Beyond Dred Scott: Personhood and Constitutional Protection

If equal protection were applied to the unborn, what would enforcement actually look like in American law? The 14th Amendment promises equal protection, but who counts as a “person” when the law is applied to the unborn? This week we sit down with Princeton’s Professor Robert P George, a leading scholar of jurisprudence and constitutional interpretation, alongside Professor John Londregan, to make a careful case that the Constitution’s guarantees should extend to children in the womb, not only to those already born.

The core dispute at the heart of the abortion debate is personhood. We talk through the biological reality of human development, the original public meaning of “person” in 1868, and why Section 5 matters for Congress’s authority when states fail to protect vulnerable lives. Also addressed is the claim that the 14th Amendment was about race rather than abortion. Then we get practical and argue for an approach focused on preventing death, avoiding vengeance, and preserving compassion for women in difficult circumstances, while also taking seriously the claim that abortion ends a human life.

If you care about constitutional law, originalism, equal protection, personhood, and the real-world stakes of abortion policy, this conversation is for you. Subscribe, share this episode with someone who thinks differently, and leave a review with your biggest takeaway.

Transcript

Welcome And Why This Matters

John Londregan 0:03

I find particularly eldritch about all of this is that at some level I think that proponents of abortion have recognized the humanity of the fetus all along, and they're simply happy to kill people who can't fight back.

Victor Nieves 0:25

Colonial legislatures passed laws protecting the lives of human beings in the womb long before even the American independence. Today, the 14th Amendment outlines citizenship, due process, and equal protection under the law. It requires that states provide this equal protection to all persons within their jurisdiction. While this has been a cornerstone of American law for years, unfortunately, it has never been applied to our most vulnerable and innocent, the unborn. Welcome to Straight Talk on Life Issues. I'm Victor Nieves, president of Life Issues Institute. Joining us today for a discussion on the 14th Amendment and equal protection for the unborn is Professor Robert George. He's the McCormick Professor of Jurisprudence and Director of James Madison Program in American Ideals and Institutions at Princeton University. We're also joined by Professor John Lodregan, a specialist in the development and application of statistical methods in political science. He received the Miller Prize for Best Paper in Political Analysis at Princeton University. Well, Professor John and Professor George, thank you both so much for joining us today. This is a very important conversation, and it's a blessing to have such experts.

John Londregan 1:38

It's wonderful to be on with you. Great to be on the show. Thanks for having me.

What The 14th Amendment Says

Victor Nieves 1:50

Well, Professors, this is such an interesting conversation. And maybe some people haven't thought it through all the way, but the 14th Amendment, as a layman, it would sure seem, just by a simple reading of the text, ought to protect the unborn. I would love it if both of you could just kind of lay the groundwork for us as we enter this conversation. What is the relevant part of the 14th Amendment? What are we looking at? And how might it protect or should it protect the life of the unborn in the womb?

Robert George 2:17

My own area is philosophy of law and constitutional uh law. So the 14th Amendment is a subject of great interest to me professionally. And uh for my 41 years in academic life, I've been teaching constitutional interpretation, and I always spend a good deal of time in my courses on the 14th Amendment. So perhaps the way to begin, Victor, is in thinking about why we have the 14th Amendment in the first place.

