While most eyes this week were on the carnage in Las Vegas, the catastrophe in Puerto Rico, or the dangerous provocations towards Pyongyang and Tehran, the Trump administration was hard at work deconstructing the 14th Amendment to the United States Constitution. While that bulwark of American civil rights promises “due process of law” and “equal protection of the laws” to “all persons born or naturalized in the United States,” Donald Trump has declared that some persons are more equal than others.
For starters, two years after Justice Kennedy ruled in Obergefell v. Hodges that the constitutionally-protected right to marry extends to LGBTQ Americans, Attorney General Jeff Sessions began turning back the clock at the Justice Department. DOJ’s “Federal Law Protections for Religious Liberty” signaled that the faith-based sensitivities of some religious people should literally trump the marriage rights, workplace protections, and other 14th Amendment guarantees for gay and lesbian Americans. By signing an executive order allowing any business to deny contraceptive coverage to its female employees, Donald Trump codified that when it comes to health care, women are left out of the 14th’s American freedoms, too.
But this week, Trump’s Department of Health and Human Services proposed extending the 14th Amendment to a new group. And as Dr. Jen Gunter pointed out, these would-be beneficiaries aren’t persons at all.
In the draft of its “Strategic Plan, FY2018 - FY2022” now under review, HHS has unilaterally adopted what might be called the “Fetal Fourteenth.”
HHS accomplishes its mission through programs and initiatives that cover a wide spectrum of activities, serving and protecting Americans at every stage of life, beginning at conception. Eleven operating divisions, including eight agencies in the U.S. Public Health Service and three human services agencies, administer HHS’s programs. While HHS is a domestic agency working to protect and promote the health and well-being of the American people, the interconnectedness of our world requires that HHS engage globally to fulfill its mission. In addition, staff divisions provide leadership, direction, and policy guidance to the Department. [Emphasis added.]
If this seems like an unprecedented, unwarranted, and unconstitutional redefinition of the 14th Amendment by the president of the United States, that’s because it is. But the strategy of declaring fetal personhood by fiat is nothing new under the conservative sun. Republican platforms and politicians have been proposing it for years.
In the run-up to the 2016 GOP primaries, Florida Sen. Marco Rubio offered a novel—and comically wrong—interpretation of the U.S. Constitution. It was one which could be used to, among other things, prohibit marriage equality and invent antenatal rights.
"We are clearly called in the Bible to adhere to our civil authorities. But that conflicts with also our requirement to adhere to God's rules. So when those two come in conflict, God's rules always win."
Only, that is, if you rig the United States Constitution so that the Fifth and 14th Amendments don't apply to LGBT Americans and women, but do apply to fetuses.
A variant of this “God’s rules” gambit has been part and parcel of the Republican platform for two decades. Despite the fact neither John McCain nor Mitt Romney supported banning abortion in all cases including rape and incest, the GOP platform demanded a complete prohibition even when a woman's life was at risk. That's why the 2012 GOP platform, like those before it, called for a so-called "Human Life Amendment:"
Faithful to the "self-evident" truths enshrined in the Declaration of Independence, we assert the sanctity of human life and affirm that the unborn child has a fundamental individual right to life which cannot be infringed. We support a human life amendment to the Constitution and endorse legislation to make clear that the Fourteenth Amendment's protections apply to unborn children.
But by 2016, the Republican landscape had changed again. Despite, or perhaps precisely because of, the failure of so-called "personhood" initiatives in Colorado, Mississippi, and South Dakota, many GOP candidates insisted that the Constitution already provides embryonic due process and equal protection guarantees. Viewers of the Aug. 7, 2015 GOP debate bore witness to the immaculate conception of this "Fetal Fourteenth." After then Fox News host Megyn Kelly informed the candidates that New York Cardinal Timothy Dolan had called rape and incest exemptions "preposterous" and said "they discriminate against an entire class of human beings," Marco Rubio offered this preposterous constitutional theory:
"I've advocated passing a law that says that all human life, at every stage of its development, is worthy of protection—in fact, I believe that law already exists. It's called the Constitution of the United States."
While Rubio wouldn't offer specifics, former Baptist minister, Arkansas governor, and Fox News regular Mike Huckabee did. Huckabee, who never shies away from comparing abortion to slavery and the Holocaust, simply ignored 42 years of Supreme Court precedent since Roe v. Wade:
"I think the next president ought to invoke the Fifth, and Fourteenth Amendments to the constitution now that we clearly know that that baby inside the mother's womb is a person at the moment of conception.
The reason we know that it is is because of the DNA schedule that we now have clear scientific evidence on. And, this notion that we just continue to ignore the personhood of the individual is a violation of that unborn child's Fifth and 14th Amendment rights for due process and equal protection under the law."
