A new anti-abortion argument was proposed in the House last week by Rep. Doug Lamborn (R-CO) that use the equal protection clause of the 14th Amendment to argue that children in the womb deserve personhood status under the Constitution.
H.Res. 464, introduced on June 5, flips the conventional pro-abortion invocation of the 14th Amendment on its head. While legal scholars and pundits have attempted to use the 14th Amendment to argue that anti-abortion legislation is sex-based discrimination, Lamborn and his 19 other colleagues who have already signed on to the bill contend that equal protection ought to apply to all persons — including the unborn.
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Rather than a complete national abortion ban, the proposal lays the philosophical groundwork for future national-level anti-abortion legislation, stipulating that all humans “at every stage of development before birth have moral and legally protectable interests in life, health, and well-being.”
Citing the Declaration of Independence, the Preamble of the Constitution, and the ratification debates on the 14th Amendment, the bill defines an “unborn person” as a “human being, from fertilization, throughout pregnancy until live birth, including the human conceptus, zygote, morula, blastocyst, embryo, and fetus.”
The text also clarifies that providing lifesaving treatment to a mother, such as the removal of an ectopic pregnancy, is different from an elective abortion or a pro-abortion right to choose.
The 14th Amendment not only prohibits states from limiting the rights of U.S. citizens but also forbids states from depriving “any person of life, liberty, or property, without due process of law” or denying “any person within its jurisdiction the equal protection of the laws.”
“Thankfully, the wise drafters of the amendment deliberately chose expansive equal protection language that applied not only to the freedmen living [in the Reconstruction era] but to ‘any person,’” explained Lamborn in an interview with the Washington Examiner.
The 14th Amendment was adopted in July 1868, and at the time, “the term ‘person’ had an established public meaning that included any living child in the womb,” according to Lamborn, citing legal treatises that recognized the equivalence between biological and legal personhood.
Lamborn, who earned his law degree from the University of Kansas School of Law in 1985, has served in the House since 2007. During his terms in the Colorado state legislature and in Washington, Lamborn has earned a 100% rating from the National Right to Life Committee and is an active member of the Pro-Life Caucus and Values Action Team.
Lamborn told the Washington Examiner that the abortion landscape in contemporary America parallels the legal context in combating the violence against freedmen in the former Confederacy after the Civil War because “certain states have enacted radical abortion laws that deny equal protection to a disfavored class — children in the womb.”
The role of the federal government in abortion after the overturning of Roe v. Wade is a hotly contested issue that will be a defining feature of the 2024 Republican Primary.
Presidential hopeful Sen. Tim Scott (R-SC) expressed in April that a federal ban on third-trimester abortions is feasible but “states have to solve that problem on their own” for tighter restrictions. South Carolina’s other presidential contender, Nikki Haley, said in May that a federal abortion ban is “unrealistic” and that any feasible anti-abortion legislation will need to be enacted on the state level. Both Gov. Ron DeSantis (R-FL) and former President Donald Trump have sought to avoid the question of national-level abortion legislation during the early days of campaigning.
Despite the logistical challenges, Lamborn argues it is a moral question strongly analogous to slavery in the 19th century.
“Anyone who believes that murder or slavery is immoral must certainly agree that these decisions must not be left on a state-to-state basis,” Lamborn said. “The constitutional right to life applies to all Americans and should not be dependent on where they live.”
When asked about the state-rights logic of Dobbs v. Jackson Women’s Health Organization, decided in June 2022, Lamborn cited Abraham Lincoln’s argument that any denial of human rights is inherently illegitimate even if democratically instituted.
“The equal protection clause of the 14th Amendment was designed to withdraw [the question of discrimination] from democratic majorities and to ensure that equal rights under the law would be protected for every human being,” Lamborn said.
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Although the resolution is in its earliest stages, Lamborn was optimistic about the anti-abortion efforts moving through the legislative process.
“Leader McCarthy promised the American people that an ambitious pro-life agenda would be a top priority this Congress. I hope that this legislation can be part of a larger pro-life package,” Lamborn said.
Correction: A previous version of this story misidentified H.Res. 464 as a bill rather than a resolution. The Washington Examiner regrets the error.
