Immediately after the draft opinion in Dobbs leaked on May 2, Republican lawmakers and anti-abortion activists from the Susan B. Anthony List announced they were working on legislation to ban abortion nationwide. But Catholics for Life (CFL), impatient to achieve that goal sooner, have asked the Supreme Court to do just that in a petition filed on Sept. 1.
CFL and two “unborn Petitioners”—represented by their pregnant mothers—have asked the U.S. Supreme Court to rule that fetuses, “regardless of gestational age,” are “entitled to the protections and guarantees of the due process and equal protection clauses of the United States Constitution.” They seek an order striking down a 2019 Rhode Island law legalizing abortion in the state.
Just over two months after the Supreme Court in Dobbs gave states the power to regulate abortion, CFL has asked the Court to snatch that power back and ban abortion nationwide by ruling that “unborn human beings” have full constitutional rights.
The Supreme Court in Dobbs invited such a request by referring to “unborn human beings” 23 times in its opinion in that case, laying the groundwork for striking down state laws protecting abortion rights in states such as Rhode Island, New York, Illinois and California.
“Once you say that it is an ‘unborn human being,’ then it’s a short step to saying that laws allowing abortion are unconstitutional because they deny equal protection to those persons that are unborn human beings,” said Berkeley Law School Dean Erwin Chemerinsky. “I believe that there may be a majority on the Court to take that position … then what restrictions will be imposed on women and what will women be prosecuted for doing during their pregnancy? Working in certain jobs? Drinking? Taking certain drugs?”
Catholic for Life’s brief mentioned “unborn human beings” 25 times. They argued the Court’s ruling in Dobbs “surely [signals] rejection of this Court’s statement in Roe that ‘[t]he word ‘person’ as used in the Fourteenth Amendment, does not include the unborn.’”
U.C. Irvine Law Professor Michele Bratcher Goodwin noted that the Supreme Court in Dobbs ignored that the 14th Amendment’s definition of citizens as “persons born … in the United States” in the first sentence of the amendment. “That’s very explicit. That’s very clear,” said Goodwin. “The Constitution does not mention embryos, fetuses or ‘unborn human beings.’”
If in fact the Court rules that zygotes, embryos and fetuses have full constitutional rights, they will undoubtedly also rule that these “persons” have rights greater than any born person has: namely the right to inhabit and use a woman’s body against her will. No born person is entitled to the bodily tissue and fluids of another born person.
Catholics for Life Cites Notorious Misogynists to Support Elimination of Women’s Abortion Rights
CFL claimed to represent two “unborn persons” described as follows: “At the time of Petitioners’ filing of their Complaint, Baby Roe was 15 weeks gestational age and Baby Mary Doe was 34 weeks gestation age.”
They asked the Court to “identify the guarantees upon which Petitioners—any unborn plaintiff regardless of gestation age—can rely for constitutional protection under the Fourteenth Amendment, and whether unborn human beings will categorically be denied access to the courts to challenge the law.”
At issue is a Rhode Island’s Reproductive Privacy Act passed in 2019, which codified abortion rights established in Roe v. Wade and eliminated a 1974 Rhode Island law stating, “human life commences at the instant of conception”—a law never enforced because of Roe.
Following Roe v. Wade and Casey v. Planned Parenthood, the Rhode Island law allowed abortion for any reason before viability and bans abortion after viability, except when necessary to preserve the health or life of the pregnant woman. CFL argued the Rhode Island law “creates an unconstitutional classification of ‘persons’—viable and unviable,” which they described as the “quasi-suspect classification of age—gestational age … entitled to a heightened level of judicial scrutiny under the Fourteenth Amendment’s equal protection clause jurisprudence.”
CFL asked the Supreme Court “whether there is an objective gestational age where an unborn human being is entitled to the protections and guarantees of those due process and equal protection clauses.” Further on, they asked, “Do unborn human beings, at any gestational age, have any rights under the United States Constitution? Or, has Dobbs relegated all unborn human beings to the status of persona non grata in the eyes of the United States Constitution—below corporations and other fictitious entities?”
CFL suggested the Court answer these questions by looking to “historical understanding and practice,” citing cases going back to 1740 and the notoriously misogynist 18th century legal theorists Matthew Hale and William Blackstone.
Hale’s 1736 treatise, History of the Pleas of the Crown, theorized a “husband cannot be guilty of a rape” because marriage conveys unconditional consent. Blackstone’s 1769 treatise, Commentaries on the Laws of England, declared a married woman and man as one person under the law—the man, who had the “power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children.” Goodwin argued that Blackstone’s “legal reasoning helped to forge a legal culture that tolerated and amplified misogyny and violence against girls and women in American households.”
Referencing language in the Dobbs decision, they argued, “Legal protections for unborn human beings are objectively deeply rooted in the Nation’s history and tradition.”
That CFL would rely on such authorities is no surprise considering the U.S. Catholic Bishops’ longstanding practices of perpetrating sexual abuse, protecting sexual abusers and advocating for forced pregnancy.
In their brief, CFL demands, “this Court must complete the analysis begun in Dobbs. … Now is the time. This is the case.”
In his concurrence in Dobbs, Brett Kavanaugh argued that the Constitution was neutral on abortion and that states have the power to determine whether abortion should be legal or not. He said, “The Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views. …This Court therefore does not possess the authority either to declare a constitutional right to abortion or to declare a constitutional prohibition of abortion.”
Similarly, Samuel Alito in the majority opinion, wrote that the abortion decision should be made “the people and their elected representatives.”
One can only hope they hold to this opinion—but they don’t have a good track record on following precedent.
U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.
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