I saw a question on here asking about how hard it would be to pass a Federal law that prevents states from banning abortion, and the discussion was mostly about whether the federal government had the jurisdiction to create a law that supersedes laws by the states.

But I have a different question: suppose that a law was created and wasn't challenged by the courts in this way -- wouldn't such a law potentially be in contradiction with the the right to life mentioned in the Constitution?

The following sections of the Constitution mention right to life (as mentioned by user DavePhD):

The 5th amendment of the US constitution reads:

No person shall ... be deprived of life ... without due process of law

and the 14th amendment reads:

... nor shall any State deprive any person of life... without due process of law

I don't think its unreasonable that the supreme court gets to decide at what stage a human counts as a "life" -- and therefore they would be the ones to determine this. If a abortion-ban-preventing bill is passed, then wouldn't there be significant risk that if it ends up in the supreme court, we can get a ruling that abortion in any circumstance is forbidden?


5 Answers 5


The 5th amendment of the US constitution reads:

No person shall ... be deprived of life ... without due process of law

and the 14th amendment reads:

... nor shall any State deprive any person of life... without due process of law

In Roe v Wade the majority opinion expressly acknowledged:

The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment.

(emphasis added)

The majority in Roe v Wade then concluded:

the word "person," as used in the Fourteenth Amendment, does not include the unborn

In Dobbs, the majority instead stated:

Today’s decision therefore does not prevent the numerous States that readily allow abortion from continuing to readily allow abortion ... all of the States may evaluate the competing interests and decide how to address this consequential issue
There is ample evidence that the passage of these laws was instead spurred by a sincere belief that abortion kills a human being. Many judicial decisions from the late 19th and early 20th centuries made that point. [numerous citations]
One may disagree with this belief (and our decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests)
Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.

In conclusion, though it is recognized in Roe v Wade that if the unborn is considered a "person" then there is a "right to life", no justice has indicated in an opinion (including concurring or dissenting opinions) that "person" in the constitution includes the unborn.

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    It's a dumb point for the majority to concede. A right to life wouldn't be expected to include the right to live at the expense of someone else's bodily integrity against their wishes, nor do we usually understand it to. Imagine if somehow a man in Poland would die if I ever ate a potato (for example, if some madman threatent to murder them if I did or any other scenario) that would not eliminate my right to eat a potato. The whole point of having rights is that you can exercise them even if they harm others. Jun 29, 2022 at 23:46
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    @DavidSchwartz I think a better analogy would be conjoined twins. Does one have the right to kill the other, so as to live more freely? Can one ingest a substance that would effect the other, against the other's wishes?
    – DavePhD
    Jun 30, 2022 at 0:21
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    @DavePhD Perhaps better again would be to consider organ donations. In a case where a person will die without a lung transplant, and there is only one possible suitable donor, would the law compel that person to donate one of their lungs? I don't think many would support that - being forced to medically compromise your body so that another person can live is a confronting premise. Is abortion really so different?
    – Kayndarr
    Jun 30, 2022 at 1:31
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    @Kayndarr That might be a good analogy for pregnant women who have been raped, since they didn't consent to the creation of the situation. Hopefully they could take emergency contraceptives after the rape to prevent pregnancy, but they might not know about that or there could be other factors why they didn't have access to emergency contraceptives.
    – DavePhD
    Jun 30, 2022 at 13:42
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    @Kayndarr and people can be forced to take vaccines to benefit the health of others, the supreme court held that it doesn't violate the 14th amendment, despite risk of death. The court compared it to being forced into military service where one might die. law.cornell.edu/supremecourt/text/197/11
    – DavePhD
    Jun 30, 2022 at 16:17

I don't think its unreasonable that the supreme court gets to decide at what stage a human counts as a "life"

I do think it's unreasonable. In fact, it would be a prime example of what's generally referred to as "legislating from the bench".

The job of the courts is not to make the rules. It's to apply the rules to a particular situation, or (when necessary) point out why the rules don't apply, which can include being in violation of some "higher" rule, especially the Constitution.

But even when the legislature gets a rule wrong, it's not the court's job to unilaterally "fix" the problem by making or changing the rules. Their job ends at saying: "Sorry, this rule breaks the more fundamental rules." From there, it's up to the legislative branch to make better rules, not for the court to do legislation by making rules themselves.

