For all their differences, it is clear that President Joe Biden and former President Donald Trump agree that the unborn are not — and should not — be federally protected. Though President Trump has objected to Florida’s and Arizona’s recent statewide protections for the unborn, he notionally argues that abortion is a state government matter rather than a federal one. President Biden goes even further than Justice Harry Blackmun’s argument in Roe. v. Wade. Biden argues that neither federal nor state governments have the authority to legislate against abortion. But it can be argued that Trump and Biden have already sworn an oath to protect America’s unborn babies. So has every president since Ulysses S. Grant.
The Presidential Oath of Office
You may wonder, “When did they take such an oath?” The answer: Immediately before holding office. As spelled out in the United States Constitution, a person may not hold office until he or she takes the Presidential Oath of Office. It reads as follows:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
It is important to note that presidents do not swear to love, like, or even agree with the Constitution. They do swear to “preserve, protect and defend” the Constitution. Of course, this oath includes all the amendments to the Constitution, beginning with the first 10 amendments, commonly referred to as the “Bill of Rights.”
The term “cafeteria Catholic” has been used to describe those persons who accept some commandments and dogmas, but deny or simply ignore those they find uncomfortable. A similar moniker may be applied to a man or woman who embraces some parts of the Constitution but jettisons others. Taking the presidential oath of office constitutes a solemn refusal to become a cafeteria president: for instance, a person who affirms the Second Amendment, but denies the 10th.
And this discussion leads us to the 14th Amendment.
The 14th Amendment
The 14th Amendment was ratified in 1868. From then on, the presidential oath of office included preserving, protecting, and defending the 14th Amendment. Of course, the presidential oath also included the recently ratified 13th Amendment, which constitutionally and federally outlawed slavery. That amendment reads:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
It is clear from the amendment that slavery is constitutionally outlawed. No state can legalize slavery; it is not a state matter, but rather a federal one.
Returning to the 14th Amendment, this reads:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Since persons cannot be deprived of the most basic right to life, it necessarily follows that if an unborn baby is deemed a person, then he or she would be federally protected by the 14th Amendment. Further, no state could override that federal protection. This point is so clear that even Justice Blackmun, author of the majority decision in Roe v. Wade, agreed with it. In his 1973 decision, Blackmun writes, “If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.”
Sadly, Blackmun failed to cite easily obtainable definitions of “person” (including dictionaries contemporary with the year of adoption of the 14th Amendment), so Blackmun looked within the Constitution for some insight into the nature of personhood. Regarding these references to the word, Blackmun — in a textbook example of the logical fallacy of begging the question — writes, “None indicates, with any assurance, that it [the word “person”] has any possible prenatal application.”
But this prompts the question: Did the framers of the 14th Amendment believe that an unborn baby is a person?
What is a Person?
In a 2017 article in the Harvard Journal of Law and Public Policy, Joshua Craddock clarifies that the framers’ language and intention included the unborn. Craddock writes, “When the Amendment was adopted in 1868, the states widely recognized children in utero as persons. Twenty-three states and six territories referred to the fetus as a ‘child’ in their statutes proscribing abortion. At least twenty-eight jurisdictions labeled abortion as an ‘offense[] against the person’ or an equivalent criminal classification.”
The very states that ratified the 14th Amendment had in-depth laws that treated the unborn as persons. Not only were the unborn guaranteed the right to life, but also the legal right to property rights and inheritance rights in wills and estates. Craddock writes, “If the Due Process Clause protects unborn children’s representational rights in a probate hearing, should not a preborn child be even more entitled to due process to secure her life?” Craddock cites the famous legal scholar John T. Noonan, who observes that “it would be odd if the fetus had property rights which must be respected but could himself be extinguished.”
Many centuries ago, the Roman philosopher Boethius offered that “person” should be defined as: “an individual substance of a rational nature.” Regarding human persons, this simply means that a person is one distinct being that belongs to a species that is capable of using logic and reason. Whether or not American legislators have been aware of this definition, the fact remains: A plethora of American laws reflected the personhood of the unborn. As Craddock observes, the original intent of the U. S. Constitution’s 14th Amendment included the protection of the unborn.
A President’s Oath Is an Oath to Protect the Unborn
It is true that the states have the latitude in determining particular criminal penalties for doctors who perform abortions. But just like the 13th Amendment disallows returning slavery to the states, the 14th Amendment prevents the entire notion of returning abortion to the states where the constitutional right to life could be voted down by democratic fiat.
Despite the evidence outlined above, there are those who will object to the idea that the presidential oath is an objective oath to protect the unborn. But we all should be able to agree on the following as a matter of logic: For a president to determine that abortion is a state’s right issue, and not a federal one, he is saying that personhood is not achieved in the womb. Because if the unborn baby is a person, abortion is, therefore, a federal issue that cannot be “returned” to the states for approval. Again, even the author of Roe v. Wade recognized that inescapable reality.
Thus, it is fair to ask — and it is essential for every presidential candidate to answer — the following questions: In your mind, when does personhood begin? The 14th Amendment specifically talks about persons, so you are taking an oath to protect the rights of persons. If you do not think that personhood is achieved in the womb, when is it?
To swear the American presidential oath is to take a serious oath before God to do the most serious political job in the world. This means that even voting is a serious duty. American citizens have a right to know the candidates’ answers.
