Abortion Is Unconstitutional and Not a State Issue

By David Bjornstrom — We concede too much in assuming that, if Roe vs. Wade is overturned, the individual states should decide whether or not to outlaw abortion. If unborn babies are “persons,” as modern science shows, the 14th Amendment outlaws abortion, since abortion deprives a class of persons of their life without due process of law and without equal protection. It is time to reclaim the 14th Amendment for the unborn.


Reprinted with permission from the author and Catholic Business Journal

There is a common misconception that if the Supreme Court overrules Roe vs. Wade, abortion will be outlawed. Unfortunately, that is not the case. Many, if not most, of the individual states would still allow abortion, absent a nationwide ban. This would not put the issue to rest, just as state-by-state rules on slavery did not work before the Civil War.

The legally correct answer may be found in the 14th Amendment to the Constitution which says that no person shall be deprived of life, liberty, or property without due process of law, nor denied the equal protection of the laws. The 14th Amendment was enacted in 1868 mainly to protect African Americans, but the wording and intent was broader than that, extending to all persons.

The author of the Roe vs. Wade decision, Justice Harry Blackmun, admitted in the Court’s formal opinion that if the fetus is a person, the case for abortion would collapse, and the right to life would be guaranteed specifically by the 14th Amendment. Now, almost 50 years later, modern science is, in fact, showing what we knew intuitively all along, that the unborn baby is a new, genetically distinct human person from the time of conception.

While the unborn baby’s personhood should be obvious to anyone who has heard its heartbeat or seen it on an ultrasound machine, the Supreme Court seems to divide itself more on ideological grounds than in doing its job to interpret the Constitution. Supreme Court Justice Byron White, one of the dissenters in Roe vs. Wade, described the majority opinion in that case as an “improvident and extravagant exercise in raw judicial power,” not an honest exposition of the Constitution.


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David Bjornstrom is a Santa Rosa, CA-based attorney with 36 years specializing in business, estate, and tax law. He serves in various pro-life, elder-focused, and homeless outreach ministries. David and his wife has six children, including two adopted from China, and 10 grandchildren.

5 Comments on “Abortion Is Unconstitutional and Not a State Issue

  1. Thank God for the well-done piece. by Attorney Bjornstrom. Many of us have been saying this for years as the true core of the decision is ignored. Blackmun admitted this himself, and I was introduced to the Chief Justice by Phyllis Schlafly at the celebration of the ratification of our constitution in N.H.
    I did not hear him say it that day, but have heard that he only agreed to Roe to give it weight with the 7- 2 decision. The personhood of the pre-born was not allowed, and that is how 62 million-plus have been denied the light of day.
    How much longer? God help us as a nation created in His name.

  2. Abortion should be primarily a state criminal justice issue, but if the states fail then the federal government should interpose to protect the babies.

  3. So many people, over the past 50 years have been fighting to justify the “what” – what we are fighting for, which is the “right to life”. But too few of these zealous workers are asking the most important question:
    “Why?” “Why does a human have a ‘right to life’?” The answer. Personhood. Persons have rights. Person’s are “who’s”, and not “what’s” and a “who” as a person has rights. Equal rights, equal protection under the 14th Amendment. What we see in Roe is judicial tyranny, a branch of government exercising authority that it Constitutionally has not been given. Congress makes law, SCOTUS offers opinions. Roe dissenter, Supreme Court Justice Byron White, described the majority opinion in that 1973 case as an “improvident and extravagant exercise in raw judicial power,” not an honest exposition of the Constitution.

  4. “The 14th Amendment was enacted in 1868 mainly to protect African Americans, but the wording and intent was broader than that, extending to all persons.”
    This isn’t true. The author should check out “Government by Judiciary: The Transformation of the Fourteenth Amendment.”
    The reason that abortion can’t be permitted is because it is a form of murder and murder is against the natural and positive law. So what we have is a “conflict of laws” situation. The just law against murder is alongside a presumed exception that was “created” by Roe v. Wade.
    That a person is a person no matter how small is determined by theology. The soul – which makes a human being – is joined to the body at conception, and so there is a person from conception until death.

    • I think the 14th Amendment codifys what you are saying , a very important step in law and order