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By John Finnis, First Things, 4 . 9 . 21

John Finnis is the Biolchini Family Professor of Law Emeritus at the University of Notre Dame.


Are there sufficient reasons for the Court to hold that the unborn are persons within the meaning of the equal protection clause of the Fourteenth Amendment? Edward Whelan continues to doubt it. He also questions whether such a holding would have much legal effect. To these doubts he adds finally the view that the equal protection argument ought not to play much of a part in “pro-life legal strategy.”

Since questions of strategy have not been my concern, I will continue to say nothing about them, save that any strategy about anything should be aligned with the truth; my first and second essays together argue that there are here two truths converging on the same result. (1) The original public meaning of “any person” in the equal protection clause includes the unborn, as began to be judicially acknowledged and enforced almost as soon as intrusive limitations on the meaning of that clause’s “deny . . . equal protection” fell away in the 1950s and, coincidentally, the unborn began in the 1960s (for the first time in the United States) to be clearly denied equal protection. (2) That legal-constitutional position, annihilated by Roe v. Wade in a maelstrom of factual error and bad argument, corresponds to the facts about the unborn, and their place in any rationally defensible scheme of justice—a place which, given their situation and circumstances, is not simple but ought not to be denied by simply conferring on those in a position to destroy them the lawful authority to do so. …

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