“Harvard law journal: unborn babies are constitutional persons.” So reads the surprising headline on the press release from the student-run Harvard Journal of Law and Public Policy. In a provocative article, law student Joshua Craddock fires a challenge not only at pro-choice orthodoxy but at mainstream pro-life thinking. He declares both “constitutionally unsound.”

Edited by Harvard Law School students, the journal describes itself as “the nation’s leading forum for conservative and libertarian legal scholarship.” New Supreme Court justice Neil Gorsuch’s article on assisted suicide first appeared there. Ted Cruz was an executive editor.

Before he went to law school, Craddock worked for Personhood USA, a United Nations NGO. A recent graduate of King’s College in New York City, he has written for The Stream.

The Article’s Challenge

Craddock’s article challenges the Supreme Court’s pro-choice decisions. The majority of the Court since 1973’s Roe v. Wade refuses to decide whether an unborn child is a human being with human rights. The court basically says, “Who knows? So we’ll say no.”

The justices think other matters are more important than the answer. One of them is the belief found in the majority decision in Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” A definition of personhood “formed under compulsion of the State” would keep people from exercising this liberty. So the justices believe.

The article also challenges the broad agreement among pro-life legal scholars that the Constitution doesn’t say anything on the issue. Most speak as “originalists,” people who try to find what the Constitution meant to those who wrote and approved it.

Most conservative legal scholars claim that the Constitution doesn’t deal with the nature of the unborn at all. Conservative judicial hero Antonin Scalia declared that the Constitution says “absolutely nothing” about abortion. It assumes only “walking-around persons” are real human beings, he once said.

These scholars would leave the decision to the political process. That means the state governments. This allows what Scalia called “regional differences.” In their idea of the Constitution, an unborn child might be protected in one state and killed at any moment until birth in the next one. Craddock calls this “the states’ rights view.”

They’re Both Wrong

Craddock thinks they’re both wrong. Pro-choicers and pro-lifers both misinterpret the Constitution. The “original” meaning includes the unborn child’s right to life.

He focuses on the Fourteenth Amendment, passed in 1868. No state, it declares, shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Whatever the original Constitution may have to say on abortion, Craddock argues that amendment includes the unborn among the “persons” whose rights it protects. They can’t be deprived of “life, liberty, or property, without due process of law.” They, just as much as born persons, have the Constitution right to “the equal protection of the laws.”

Craddock provides three arguments: What the word person meant then, the anti-abortion laws of the time, and what the people who wrote the amendment said about it, all show that the amendment includes the unborn.

Take the state anti-abortion laws in place before the Fourteenth Amendment was adopted. Almost every state had laws against abortion, he notes. Most of these laws were part of the law covering “offenses against the person.” In addition, 23 of the 37 states explicitly called the unborn child a “child” in their laws. Six of the 11 territories did so as well.

Craddock offers other evidence. In 1859, the American Medical Association demanded the government protect the “independent and actual existence of the child before birth.” Eight years later, the Medical Society of New York called abortion at any stage of the child’s life “murder.”

This and much other evidence shows that “a general consensus treated preborn human beings as ‘persons.’ … [T]he preborn were included within the public meaning of the term ‘person’ at the time the Fourteenth Amendment was adopted.” Therefore the amendment itself considers the unborn to be persons with the right to life.

A New Birth of Freedom

States that allow abortions violate the Constitution, Craddock declares in his conclusion. “Congress or the courts must intervene.” For example, if a state allows the unborn to be killed but prosecutes the murderers of other groups of people, it denies the unborn the equal protection of the laws. A higher authority must act to protect the lives of the unborn.

If Craddock is right, the Supreme Court may finally base its rulings on what the Constitution assumes about the unborn. “The Fourteenth Amendment,” Craddock concludes, “was to be a new birth of freedom for all human beings.”

The Stream will be publishing an “In Depth” story giving the argument in more detail.