Dred Scott And The Amendment’s Purpose

Robert George 2:40

In the 1850s, just before the Civil War, in fact, a precipitating cause of the Civil War, was a decision by the Supreme Court of the United States in a case called Dred Scott against Sanford. Dred Scott was a slave. He had been taken by his master into free territory, one of the territories of the United States where slavery had been abolished or restricted by Congress. The slave, then Dred Scott, sued for his freedom on the ground that since he had stepped foot in free territory, he was free man. The rule he appealed to was the traditional rule, once free, always free. The case made it all the way to the Supreme Court of the United States, where in an opinion by the then Chief Justice, whose name was Roger Brook Tony, who was from Maryland, the court ruled against Dred Scott. And there were two dimensions of the holding, very important. One was the court said that Congress lacks the power to ban or restrict slavery even in the federal territories. That is, even in the places where you don't have a state, so the federal government is all there is. It's a government there of plenary authority, general jurisdiction. Congress assumed it had the right to resolve the slavery question in those territories over which it had jurisdiction, but the court said no, you don't have that right. The second dimension of the holding was that the court held that black people, even free black people, even free black people in free states could not be citizens of the United States and therefore could not have their rights as citizens honored and protected. This holding, of course, is now infamous. It's a blot, a terrible blot on the Supreme Court of the United States and on the conscience of the nation. And whatever its intention was, and there are many people who think that Roger Brook Tony handed down that ruling in the hope of avoiding a civil war, well, it had the opposite effect. It made civil war almost inevitable. And as Lincoln said, the war came with its carnage, 750,000 in a population of only 20-something million. Well, of course, the North, the Union, prevailed. The Republicans, who were then in power under Abraham Lincoln, prevailed in the Civil War. And immediately after the Civil War, of course, they decided we're going to have to deal once and for all with this slavery issue. So they added to the Constitution a 13th Amendment, which abolished slavery nationwide. But they knew that abolishing slavery would not be enough. They knew that the newly freed slaves and their descendants would be subject to bias, to prejudice, to discrimination, to abuse, to terrible things. And so they added a 14th Amendment. The very first sentence of the 14th Amendment overturns the ruling in Dred Scott against Sanford. It says that persons born in the United States or naturalized there and subject to the jurisdiction of the United States are citizens of the United States and of the state in which they reside, which means that Georgia or South Carolina could not prevent black Americans from being citizens not only of the United States, but also of Georgia, South Carolina, of the state in which they reside. But then, in addition to that first sentence, an additional sentence was added that said, no state shall deny citizens of the United States of their privileges and immunities as citizens of the United States, nor shall any state deny any person, not just citizen, any person of life, liberty, or property without due process of law, or any person within their jurisdiction the equal protection of the laws. And then if we go down from there, what I've just quoted is from the first section of the 14th Amendment, if we go down from there to the fifth section of the amendment, and this is very, very important, authority is granted to Congress, to Congress, to the elected representatives of the people in Washington, D.C., in the House and in the Senate, to enforce the guarantees of the First Amendment, the Privileges and Immunities Clause, the Due Process Clause, the Equal Protection Clause.

Section 5 And Defining Person

Robert George 6:33

And here's where we find, in my opinion, protection for the unborn. It is within the authority of Congress to act when states fail to act to protect equally all persons. So then the only question is, what is a person? Well, we know that unborn children are human beings from the very earliest stages of development. We are not creatures who begin as something else and only later become human beings. As a matter of sheer plain biological fact, we human beings begin from an early embryonic stage. We begin as what's sometimes called the zygot, and we develop from the embryonic into and through the fetal infant, child, and adolescent stages and ultimately into adulthood, with our unity and determinateness and identity fully intact. That's why it is absolutely true to say that you, each of us, was once an embryo. Just as we were once an adolescent and once a fetus and once an infant, we went through those stages of development. None of us were ever a sperm cell or an egg cell. None of us was ever a gamete. The gametes whose union, sperm and egg, brought us into being are both genetically and functionally distinct from us. They are parts of our parents, our male and female parents, our father and uh and mother. But once we have the union of the gametes bringing into existence a new whole, complete self-integrating organism that will then develop through those stages, well, then you have a new human being. So then the question has to be decided is are all human beings persons? Or are persons a subclass of human beings? Are there some human beings who are human non-persons? You might recognize that concept from people like the Nazis, who thought that there were some human beings who were inferior human beings. They were non-persons. They didn't rise to the status of being people whose interests actually count and who have rights. Well, we in the United States have always, to our very great credit, rejected the idea of there being human non-persons. But there's more than that to the case for the unborn child as being protected by the 14th Amendment. And that is if we look as originalists in the theory of constitutional interpretation, like the six members of the Supreme Court today who constitute a majority, they embrace the doctrine of originalism. They want to know what was the original understanding of the terms of the provision of the Constitution being interpreted. If we look, Victor, at the original understanding, the public meaning of the term person, in 1868, when the 14th Amendment was ratified, the evidence is overwhelming that they meant not only persons who have been born, persons after birth, not only adults, adolescents, children, infants, but also those waiting in the womb to be born. And the evidence comes from medicine, medical texts, medical treatises, medical practice, law, statutes, precedents, legal treatises, the whole panoply of materials of the time show that there was a universal understanding that persons referred to human beings both after birth and and before birth, which says to me that the Supreme Court would be entirely right to declare, it hasn't yet done this, but it would be entirely right to declare that the unborn are themselves protected under the Fourteenth Amendment. And it certainly authorizes Congress, given its enforcement power under Section 5 of the 14th Amendment, to act at the national level to protect unborn children when it comes to any state that fails to afford to them the equal protection of the laws. Just as states have an obligation to make sure that black people or Asian people or people of any descent or any description are afforded equal protection of the laws, so Congress has the authority and should act to ensure that states grant the equal protection of the laws to unborn persons. That's the way the case is made.

