Apropos of Paul's point that unborn children, once recognized as persons, qualify for the 14th amendment's provision of the equal protection of the laws, I decided to revisit a post of mine from the very beginning of this blog. I'll probably quote some of it and add some.
Here's the strange thing: Even if you are undeniably a person, the 14th amendment under present jurisprudence doesn't really give you the equal protection of the laws. Which is a bit of a problem, to put it mildly, because that's certainly what it sounds like it grants. Here is my mildly snarky summary from 2007 of the way that constitutional reasoning has gone:
The 14th Amendment says that states may not deny to any person the equal protection of the laws. This seems to mean that the states can't treat people unequally by law. But how can we possibly apply that, since all laws involve treating people unequally? A law against theft treats thieves differently from non-thieves. So what are we going to do? Hey, I know. Let's create three stages of scrutiny that the federal courts will apply to state laws, based on whether or not the state laws treat people unequally on the basis of "suspect categories." The most glaringly suspect category will be race or national origin, because the 14th Amendment was originally passed for the purpose of protecting former slaves. But gender is now also a suspect or semi-suspect category, and being disabled is becoming a suspect category as well. If your state law treats people unequally on the basis of something that hasn't been designated a suspect category, your state is in luck. That law only has to pass minimal scrutiny or the "rational basis test" by the federal courts if challenged as unconstitutional. But if your law treats people unequally on the basis of something designated a suspect category, then it has to pass strict scrutiny, which means it's prima facie unconstitutional, and you'd better have an overwhelmingly important state interest that it serves or it's going to be struck down. Intermediate scrutiny is somewhere in the middle.
Because I think this is so weird, I'm not going to resist the temptation to make up a new example to illustrate how weird it is. Suppose that the legislature of some state were to pass a law saying that women would henceforth not be hired to be state troopers. Because gender has become a "suspect class" for purposes of 14th amendment jurisprudence, such a law would be taken to be unconstitutional on its face. But suppose that the legislature of the same state were to pass an amendment to their state homicide and first-degree murder law stating, in so many words, that people eighty-five years of age and above will no longer be "covered" by the state's homicide and murder laws, that any private killing of a person of those ages will, so long as it is carried out humanely, not be subject to prosecution. (If not carried out humanely, it might be subject to prosecution under applicable state laws against torture or grievous bodily harm.)
This latter law would be subject to a much lower degree of constitutional scrutiny. Since 2007 we have all seen that the phrase "rational basis" can be wielded to mean a very strict degree of scrutiny indeed, when directed by judges against laws recognizing marriage only between a man and a woman. But for a long time before that, and presumably in other areas of jurisprudence, the "rational basis" test was supposed to be very easy to fulfill. It just meant that the government entity had to have some reason or other, even some practical reason, that made it expedient to have that law. That is presumably why rather silly laws against painting your house chartreuse or leaving your garbage bin more than x feet from your house are not regarded as unconstitutional. In this case, the state could claim that the rational basis for removing the protection of murder laws from the elderly was simply the cost of their maintenance, which was becoming unsustainable for the state's medical care system.
And, as I pointed out in the 2007 post, whatever the probable outcome of such a legal attempt, it's just bizarre anyway that deliberately not protecting some people against murder, and enshrining this in law, should be subject to lesser constitutional scrutiny than not hiring women for state jobs.
Our very interesting thread discussion (really, very high quality discussion) quickly went to a somewhat separate question--namely, whether the 14th amendment was meant to protect and should protect against systematic and selective non-enforcement of laws. If the police stand by while a black man is lynched, for example, even if such non-enforcement is nowhere enshrined in law, would this be a violation of "equal protection of the laws" as intended by the 14th amendment? (I choose a black man here, because race is acknowledged by all parties to be a "suspect class.") But I admit that that matter--the federal government's monitoring the states' application of their own laws--is very messy indeed and becomes micromanaging and a denial of federalism extremely fast.
So let's stick with the official legal removal of protection against grievous harm such as murder. Can we agree that something has gone drastically wrong in our interpretation of the 14th amendment when that is not facially unconstitutional, while the withholding of some government benefit from a "suspect class" is?
