The Constitution and 14th Amendment expressly list protecting citizens as a core responsibility of Government. However, a fetus is not a citizen until it is born. The IRS defines as US person as someone that is born.

Could the federal government argue that laws by states to protect the life of a non-citizen (a fetus) are unconstitutional according to a strict interpretation?

This does NOT imply that murdering a non-citizen should be legal as murder is a general law. States currently want new explicit laws for a fetus because they cannot try abortion as murder as they may like.

EDIT: The answer by bdb confuses the action of protection with a mandate of protection. This argument is not that protecting non-US citizens is unconstitutional. It is that laws mandating protection of non-US citizens are unconstitutional.

  • Comments are not for extended discussion; this conversation has been moved to chat.
    – Dale M
    May 4, 2022 at 22:01

1 Answer 1


It may help to start by clearing up some false premises in the question/comments:

Then we need to clear up the main logical fallacy on which the question is built: Even if we accept that the Fourteenth Amendment requires government to protect citizens, and even if we accept that fetuses are not citizens, that doesn't mean states can't protect fetuses.

That argument -- "States may protect citizens, therefore states may not protect noncitizens" -- is a straightforward example of denying the antecedent and pretty obviously untenable once you stop to think about it. Houses aren't citizens. Elections aren't citizens. Can state laws protect them? Foreign exchange students aren't citizens; can state laws protect them? How about the Canadian ambassador?

The answer is quite well settled. The Tenth Amendment ensures state governments' right to enact virtually any laws to promote health, safety, and welfare, so long as those laws do not run afoul of some constitutional limit. Existing Supreme Court precedent makes clear that that authority -- known as the "police power" -- is virtually boundless. See, e.g., Bos. Beer Co. v. State of Massachusetts, 97 U.S. 25, 27 (1877); Lake Shore & M. S. R. Co. v. State of Ohio, 173 U.S. 285, 297 (1899); Sweet v. Rechel, 159 U.S. 380, 398–99 (1895).

While Roe v. Wade has long provided just such a constitutional limit against the exercise of that power to regulate abortion, it appears clear that protection is about to vanish. Without Roe, states looking to protect "potential life" will be free to enact virtually any law that would advance that goal.

  • Comments are not for extended discussion; this conversation has been moved to chat.
    – Dale M
    May 4, 2022 at 22:02

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