Victor Nieves 10:21

Well, Professor George, thank you so much for laying the groundwork there. Professor John, do you have anything you wanted to add

Republican Government And Human Rights

Victor Nieves 10:27

to that?

John Londregan 10:27

Yeah, I would say that obviously everything Robbie's just said is true, and this is fundamental to our understanding. But on top of that, I mean, my reading of Article 4, Section Four, that says that this federal government will ensure that each state maintains a Republican form of government already ensures the rights of every human being. That you can't have a Republican form of government that excludes people or treats them as if they're animals. It's not compatible with Republican government. Small R Republican government. So I think this was a feature that was already baked into the Constitution, and shame on economic interests for distracting people from it for the first 89 years that the Constitution was enforced.

Best Counterarguments And Why They Fail

Victor Nieves 11:10

Professor John and Professor George, I'm curious. I hate to uh pit great minds against each other, but out of curiosity, if you had to, what would you say to present the counter-argument, right? There's those who say no, the 14th Amendment. I mean, as of right now, it has not yet been applied to the unborn. It seems to me that this is fairly obvious. It seems maybe it's just that you've given a very good pitch for it, but it seems that this is pretty cut and dry. The 14th Amendment should protect the unborn baby in the womb. What do the detractors say? What is the counter-argument from those who say, what are you talking about?

Robert George 11:43

They don't have a good argument, but let me make the best argument that is available to them, which is to say, hey, those guys who enacted the uh 14th Amendment, those people who enacted the 14th Amendment, who ratified the 14th Amendment, who drafted the 14th Amendment, and so forth. They weren't thinking about abortion. They weren't thinking about unborn children. They were thinking about race. They were thinking about black people. They were thinking about the newly freed slaves and their descendants. Now, all that's true as far as it goes, they were thinking about black people. They were thinking about the newly freed slaves and the need to protect them and their descendants against the discrimination and abuse that they knew would be coming. But notice that they don't frame the Fourteenth Amendment in terms of race. The word isn't mentioned. They don't frame it in terms of being black or any other racial or ethnic category. They deliberately speak in general terms. No citizen shall be denied by any state the privileges and immunities that he or she has in virtue of his citizenship. No person, it's just doesn't say black person, doesn't say Asian person, doesn't say Latino person, doesn't say white person, no person shall be denied by any state life, liberty, or property without due process of law or deprived of the equal protection of the laws. So I think the best the folks on the other side can do, the so-called pro-choice side, those who want to defend the killing of unborn children as a woman's right or what have you, the best they can do is to say it just wasn't about abortion. That wasn't the subject of the 14th Amendment. But of course, you could say the same thing. I mean, if you take that kind of reading of the Constitution, you could say, well, it doesn't mention Latinos, it doesn't mention Asian people, for it doesn't mention disabled people, therefore there's no 14th Amendment protection for those people. No, it's a general principle that is articulated. And I can tell you, I can describe for you what that principle is, Victor. It's the principle of the profound, inherent, and equal dignity of each and every member of the human family. It's the same principle that's articulated in different terms, beautiful terms, in that second sentence, that famous second sentence of the Declaration of Independence. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights. And among these are life, liberty, and the pursuit of happiness. It's the principle that our most fundamental rights do not come from government. They don't come from, they're not gifts from presidents or kings or congresses or parliaments or supreme courts. They are not given to us by any merely human power, which means that no merely human power is entitled to violate them or take them away. That's the glory of this great American experiment in Brother Londergrand's absolutely right about this, republican government. That is, government not only of the people, which all government is, not only of government for the people, which all good government is, even the government of benign despot is for the people, not in his own interest or his family's interest or his tribe's interest. No, a good king rules for the people. What's special about Republican government is it's government by the people. And that presupposes the equality of everyone, that equal protection principle. That's why I was so uh fascinated, and I was nodding my head, yes, when John Londregan pointed out that even in the unamended Constitution, you have a requirement of the federal government to guarantee that the states operate according to Republican principles, guaranteeing Republican government in the states and not simply at the federal level. Already there you see, as John pointed out, this commitment to equal dignity.