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    @user253751 What decision do you refer to? I don't think the court did anything of that sort.
    – DRF
    Jun 30, 2022 at 11:50
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    @user253751 Oh that's the non-delegation doctrine .. So the answer is sort of. The court said that Congress is not allowed to give over a duty that belongs to it to the executive. So the executive can make rules, but the Congress must approve them. This might seem strange but it's not new or unreasonable. The point of the doctrine is to make sure the separation of powers continues to hold. Otherwise Congress could sign a law which let's the executive bypass the legislative process, which would make Congress obsolete.
    – DRF
    Jun 30, 2022 at 13:39
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    @user253751 It's worth noting that this is not something new that SCOTUS just invented now. The non-delegation doctrine goes way back and is derived from Article I of the constitution.
    – DRF
    Jun 30, 2022 at 13:42
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    While this answer is completely correct that the job of the courts is not to make the rules and that applying the law that has already been created is one of their jobs, it leaves out one of their other most important jobs (especially as appellate courts go): interpreting what the law was supposed to mean in the first place. This usually turns out to be the most important job of appellate courts like the SCOTUS. Determining what the definition of a word used in a law is supposed to be is actually one of their most common tasks, especially when its intended meaning wasn't originally clear.
    – reirab
    Jun 30, 2022 at 16:06
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    As far as congress delegating to the executive goes, the requirement isn't simply that the powers they delegate being relatively narrow. It's that they provide meaningful guidance about what they're delegating. If the powers are narrow, but poorly defined that may not stand, whereas broader powers that are clearly defined may be fine. For example, FEMA's powers are also extremely broad, but more clearly defined than the EPA's, so they're more likely to qualify as legitimate. Jun 30, 2022 at 16:34

There are several barriers, both procedural and substantive.

  1. If a fetus is a "person" for the purposes of the Fifth and Fourteenth Amendments, then it seems that a fetus should also be a "person" for the purposes of the Enumeration (Census) Clause, which is obviously absurd to do with the medical technology that was available in 1789:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

  1. The Fourteenth Amendment limits the powers of the states, not the federal government, so it cannot be relevant here (or at least, it cannot support the states' position against an act of the federal government).
  2. The Fifth Amendment is usually understood to confer rights on the private individual whose life is threatened by government action. That person must normally raise those rights on their own or through an attorney (e.g. with a Habeas petition). It is not unambiguously clear that the states are empowered, either procedurally or substantively, to invoke those rights on behalf of their citizens, nor that those rights are thereby transformed into substantive state powers which can be enforced in violation of federal law. In other words, even if we assume that a federal abortion ban ban would violate the Fifth Amendment, states may not have the procedural ability to do anything about it, because they may not have standing to invoke such rights. Arguments on the basis of federalism and state sovereignty, by contrast, are much more well-developed areas of law.
  • 17
    When people use phrases like "obviously absurd", I start to wonder whether they have actual logic to support their position, or are just hoping that they can get people to dismiss it out of hand, without stopping to think about it too much. Jun 30, 2022 at 3:53
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    The problem is that "birth" is only one thing you could measure. Just for example, I could easily claim that the proper measurement is that they became a person when their chance of survival to childhood reaches approximately 2 out of 3. In the 1700's, that was approximately when they were born. Nowadays, that's approximately as soon as you can detect pregnancy (or maybe even before). Of course, that's not the only alternative either. Jun 30, 2022 at 5:00
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    @JerryCoffin: And where did the ratio of 2:3 come from? Did you just pluck that from thin air? The default position is that the unborn are not included, because for over two centuries, they have not been included. If you want to advocate for another standard, it is not enough to simply note that it exists. You must argue for its superiority over the status quo.
    – Kevin
    Jun 30, 2022 at 5:46
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    Odds of survival (on average) aren't hard to measure at all. We've had quite good statistics on it going back for centuries. Jun 30, 2022 at 5:50
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    The answer is: you can dismiss what I have to say as not being substantive if you wish. But in doing so, you've shown that your answer is equally insubstantive. Jun 30, 2022 at 7:11

No. You are likely referring to the phrase "Life, Liberty, and the pursuit of Happiness" which is not found in the U.S. Constitution. It's in the Declaration of Independence, and while this document is important to the United States origins, it was not a document that had any legal bearing on the United States. The purpose of the "Declaration of Independence", was... well... to declare the independence of the 13 colonies from British rule and the reasons the founding fathers believed such dissolution of British Rule was necessary. To whit, the stated purpose and the bulk of the the text is an outline of the colonial grievances against King George III (most of these were actually grievances with Parliament, but George III had to give royal assent to legislation, so he approved the laws that had the Colonists so frustrated.).

According to the Declaration's author, Thomas Jefferson, the document didn't contain anything new and a bulk of the grievances used were found in the Virginia Constitution and Virginia Declaration of Rights, both of which were influential documents in the creation of the U.S. Constitution and are usually documents that are used by Contextualist and Originalists in the court to support their arguments.