Leave aside for the moment would-have-been President Huckabee's confusion over the separation of powers or his delusions about deploying troops to round up abortion providers. Under Huckabee's theory, fetus-bearing women would be eligible for a host of other protections and benefits, perhaps including health coverage, welfare payments, and housing assistance. But as Al Franken put it years ago, for conservatives "life begins at conception and ends at birth." And while there are roughly 4 million live births and 1 million abortions annually in the United States, an estimated 15 to 20 percent (and potentially a much larger share) of pregnancies end in miscarriage. To put it in terms Gov. Huckabee and Sen. Rubio would understand, apparently the Supreme Being—and not the Supreme Court—is the bigger threat to fetal 14th Amendment rights.
Not all of the remaining Republican contenders headed to Cleveland in the summer of 2016 agreed with Rubio and Huckabee. Donald Trump had rapidly mutated from being pro-choice, to demanding "some form of punishment" for women obtaining abortions, to lamenting that "the laws are set now on abortion and that's the way they're going to remain until they're changed." John Kasich says he believes in allowing abortions in cases of rape and incest, but nevertheless signed a raft of TRAP (Targeted Regulation of Abortion Providers) bills which have shuttered most of the clinics in Ohio. Ted Cruz has had an evolution as well, supporting the GOP's Human Life Amendment and personhood measures in Georgia and South Carolina while also declaring that he, like Huckabee and Rubio, now believes the 14th Amendment already protects embryos, zygotes, and fetuses. As he explained to Princeton University professor Robert George in December 2015:
GEORGE: Now, do you believe that unborn babies are persons within the meaning of the Equal Protection Clause of the Fourteenth Amendment, and if so will you call on Congress to use its authority under the Fourteenth Amendment, pursuant to Section 5, to protect the unborn? Or do you take the view, as some do, that we can't do that until Roe v. Wade is overturned, either by the court itself or by constitutional amendment? Where do you stand on that?
CRUZ: Listen, absolutely yes. I think the first obligation of everyone in public office is to protect life. Life is foundational. In fact, as you look at the Declaration, that ordering of unalienable rights, life, liberty, and the pursuit of happiness, I think it's a very deliberate ordering. Without life there is no liberty, and without liberty there is no pursuit of happiness. That each builds upon the other, and I very much agree with the Pope's longstanding, and prior popes before him, longstanding call to protect every human life from the moment of conception to the moment of natural death.
And it is his belief in the Fetal Fourteenth that enables Sen. Cruz to demand that women, as Megan Kelly of Fox News put it, "go through unspeakable trauma to carry her rapist's baby for nine months."
"Well, listen, let's talk - you know, when it comes to rape, I've spent a lot of years in law enforcement. I was the solicitor general in the state of Texas and I have handled cases with horrific cases of rape, of people who committed child rape, people - I went before the U.S. Supreme Court and argued in defense of state laws imposing capital punishment for the very worst child rapists. And when it comes to rape, rape is a horrific crime against the humanity of a person and needs to be punished and punished severely but at the same time, as horrible as that crime is, I don't believe it's the child's fault. And we weep at the crime. We want to do everything we can to prevent the crime on the front end and to punish the criminal, but I don't believe it makes sense to blame the child."
Ultimately, the 2016 GOP platform stopped just short of endorsing the Fetal Fourteenth as today’s law of the land:
The Constitution’s guarantee that no one can “be deprived of life, liberty or property” deliberately echoes the Declaration of Independence’s proclamation that “all” are “endowed by their Creator” with the inalienable right to life. Accordingly, we assert the sanctity of human life and affirm that the unborn child has a fundamental right to life which cannot be infringed. We support a human life amendment to the Constitution and legislation to make clear that the Fourteenth Amendment’s protections apply to children before birth.
Now, the Supreme Court has never said any such thing. In the 1992 case of Planned Parenthood v. Casey, Justice Sandra Day O’Connor wrote that the state has "legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child." But she nevertheless struck down the Pennsylvania law in question, proclaiming it an example in which “state regulation imposes an undue burden on a woman's ability to make this decision” and “the power of the State reach[es] into the heart of the liberty protected by the Due Process Clause.” And for her part, in 2014 Justice Ruth Bader Ginsburg acknowledged—and lamented—that Roe v. Wade was decided on privacy instead of equal protection grounds:
"Roe isn't really about the woman's choice, is it?" the Clinton-appointed justice said last May at the University of Chicago Law School. "It's about the doctor's freedom to practice ... it wasn't woman-centered, it was physician-centered."
Her pique is that the Roe opinion, written by Justice Harry Blackmun, relies on a "right of privacy" under the 4th Amendment and emphasizes the right of physicians to practice medicine as they see fit. She prefers that abortion rights be recognized under the equal protection clause of the 14th Amendment, based on the view that having a child should be a woman's choice.
Now, the Trump administration is suggesting that the Constitution doesn’t protect that choice at all. Instead, the president and his unfailingly loyal religious right backers insist, the 14th Amendment now guarantees “fetal freedom.” Not because three-quarters of the states deemed it so and not because the Supreme has ever ruled so—but just because the Trump administration says so.