Earlier this week, the Republican Party released its 16-page “Make America Great Again” policy platform ahead of its national convention. As many news outlets pointed out, it did not explicitly call for a national abortion ban. Instead, it said that the party supports states establishing fetal personhood through the constitution’s 14th Amendment.
“We believe that the 14th Amendment to the constitution of the United States guarantees that no person can be denied life or liberty without due process, and that the states are, therefore, free to pass laws protecting those rights,” the agenda read. Some media outlets reported this as if the GOP had “softened” its stance on abortion or that it “backed away” from an abortion ban.
But legal experts tell Salon this isn’t the case. Instead, the party is still advocating for a national abortion ban — they are trying to conceal it using different language.
“This is nothing more than a national abortion ban — not to mention a ban on birth control and IVF — hidden in plain sight,” Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, told Salon in a phone interview. “They're using language suggesting that they will lead the issue to the states because they know how unpopular banning abortion and other forms of reproductive health care is, and so they're trying to conceal and mislead the public.”
The voters should avoid falling for it, she emphasized.
“The key to their true agenda here is the suggestion that the 14th Amendment of the federal constitution somehow empowers states to ban abortion,” Kolbi-Molinas said. “They are signaling that embryos and fetuses are persons under the 14th Amendment, which is simply not true. And if that were the case, if embryos and fetuses had constitutional rights under the due process clause, states would be required to ban abortion.”
The 14th Amendment grants citizenship to all persons "born or naturalized in the United States” and provides citizens with “equal protection under the laws.” If fetuses and embryos were included in this, states that have already enshrined abortion rights into their state constitutions, such as California, would still have to pass abortion bans. This is because the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.
“Under this platform, states would be forced to ban abortion, and state laws protecting abortion, including those who have been passed recently by ballot through direct democracy, would be challenged and overturned,” Kolbi-Molinas said. “And it’s not just abortion, giving constitutional rights to embryos and fetuses that override the rights of the pregnant person — which is what they would seek to do here with the 14th Amendment — that also leads to bans on birth control, on IVF and on other forms of reproductive health care.”
David S. Cohen, a professor of law at Drexel Kline's School of Law, told Salon he agreed.
“It would be unconstitutional for a state to allow abortion because now you are denying that person the equal protection of the law and due process of the law,” Cohen said. “The idea that the 14th Amendment protects a fetus or embryo, or fertilized egg would be effectively a national abortion ban — and that's a constitutional abortion ban, not just the statutory one.”
A statutory abortion ban can be overruled by a majority of Congress. If it's a constitutional requirement to ban abortion, then the only thing that can reverse it is to add an amendment to the Constitution or to get a different set of justices on the Supreme Court. How would a Republican administration be able to apply the 14th Amendment to embryos and fetuses though?
“It would come from a court; it would come from an interpretation of the constitution,” he said. “It certainly wouldn't be an originalist interpretation, because certainly the founding framers, and whether it's you know, the original constitution of the 14th Amendment, knew nothing about embryology and fertilization of eggs and sperm.”
But anti-abortion advocates are pushing this interpretation nonetheless, Cohen said.
“I think it's their holy grail,” he said, adding that it wouldn’t just be abortion being banned. IVF, he said, would be threatened or “probably banned.” Contraception would be “suspect” and “possibly murder.” Miscarriages and stillbirths would be investigated. Anything that might be considered to be the possibility of a fertilized egg reaching its demise could be a “crime scene.”
“To think that a political party that has been so focused on banning abortion as broadly as possible for decades is actually changing its mission is foolish,” Cohen said. “They may be trying to mask their position given the electoral politics, but they aren't changing anything.”