The Declaration was ratified a year after the Revolutionary War started to justify the war. Prior to this, the "Patriots" war goals were not well understood, and there were some engaged in the fight that would have liked to remain British, and just wanted the grievances to be addressed. The Declaration held that, because of it's stated reasons, that ship had sailed.

The line "Life, Liberty, and the Pursuit of Happiness" is taken from Classical Liberal philosopy (though the Classical Liberal Philosophy of the day was more "Life, Liberty and the pursuit of property. Thomas Jefferson was a liberal... but he was also a hedonist and felt that the pursuit of happiness was a better goal... some people are happy with little to no material possessions after all!).

As a rule, SCOTUS rarely cites the Declaration because the Declaration has no force of law, and was merely a statement from the Continental Congress laying out to foreign powers and their own people the justification for the Revolutionary War.

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    I agree OP might have been confused, given their use of the word "unalienable" (which appears in the Declaration and not the Constitution), but the 14th Amendment does state "nor shall any State deprive any person of life, liberty, or property, without due process of law". Could you comment on how that clause relates to OP's question?
    – Seth R
    Jun 29, 2022 at 14:43
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    Refers to the state's ability to take someone's life, their freedom, or their property. While it is possible, it must be done via due process of law and not arbitrarily (i.e. go through courts.). This would not work for abortion because the State is a non-person legal entity.
    – hszmv
    Jun 29, 2022 at 15:13
  • Thanks for the answer, but yes I am really interested in what is said in the Constitution about life -- and shouldn't have used the word "unalienable rights". I updated the post to make it clear I'm talking about the constitution, which is where in the amendments it refers to life specifically. Jun 29, 2022 at 20:33
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    This answer appears to be obsoleted by clarifications to the OP. Jun 29, 2022 at 21:06

tl;dr: Following the Dobbs v. Jackson case, this is an open question.

The Equal Protection Clause

The rights to 'life' in the Constitution are generally limiting the government's ability to take life (i.e. to apply the death penalty,) not to private parties. The 5th Amendment required that due process be followed for the federal (national) to deprive anyone of life (or liberty or property.) The 14th Amendment then extended this requirement to the state governments.

The more relevant portion of the Constitution here is the Equal Protection Clause, which is also part of the 14th Amendment:

No state shall... deny to any person within its jurisdiction the equal protection of the laws.

Murder is, of course, a criminal offense in every state. A state murder statute that only criminalized killing certain classes of persons, but not others would be impermissible under the Equal Protection Clause. For example (and this is the particular example in mind when the 14th Amendment was created in the immediate aftermath of the U.S. Civil War,) it would be illegal for a state to criminalize killing a white person, but not a black person, or for it to prescribe a lesser penalty for killing a black person than a white person. This is presumably why the Supreme Court in Roe v. Wade's majority opinion (PDF) said,

The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment... If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment.

The Court did not explicitly say here which part of the Fourteenth Amendment they were referring to, but it seems reasonable to assume that they meant the Equal Protection Clause, since that's the only one requiring states to limit the action of private citizens.

So, the question then turns on what constitutes a 'person' for purposes of the Equal Protection Clause. As the Court noted in Roe,

The Constitution does not define "person" in so many words.

That is, the term 'person' is not specifically defined in the Constitution, so it's up to the courts to determine what it was supposed to mean when interpreting a portion of the Constitution. Roe, of course, ultimately held that,

[T]he word "person," as used in the Fourteenth Amendment, does not include the unborn.

The Dobbs v. Jackson decision (PDF) declined to determine a point at which a developing human fetus becomes a 'person' for purposes of the 14th Amendment, as no such determination was needed for the case at hand,

Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.

Whether the Court might adopt some definition of 'person' that includes any class of humans not yet born in a future case is something of an open question. Dobbs does seem to squarely foreclose fetal "viability" as being that point, as that would create a vague rule that could even vary from one location to another due to difference in medical care available, but it does not appear to foreclose the question ever being decided differently from Roe's determination.

Other Possible Challenges

Aside from a potential fetal right to equal protection of life, it should be noted that a federal ban on state abortion statutes could also face legal challenges on other grounds. Exactly what those grounds might be would depend on the exact wording and reach of said hypothetical law. One of the most likely such grounds would be a ruling that the federal government simply does not have any Constitutionally-enumerated power to enact such a ban. According to the 10th Amendment,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

In other words, if the Constitution does not delegate some power to the federal government or prohibit states from exercising that power, then any federal law prohibiting states from exercising that power would be invalid.

As such, any federal law attempting to prevent states from banning abortions would have to be enacted on the grounds of some power (or set of powers) granted to the federal government by the Constitution. The Commerce Clause would probably be the most likely candidate for a power under which Congress could make such a law, though whether it would be upheld on that grounds alone is an open question and would depend on the exact crafting of the law.

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