Victor Nieves 15:17

Professor John, I'm curious, and thank you, Professor George. Professor John, have you heard a compelling argument of any kind, or is it basically this same, you know, race-based interpretation?

John Londregan 15:28

So as for compelling arguments, I think there isn't a solid argument on the logic. I think from principles, it's not there. There are persuasive sophistries out there about, oh, the Constitution was drafted in the past and so forth and so forth. We rule ourselves today. And it's a great misinterpretation of sovereignty. And it's often done very opportunistically. The same people who are railing against the right to life will find other elements that they'll claim are ineradicable features of our society and our culture that can't be changed when it

Personhood, Euthanasia, And A Personal Story

John Londregan 16:03

suits them. One of the things that I find sort of central to the whole argument about abortion is personhood. You know, are fetuses people. Once you recognize the humanity of the fetus, I think the argument is over. And, you know, the arguments back about the rights of the mother and they're being violated by the presence of the fetus. Well, you know, there's a whole medical ethics about dealing with conjoined twins and so forth. And difficult issues arise. But at most, you know, what you'd wind up doing is weighing the survival and life prospects of mother and fetus equally. And the fetus would have as much human standing as the mother in decisions that are being made about his or her survival. So that's that just seems cut and dried. What I find particularly eldritch about all of this is that at some level, I think that proponents of abortion have recognized the humanity of the fetus all along, and they're simply happy to kill people who can't fight back and whose existence is inconvenient. And as proof, a very unfortunate proof of that, we have the onslaught of euthanasia, the increasing popularity of and pressure for euthanasia. And that's a situation where the person being killed is undeniably a person and a human being. And they have to make something like the Nazi argument that this is a life unworthy of life, that the amount of pain and suffering or something, the amount of inconvenience for me is probably the real answer, justifies taking a human life. And it's it's chilling. And I think we're gonna see a lot more of it. Myself, born to unwed parents and adopted at birth. And fortunately for me, Roe v. Wade was still 15 years in the future. I might or might not squeak by before there are health review boards that decide whether or not the elderly are put to death. But if we don't change social direction, I think there is an extremely real possibility that in the lifetimes of my students of today, there will be such institutions. And that my students of today, as elderly people, will face a state that just wants to get rid of them and is willing to kill them to do it. Now, I don't want to be terribly alarmist, but I unfortunately don't think this is falsely alarmist. I think this is the direction we're heading by being willing to kill people that we recognize as people.