Because let's face it: If that is not cleared up, then unborn children can be declared in law to be persons every day of the week, and they will not therefore be protected by the 14th amendment. The reason is that you and I are not (unless members of a "suspect class") protected by the 14th amendment, as long as the state can dream up some fairly minimal and so-called "rational" basis for not protecting us.
I want to suggest here, as I did in 2007, that the problem arose originally with the focus on "equal" rather than on "protection." Everyone then got all tangled up in not making the outcome of "equal treatment" too ridiculous (since by definition laws treat groups of people differently), rather than focusing on "protection." Here is an addendum to my 2007 rad idea. Instead of defining a class of "suspect groups" whose treatment in every law, serious or trivial, must be overseen with intent solicitude by the federal judiciary, let's instead define a group of types of protection which neither the federal government nor the states may officially withhold from any innocent person while granting that protection to others. This would include protection against murder (of all grades), torture, rape, kidnapping, enslavement, physical assault, and maybe a handful of other truly serious harms. As I pointed out in the early post, this would not mean that the states were required to have such protections. If some state wants to delete all its laws against murder and create a state of anarchy, there is no prima facie conflict with the 14th amendment. But if the state has a law against murder, it cannot, at least officially, protect some people against it but not others.
Congress, to whom the concrete application of the 14th amendment is granted (surprise! not the courts), could find a way to write this up so as to create a cause of action for any person if the state denied to that person, officially in law, the equal protection of their laws against these serious harms.
Such Congressional action would give teeth to a relatively simple human life amendment. The simple human life amendment would not have to get into the nitty-gritty of what legislation must be on abortion but could simply state that human beings of all ages, including the unborn, are "persons" for purposes of the interpretation and application of the 14th amendment. Right now, if we were to pass such an amendment (fat chance, but "if"), it is quite unclear what its practical effect would be, because of the weirdness of 14th amendment jurisprudence I have just discussed.
Details remain, and I don't claim to have an ideal legal situation worked out. The most salient of these details (other than the fact that none of this is going to happen, but setting that aside), are these: 1) Precisely which state laws would become open to nullification as unconstitutional under such a combination of human life amendment and Congressional application of the 14th amendment to protection? Since the 14th amendment doesn't apply directly to private action, what would have to be struck down would be any state laws that recognize abortion as a legal activity. That, on the grounds that so recognizing it is failing to provide to the unborn the equal protection of the laws. But what laws are those? In many cases they may be laws requiring medical regulation of abortion clinics, for example. In some cases they may be laws limiting the abortion license, where such limitations have themselves been fought for by pro-lifers. Would it accomplish something good to strike down such state laws en toto because they treat abortion as legal in that state at all? Would the prosecutors then simply exercise prosecutorial discretion to allow abortions to continue unchecked? Perhaps a good target would be a state such as California, which allows even nurse practitioners to perform abortions. Presumably any state law could become a target if it expressly permits abortions to be performed, even by doctors, since such express permission amounts to declaring open season on unborn persons. 2) Who would have standing, even if Congress created a cause of action? This is particularly important since, in the case of the unborn, the unprotected class consists entirely of persons without a voice of their own. How could Congress give teeth to equal protection legislation for classes that are too young or otherwise mentally or legally incompetent to bring litigation on their own behalf? 3) How likely is it that later Congresses would repeal the interpretive legislation? 4) How can it be made clear that the legislation placing the emphasis on "protection" does not mean that states must abandon permissible self-defense? (Allowing a person to shoot an attacker is giving the attacker "unequal protection" from being shot.) How could this be addressed in the legislation without opening up the possibility that abortion would be similarly permitted under the guise of the woman's "defending" herself from the unborn child's "attack" on her bodily autonomy, or some such nonsense?
One thing that does come to mind: Any actual application of equal protection to the unborn would, or legally should, strike down all public funding for abortion, state or federal, at a blow.
I admit that all of this is con-law geekery of a mostly pointless sort. The one point it does have is a sober one: Pro-lifers didn't pass a human life amendment in the glory days of the 1980's in part because we weren't sure what amendment we wanted, so we didn't unite around a single one. Given the long-standing state of 14th amendment jurisprudence, a simple "unborn babies are persons" amendment, even if passed, wouldn't do the job by itself. So what more, legally, is needed? It is at least worth asking ourselves these questions.