Will the Supreme Court Recognize the Humanity of the Preborn?

By: Dr. Steve Jacobs

Last summer, Illinois Right to Life was honored to have issued one of the eight briefs that urged the Supreme Court to agree to hear the case in Dobbs vs. Jackson Women’s Health Organization and to uphold Mississippi’s 15-week abortion ban. On Thursday, we once again filed a brief urging the Court to uphold that law and overturn Roe v. Wade’s viability standard—which prevents states from protecting previable, preborn humans from abortion.

First, before I give you a sense of how the Court might rule in this case, let me explain what is at issue. Right now, states cannot protect preborn humans for the first 24 weeks of their lives. This is because the Roe Court established a constitutional right to abortion; in cases involving laws that interfere in constitutional rights, the Court uses the “strict scrutiny standard of reviewing laws” and only permits such laws when they serve some compelling state or government interest. The Court then considered when a state’s interest in protecting life is compelling but, since it could not determine when a human’s life begins, it used viability as a proxy and determined that a state’s right to protect viable, preborn humans outweighs any possible right to abortion.

So, the Court in the Dobbs case is squarely challenging the viability standard since they took the case to answer the following question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional”. Most analysts predict that the Court will take one of the two following paths if it decides to answer that question “No” and upholds the 15-week abortion ban:

(1) Return Abortion to the States: The Court can decide that it was wrong in Roe when it established a right to abortion. If it does, then the Court would not have to follow the “strict scrutiny standard of reviewing laws” and it would use the “rational basis standard of reviewing laws”, which upholds any law that is rationally related to a legitimate government purpose. Since the Roe court found that protecting life is an important and legitimate interest, then Mississippi’s law and all other abortion laws that protect preborn humans would be upheld as constitutional. Basically, the Court would step aside and return abortion to the states by letting states pass whatever laws they prefer. This is the path many believe that the Court will take.

(2) Fetal Rights: The Court can ignore the issue of abortion rights and look to whether the preborn have constitutional rights, as the Roe Court said that the case for abortion rights would collapse if fetal rights are established. Since several of the justices who wrote the majority opinion in Roe have said that fetal rights would be constitutionally guaranteed if it is shown that the preborn are humans, the Court would simply need to hold that a human’s life begins at fertilization so the preborn are humans guaranteed equal legal protections. Why? The Fourteenth Amendment to the U.S. Constitution is recognized to protect all “weak and helpless human beings”. This would not just permit Mississippi’s law, but it would actually require that each state ban abortion throughout pregnancy. This would obviously be great for Illinois, but there isn’t a lot of evidence that the Court would be willing to recognize fetal rights, as the Court still hasn’t even recognized the preborn as humans. 

However, in the Illinois Right to Life brief, we advance a lesser-known, or perhaps even unknown, third path. 

The Court would need to hold that the viability standard is no longer appropriate since it was based on the Court’s inability to find consensus on when a human’s life begins, but today recent developments have shown that there is a biological consensus that shows a human’s life begins at fertilization. The Court could then use this consensus to show that a state’s interest in protecting life is at fertilization. This is so because the Fourteenth Amendment guarantees equal protection to all humans and, at fertilization, the preborn are humans. As the brief argues: “Effectively, the viability standard not only violates the rights of preborn humans but also forces states to violate the rights of the preborn.” If the viability standard is replaced by the fertilization standard, the Court would still return abortion to the states—as just finding that a state can restrict abortion access at fertilization does not mean that it would be required to. However, while this path might seem similar to the first path, the two would likely have drastically different results.

Imagine an Illinois legislator who seeks to reform our abortion laws to protect preborn humans at fertilization. If the Court followed the first path and simply returned abortion to the states after invalidating Roe’s right to abort, then the legislator could only argue that there is no right to abortion; he or she would then have to make the case for why a preborn human’s life is protectable before birth, before viability, and at fertilization—this would be especially difficult since Illinois’s insidious Reproductive Health Act, signed into law in 2019, actually stated that the preborn have no rights. 

On the other hand, if the Court follows the third path, our legislator could take the floor and simply explain that the law is justified while citing the fact that Court already found that Illinois has a compelling interest in protecting preborn humans at fertilization. Armed with an endorsement from the Court, Illinois’s Reproductive Health Act and its extreme abortion laws could then collapse under the weight of the Court’s judgment and authority. 

While the first path would clear the table and force us to start from scratch, and the second path would immediately transform our anti-life laws to full protections for the preborn, the third path would set a strong precedent that would give us a huge leg up in winning Illinois for life and overturning the RHA and our extreme abortion laws. 

If you are wondering just how extreme our laws are, consider the fact that abortion is guaranteed in Illinois for the first 24 weeks and that a woman can have an abortion for practically any reason after that, including factors such as her age and whether she is having financial troubles. Consider all of that in the context of our brief’s description of abortion laws around the world:

“130 countries ban abortion at fertilization and 64 countries ban abortion at some point at or after fertilization but before viability. The U.S. is joined only by Canada, China, Guinea-Bissau, the Netherlands, North Korea, Singapore, and Vietnam as the only countries that do not restrict abortion before viability. Thus, out of 202 countries, 194 ban abortion at some point between fertilization and viability (96%) while America is one of only 8 countries that do not ban previable abortions (4%). Since 64% of countries ban abortion at fertilization, most recognize that there is no right to have an elective abortion after a preborn human’s life begins.”

While our brief focuses on the rights of the preborn and the fact that there is now scientific consensus that life begins at conception, we must also remember that Illinois’s abortion laws are incredibly dangerous for women. In our state veterinary clinics face stricter health standards than abortion clinics. Coroners are no longer called if a woman dies at an Illinois abortion clinic. Abortion is incredibly dangerous for women in our state and is, of course, deadly for their unborn children. 

Although most legal scholars agree that the Court will return lawmaking on abortion to the states, ours is an argument that must be made. There is no doubt that a preborn child is fully human from the moment of conception. Our hope is that the U.S. Supreme Court will recognize this scientific fact and give preborn children the protection they deserve.

Read Illinois Right to Life’s amicus brief to the U.S. Supreme Court here.