Robert George 18:35

You know, I of course known John Londregan's story for some time, but every time I hear it, I'm so deeply moved because here's someone who has been such a blessing to our university here at Princeton and to the profession of political science, and such a blessing to me personally. I find myself saying, gosh, well, we're very lucky that abortion was not available and tempting uh to John's mother when she found herself in a difficult situation, not married to his father. You know, fortunately she gave him the beautiful gift of life, and we have the beautiful gift of John's life. And there are how many people like John out there who are with us because abortion was not given to them as an option or was not something that the mother was pressured to do, or felt pressured to do, or felt that there was no other choice and and so forth.

John Londregan 19:21

Thank you very much for the kind words. But whether or not you like me or not, whether or not I'm a useful member of society or not, the point is that abortion kills somebody. And even if the person being aborted wasn't going to go on to achieve things that other people found great, that individual had a destiny of her own. And she deserved to live it out. And killing her is wrong, whatever that destiny was.

Robert George 19:49

Absolutely true. Absolutely true. Victor, you sometimes hear people argue, well, look, the 14th Amendment shouldn't, even if it protects the unborn, it shouldn't matter. Because it's really illegitimate because it was enacted at a time when we did not have universal suffrage. Women did not yet have the right to vote, so they couldn't weigh in on it. So the 14th Amendment should not be regarded as binding, at least when it comes to the unborn. Now, of course, if that's true, then it's illegitimate and not binding with respect to protection to our black fellows, citizens' fellow human beings, or to others, so that's ridiculous. But I would also add this that the great founding mothers of feminism, the great figures of the 19th century, Susan B. Anthony, Alice Paul, those who campaigned for the rights of women, including the rights of women to vote as full citizens, as full participants in our uh political order, they were strongly pro-life. It was only second wave feminism that embraced the abortion cause. This was not the opinion of uh women, including leading feminists in the 19th century. I should also add that at the very time the 14th Amendment was being ratified, you had states strengthening their protections for unborn children. There had already been protections rooted in the common law, but the American Medical Association, yes, you heard that correctly, Victor, the American Medical Association in the mid-19th century, 1800s, led the campaign to strengthen those common law protections of the unborn. And part of their motivation for doing that was that the science had made clear that from the earliest stage, as John pointed out, from the earliest embryonic stage, you actually have a living member of the species Homo sapiens. So old biological notions had been exploded, such as Aristotle's idea that we begin not as beings with a rational nature, but simply as beings with a vegetative nature, and then we move on from that to being beings with a sensitive nature. And then only after that do we become beings with a rational nature. Aristotle had this idea that there's a succession of souls. One type of soul replaces another type of soul. It was the best science that they had at the time, but it was wholly inadequate. It's before the rise of modern science. So, you know, Aristotle's idea is you begin with a vegetative soul and that gets replaced. By a sensitive soul, and that gets replaced by a rational. So, well, what something big happened in about 1826, 1827, which is the uh the European scientist von Behr discovered the mammalian ovum. And pretty soon the discovery came almost immediately of the human ovum. And we began to learn the actual facts of life. And we began to understand that you actually come into being as a being with a certain sort of nature, a human nature, and that you then have a gradual and gapless development, not a succession of episodes, but a gapless, gradual development from the, and a natural, internally directed development from the embryonic, as I say, into the fetal infant, child, and adolescent stages. You continue to be the very same you who you were on the day that you were conceived.

Consciousness Tests And The Singer Challenge

John Londregan 22:47

A propos of that, there's an argument about that, well, if the fetus isn't conscious, then it's all right to kill the fetus. And I'm reminded of a famous case that came up in Chile of all places. The former president was undergoing surgery during the time of military government. His friends had all told him to get out of the country to do the surgery, but he did it in Chile. And the judicial finding afterwards is that the doctors who were working on him killed him while he was in surgery. They infected him while he was unconscious. And then the infection took its course. We would all agree that doing that is murder. And if you kill a fetus that will, in the normal course of events, emerges as a young, young child without absent any intervention, well, that's like killing somebody who's currently under anesthesia but who will wake up, with the difference that the fetus is probably actually conscious to some degree, although the surgical patient isn't at the moment of surgery.

