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The Patron Saint of Superheroes

Chris Gavaler Explores the Multiverse of Comics, Pop Culture, and Politics

According to Justice Kavanaugh: “The Constitution’s neither pro-life or pro-choice on the question of abortion, but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.”

The first half of that sentence is true in the literal sense: abortion is mentioned nowhere in the Constitution.

However, since the determining question is whether zygotes, embryos, and fetuses have rights under the U.S. legal system, the Constitution does speak on the issue.

Article 1, Section 2 establishes the national census: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

So, for the purposes of determining population, the authors counted free people and indentured servants equally, and enslaved people unequally. Since enslaved people were considered the property of their owners, it might seem illogical that they would be counted at all, but without the Three-Fifths Compromise, the 1787 Constitutional Convention would likely not have produced a constitution.

Note what is missing from the state’s “respective Numbers”: zygotes, embryos, and fetuses. Any of the Convention delegates, either northern or southern, could have stipulated that pregnant women be counted twice—or perhaps one and three-fifths or some other additional fraction. No one suggested that. All agreed on the implicit minimum requirement of being counted as a “Number”: you must be born.

“Numbers,” however, do include undocumented immigrants, people who conservatives often dehumanize with the noun “illegals.” The U.S. Census Bureau is explicit: “all people (citizens and noncitizens) with a usual residence in the United States are included in the resident population for the census.” The Trump administration attempted to alter that standard for the first time in U.S. history, but a panel of judges blocked the executive order, and the Supreme Court refused the appeal. Yet as far as I’m aware, no one has ever argued that zygotes, embryos, and fetuses of undocumented immigrants should be counted in the census.

Next consider the Fourteenth Amendment. It begins: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States ….” Conservatives call that “birthright citizenship,” and they want to rescind it. Senator Lindsey Graham said in 2010: “We should change our Constitution and say if you come here illegally and you have a child, that child’s automatically not a citizen.” In a 2016 Federalist Society essay, Gerald Walpin argues that birthright citizenship misconstrues the intent of the Amendment, citing two non-binding Supreme Court opinions that draw the same conclusion.

No one, as far as I’m aware, has ever taken issue with the word “born.” No one has suggested that the Amendment includes or should be amended to include zygotes, embryos, and fetuses. If life begins at conception, then zygotes are people, and if a zygote is conceived in the U.S., it would also therefore be an American. If “life” begis at conception, then citizenship must begin at conception too. The pro-life argument requires either reinterpreting or amending the Fourteenth Amendment to include “conceptionright citizenship.”

Alternatively and more logically, the Fourteenth Amendment’s use of “born” intentionally excludes zygotes, embryos, and fetuses. Since Article 1, Section 2 also intentionally excludes zygotes, embryos, and fetuses, the Constitution has a great deal to say about abortion.

Constitutionally, zygotes, embryos, and fetuses are not “unborn people” because they are categorically not people. They are not born and so are not residents, let alone citizens of the U.S. They are not even “temporary visitors” or “foreign nationals,” and so none of Department of State’s Bureau of Consular Affairs’ policies apply either. Zygotes, embryos, and fetuses do not receive visas, but: “All travelers, including children, need a visa to travel to the United States … There must be a separate visa for the child, even if they are traveling on their parent’s passport.”

Because zygotes, embryos, and fetuses are not citizens or residents or foreign travelers, they have no rights. They are not entities: things with distinct and independent existence. Yet pro-life advocates argue that the non-existent rights of legally non-existent so-called “unborn” non-entities outweigh the actual rights of actual people who reside in and are citizens of the U.S.

The core of the pro-life claim is unconstitutional.

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