1864 edition of Noah Webster’s Dictionary of the English Language defined the term person as relating “especially [to] a living human being; a man, woman, or child.” The New Law Dictionary and Glossary defined “person” as “A human being, considered as the subject of rights, as distinguished from a thing.” Likewise, for William Blackstone, there was no distinction between biological human life and legal personhood.
Abortion within the Anglo-American common-law tradition was prohibited as soon as prenatal life could be detected. By the time the Fourteenth Amendment was ratified in 1868, the states widely recognized preborn children as “persons.” Twenty-three states and six territories referred to the preborn human being as a “child” in their anti-abortion statutes. Twenty-eight listed abortion among statutory “offenses against the person” or a functionally equivalent classification. In a particularly striking example, the same Ohio legislature that ratified the Fourteenth Amendment in January 1867 passed legislation criminalizing abortion at all stages and declaring that abortion “at any stage of existence” is “child-murder.”
“The child in the womb,” observed Professor Charles Rice in his 1971 Americans United for Life amicus brief in Roe, “is a person within the meaning of the Equal Protection Clause of the Fourteenth Amendment.” Although the Court at that time was bent on ignoring this basic reality, it has since accepted the logic and precedent of equal protection for successive classes of persons. Even when the parameters of equal protection and due process are tailored to their subjects, such as the more circumscribed rights held by children and non-citizen aliens, the core of those guarantees is recognized in some way for all members of the human family within the borders of the United States—except for our youngest members.
An executive order recognizing the constitutional rights of the preborn would therefore rest on a firm legal basis.
The President’s Independent Duty to Interpret the Constitution
In Roe, the Supreme Court discovered a constitutional “right” to abortion that exists nowhere in the text and concluded that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” In so doing, the Court overturned laws protecting human life in all fifty states and nullified the will of an American democratic majority that recognized preborn human children as worthy of legal protection.
How could the president issue an executive order contrary to the interpretation of the Supreme Court? Actually, such a move would be supported by strong precedents. Several of America’s greatest presidents—including Thomas Jefferson, Andrew Jackson, and Abraham Lincoln—have relied on the presidential oath and Take Care Clauses to assert the executive’s independent duty to interpret and execute the Constitution, even in the face of contrary judicial decisions.
Despite several judicial decisions upholding the constitutionality of the Alien and Sedition Acts, President Jefferson exercised his own constitutional judgment to “affirm that [sedition] act to be no law, because in opposition to the constitution; and I shall treat it as a nullity, wherever it comes in the way of my functions.” Jefferson wrote that treating federal “judges as the ultimate arbiters of all constitutional questions” was “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” Instead, Jefferson believed that “each of the three departments has equally the right to decide for itself what is its duty under the constitution, without any regard to what the others may have decided for themselves under a similar question.”
President Jackson adopted the same posture in his veto of the Second National Bank in 1832. He argued that the Supreme Court “ought not to control the co-ordinate authorities of this Government.” Instead, “Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.” Rather than blindly deferring to every pronouncement of Congress or the Supreme Court, Jackson thought that the executive, when discharging his constitutionally vested responsibilities, should only grant “such influence as the force of their reasoning may deserve.”
Perhaps the most famous example of all is Lincoln’s response to Dred Scott v. Sandford. As a Senate candidate, Lincoln acknowledged the Court’s decision as binding on the parties, but denied that the opinion possessed precedential effect. Once elected President, Lincoln reaffirmed his commitment to resisting Dred Scott in his first inaugural address, warning that
if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
In another context, Lincoln’s attorney general drafted a lengthy legal opinion arguing that “the president and the judiciary are co-ordinate departments of government, and the one not subordinate to the other.” Thus, the executive must be able “to act out its own granted powers, without any ordained or legal superior possessing the power to revise and reverse its action.” The Lincoln administration put its theory into practice, disregarding Dred Scott’s central argument against black citizenship and issuing passports and patents to black Americans—acts squarely within his purview as the chief executive. Lincoln also exercised authority over the federal territories and the District of Columbia by signing bills that abolished slavery in those jurisdictions, despite Dred Scott’s assertion that the territories were constitutionally required to permit slavery. Most famously, Lincoln’s Emancipation Proclamation, issued on January 1, 1863 in the midst of the Civil War, declared “that all persons held as slaves” within the warring osuthern states “are, and henceforward shall be free.”
These great American presidents provide an example for the president to follow, irrespective of the Supreme Court’s position in Roe. The president may exercise his independent constitutional authority to interpret the Fourteenth Amendment’s safeguards of due process and equal protection as extending to all human beings—preborn and born alike.
A Human Life Executive Order
The groundwork to extend the examples of Jefferson, Jackson, and Lincoln has already been laid. President Ronald Reagan recognized the responsibility of the coordinate branches to protect preborn persons, encouraging Congress to pass legislation “to protect the life of each person before birth” despite the Supreme Court’s determination in Roe. Reagan therefore undertook to “proclaim and declare the unalienable personhood of every American, from the moment of conception until natural death.” Invoking his solemn constitutional duty, President Reagan promised to “take care that the Constitution and laws of the United States are faithfully executed for the protection of America’s unborn children.”
An executive order from the president could give legal effect to the proclamation first announced by President Reagan over three decades ago. Such an order would constitute a binding and authoritative interpretation of the Constitution within the executive branch, including its constitutive departments and agencies. The president could direct departments and agencies to examine their regulations and programs to ensure they align with the president’s executive order, and to initiate rulemaking or issue guidance bringing those regulations and programs into compliance with the president’s interpretation as necessary.
Here are a few concrete examples of how an executive order could be implemented. The president could direct:
- The Department of Justice to oppose judicial injunctions intended to restrict and interfere with the ability of congressional and state lawmakers to codify protections for human life;
- The Department of Justice and its Civil Rights Division to investigate state or municipal laws or policies that deprive preborn persons of due process of law or the equal protection of the laws;
- The Department of Commerce and Census Bureau to enumerate children born and not yet born in the decennial census, consistent with Section 2 of the Fourteenth Amendment, which requires apportionment “counting the whole number of persons in each state”;
- The Department of Defense to establish National Safe Havens at all military and recruiting stations for expectant mothers facing abuse or coercion, and for emergency housing, financial, and educational aid for those seeking alternatives to abortion, particularly in jurisdictions hostile to protections for human life;
- The State Department to ensure that preborn children are not denied equal protection in multilateral instruments at the United Nations and other international treaty bodies, either by policy or by subsidization with U.S. taxpayer funds;
- The Department of Health and Human Services to condition federal healthcare funding on state defunding of abortion businesses and redirecting such funds to life-affirming pregnancy resource centers and direct aid alternatives;
- The Food and Drug Administration to suspend its approvals of chemical abortifacients such as RU-486 (Mifeprex) and similar generic drugs, and to take affirmative steps to deny the importation of abortifacients from outside the borders of the United States;
- The Department of Education to withhold federal funds from school programs that advocate abortion or the use of abortifacient drugs, and to promote educational programs that accurately teach the biological fact that each human life begins at sperm-egg fusion.
But this is just the beginning: such an executive order provides a rationale for the federal government to protect preborn children in every state. Americans need not accept an interminable status quo of indifference toward the rights of the child, due either to the timidity of our political elite or to the presumption of our judiciary class. An executive order would be the culmination of earlier presidential actions to guarantee constitutional protections to all human beings, following in the footsteps of President Lincoln in the aftermath of Dred Scott.
No doubt such an order would be the greatest pro-life accomplishment in decades, introducing the logic of abolition to America’s body politic. And indeed, such an order would vindicate that most precious unalienable right named in the Declaration of Independence: the right to life.