Robert George 23:41

You know, John and I have here at Princeton, although he's just recently retired, a famous colleague whose name is Peter Singer. He's an internationally famous, very controversial philosopher. And a professor Singer is an advocate of abortion, but he's a very honest person. John and I profoundly disagree with him, but there's no questioning his honesty when it comes to the abortion question, because he says, look, abortion is justified because you're not a person, although you are a human being. You're a human non-person, you're not a person until you achieve a certain level of cognitive functioning, which comes not while you're in the womb and not when you're born, but only sometime after you're born. And so he famously or infamously proposed some years ago, I think he withdrew the proposal, but he proposed in print in the British journal The Spectator that new parents, all new parents, parents of any child, should have a 28-day window in which to decide after the birth of the child whether the child should be allowed to live or should be killed. Now, of course, we're shocked and scandalized by the advocacy of infanticide, but look at how consistent Professor Singer is there. He recognizes that there's nothing different about birth. There's no magic to birth. You're the same being before you're born that you are after you're born. So if there's a reason you shouldn't kill a human being, you gotta identify what that reason is, and it can't be birth. And he thinks that you could have there are reasons to kill human beings if they're not yet persons. They're not yet persons until they have a certain level of cognitive uh functioning. I remember some years ago, I don't know if you remember this, John, but the governor of New York at the time, a man named Mario Cuomo, he was infamous for as being a pro-abortion Catholic who claimed that while he was personally opposed to abortion, I'm not sure what that meant, but he's personally opposed to abortion. Maybe he believes that people shouldn't have them. Nevertheless, he was politically pro-choice, as he put it. And his argument was, we don't know when life begins. That's a religious question. We shouldn't impose our religion. I, as a Catholic, shouldn't impose my religion on people who don't believe what the Catholic Church teaches about the sanctity of human life prior to birth and at all stages. Well, Professor Singer wrote a letter to a newspaper in which Governor Cuomo had published his article, in which he castigated Cuomo. And he said, You're making the wrong argument for abortion. I'm on your side, I'm for abortion, but we shouldn't say we don't know when life begins. Of course we know when life begins. We can't say that it's religious teaching, whether the creature before birth is a human being. Of course it's a human being. That's a matter of scientific fact. You know, it's not a potato, it's not a rock, it's not a rhinoceros. You've got a human being there. Says we should be defending abortion on the ground that until sometime after birth, which means we're defending infanticide as well, you don't yet have the level of cognitive function of that human being to qualify that human being as a person. Now, of course, John and I radically disagree with uh Professor Singer on abortion and infanticide, but I gotta commend him for his honesty in telling the truth about the absolute incoherence of the position so familiar. It's not just Mario Cuomo. I mean, just think of how many people say, well, you know, we can't know when life begins, therefore people should be able to have abortion. Singer doesn't take that off-ramp. He doesn't make that phony argument. He says, Yeah, of course we know when life begins. Of course we know it's a human being being killed, but it's not a person.

Victor Nieves 27:02

We call that we do a lot of apologetics, Professor George, and we call that people dying on crazy hills. You know, to be consistent, you have to die on crazy hills, which would be to say you're okay with infanticide. It's it's funny too, because most scientists would tell you that a newborn human being is far less sentient. They don't have the cognitive ability of an adult pig. And so you run into some ethical problems whenever it comes to that.

Robert George 27:25

That's exactly Professor Singer's argument, by the way. And he thinks it is wrong to kill adult pigs.

Victor Nieves 27:30

Yeah. Which, you know, consistency. I again, like you said, you kind of have to credit him for that, but at least he's honest. I wish all of the abortion advocates would be as honest. People would run and shriek in fear of the position.

What Equal Protection Enforcement Looks Like

Victor Nieves 27:42

I'm curious, as we talk about the 14th Amendment, let's say that we get the desired decision at the United States Supreme Court, and we do see the 14th Amendment rightfully applied to the unborn child in the womb. On the brass tax here, what would that actually look like? Is it just a straight equal protection for the unborn in the exact same way that you and I would have it? If someone was to kill me, obviously there would be, you know, legal consequences for that. What does it look like should we succeed in this effort?

John Londregan 28:09

I would hope that lawmakers would tailor the enforcement to the objective of keeping people alive. So I think the objective of enforcing anti-homicide laws is to prevent homicide. So right now we have various qualifications on that. For example, there's still due process for the accused, we still have rules of gathering evidence and so forth, because while we care about preventing homicide, we realize that if we were hyper-aggressive about every accusation of homicide, we would probably actually lose respect for the law and more people would be killed. And I think in terms of abortion, you know, the idea of hanging women who had abortions is a mistake. I think there are ways of protecting life that don't require us to use the utmost penalties to do it. Not because life isn't important, but because we have to find an enforcement mechanism that actually works. And amongst other things, jury nullification would stop us cold if we took a draconian approach. So I would urge us to be pragmatic about defending the life of the unborn, just as we're pragmatic in defending the life of the born. But it would certainly mean taking seriously the taking of unborn light.

Robert George 29:25

Completely agree with Professor Londrigan on this. The important thing is to protect babies, protect unborn human beings. And that should be our focus. It's not retribution or revenge or anything like that. We're not interested in that. We realize that women, John's own mother, I'm sure, you know, women find themselves in difficult situations. And abortion can seem sometimes to people like the only conceivable option. And people do have trouble understanding how, you know, uh what appears to be a mere clump of cells could actually be a human being with full human rights. We we can appreciate that. We can take all of that into account. And again, we're not interested in punishing people for the sake of punishing people. We're interested in protecting human life. So I'm with John 100% on this. Now, if the Supreme Court did the right thing, and then if Congress did the right thing, what we would have, I think, is a situation where elective abortion would be constitutionally impermissible. That is what Europeans call social indication abortions or abortions that are motivated precisely by the objective of eliminating the child, the existence of the child. Now, there is another category of surgeries, which are sometimes called abortion, sometimes called indirect abortion, or sometimes called therapeutic abortion. Whether the term abortion should be used here at all is a debatable and problematic issue. This is where the pregnancy itself creates a threat to the mother. So we're in a tragic situation, for example, an ectopic pregnancy, where the embryo is conceived outside the womb, say in the fallopian tube. And unless the embryo is removed, both the embryo and the mother will die. And there's a procedure for removing the embryo. Unfortunately, the embryo is not developed far enough that it can survive outside the womb, say in an incubator or something like that. Now, maybe a technology will come someday that'll make that possible. But at least for now and for the foreseeable future, that's not possible. I think there, John, the regulation of uh the procedures, of the medical procedures that would allow for uh the protection of maternal life, that's within the province, the legitimate province of the state. The Supreme Court of the United States should not, I think, intervene there, nor necessarily should Congress. I think it should be handled the way we we handle these issues more broadly in medicine, and uh we let the states devise the particular rules, attempting to protect both maternal life and to the extent possible embryonic and fetal life. So it wouldn't be that there would be no room for state legislation, and the entire domain would be taken over by the Supreme Court or by the federal Congress. But it would mean that states would not be constitutionally permitted to allow elective abortions any more than you're constitutionally permitted to kill members of a certain race or members of a certain ethnicity or disabled people or anything like that.

John Londregan 32:15

Aaron Powell So, Robbie, the principle you're articulating is completely consistent with treating the life of the fetus as a fully human life. But then so is the life of the mother. Trevor Burrus, Jr.

Robert George 32:24

It's exactly right. The analogy you used earlier, I think, John, is a very good one here the treatment of conjoined twins. Yeah, exactly right. Abortion is not the only area where we face this dilemma. Trevor Burrus, Jr.

Victor Nieves 32:34

Professors, I'm curious as you talk about this, my brain just thinks, for example, in our existing legal system, and y'all are experts on this, I don't want to call it because this is probably a very imperfect way to phrase it, but we already have maybe something of a sliding scale in the application of justice. My brain says if a 13-year-old boy commits homicide, oftentimes the court can look at him a little bit different. We already kind of have this built in to our system where we understand, okay, we don't always have to go to the maximum. We don't always have to go, Professor John, as you described it, in something of like a draconian fashion. We don't have to be hanging people in the streets, but we can still have justice. We can still have a system that protects, you know, the innocent life and values, as you've both said, the life of both mother and child. And that would seem to be the reasonable approach.

Robert George 33:20

Absolutely right. You know, we have all sorts of levels. We have different degrees of homicide, of course, we have different degrees of murder, even, but we also have different degrees of manslaughter where the it wasn't anybody's objective to get to make somebody dead. But nevertheless, they did something that ended up resulting in the death of another person. And we do treat people who are under duress differently or under extreme stress, or not for one reason or another, we see a ground to treat more leniently. We do treat them more leniently in our legal system. And our legal system allows room for that because we recognize the complexities of human life. Honestly, I would like the minimum level, especially given that we've been teaching people by the teaching function of the law for 50 years, that the unborn human life doesn't deserve protection, that women have a right to abortion and so forth. You've got a whole culture out there that's been shaped by Roe versus Wade and something. I would prefer that we have the minimum level of punishment necessary to protect unborn babies. That's all I want. And we could do an enormous amount simply by the revocation of medical licenses for anybody who performs an elective abortion, that is, deliberately targets the unborn child for her death, where that's the objective of the act. Think of just in itself what that would do.

John Londregan 34:38

Absolutely. Dr. John, do you have anything to add to that? I think that's exactly right. I think the objective here is to protect life, not to exact some kind of uh misplaced vengeance. And there are issues. I mean, women are in a tight spot often when they choose to have an abortion. They're not doing it lightly, but they are taking a human life. And that life needs to be protected, but the woman doesn't need to be made worse off.

Robert George 35:01

Agreed. That's that's why. I mean, people like John and myself, and I'm sure this is true for you and everybody, you know, in our pro-life communities, we're interested in saving lives. And we're interested in caring for women, as so many pro-life people are involved in on a day-to-day basis, caring for women who find themselves in difficult circumstances, perhaps for financial reasons, perhaps for social reasons, perhaps under pressure from boyfriends or even husbands, or sometimes even parents and others. I mean, we should have nothing but compassion and concern for women in that situation and girls in that situation. And we should be reaching out to them in a spirit of love, not retribution. We don't need that retribution stuff. That's not what this is about. We want to protect them and we want to protect babies. We are the camp that says love them both. And love is an active thing. It's not just like an emotion, it's not a passive thing. Love is an active thing. That's why we're acting to protect the unborn child, but we're also acting to protect women, to provide for their needs, their material needs, their emotional needs, their spiritual needs, and so forth. And God bless the people who are out there in those pro-life clinics, and their majority, overwhelming majority women, out there reaching out in love and compassion to their sisters in need and bringing so much comfort and care to women who are sometimes in rather desperate situations, who need lodging, who need food, who will eventually need help in caring for the baby, just ordinary diapers and bottles and all the stuff that goes into caring for a baby, especially if if there's not a husband or a man in the picture to help. That is in itself, Victor, is vitally important pro-life

Compassion, Practical Help, And Closing

Robert George 36:37

work.

Victor Nieves 36:37

Professor George, I think that is the perfect note for us to wrap it up on. Professor John, Professor George, thank you both so much for joining us today. Thank you. Thank you. The 14th Amendment absolutely, from every possible angle, should 100% protect the life of the unborn child. So we definitely need to continue to focus on this as an issue. Hopefully, continue joining with me in prayer for the United States Supreme Court. Hopefully, we do see the 14th Amendment applied to the life in the womb, the innocent child that is so tremendously important. I want to encourage you to visit our website, lifeissues.org. You can learn more about the 14th Amendment. You can learn more about this argument, and you can share it with your friends and your family as together we fight to create a culture of life in this country. Be sure to tune in next week for another straight talk on life issues.