Unfortunately, every single Justice who has ruled on Abortion since Roe -- including Antonin Scalia -- has stated that the Unborn are NOT "Persons" under the 14th Amendment.
The U.S. Constitution Amendment Fourteen, Section 1, begins with “All persons born….” No need to proceed beyond the word ‘born’ to know that the Right to Life Act of 2005 will be aborted by the U.S. Supreme Court. The Right to Life Act of 2005 would have to be an amendment to the U.S. Constitution, before the U.S. Supreme Court would even consider acknowledging the text. Republicans and pro-life organizations supporting this bill know this to be a fact. The Fifth Amendment will be interpreted in view of Amendment Fourteen, Section 1, “All persons born,” rather than adding the unborn as persons via the Fifth against the States via incorporation of the Fourteenth.
Paul Benjamin Linton is an attorney who specializes in pro-life litigation and legislative consulting, and has served as General Counsel of Americans United for Life. He wrote “How Not To Overturn Roe v. Wade,” 2002 First Things 127 (November 2002): 15-16.
The argument will be made that the recently appointed Roberts, and the probable appointment of Alito will change that fact. Who will convert Scalia, who stated:
In the 1997 case of Alexander v. Whitman, Alito stated that Kaylyn Alexander was not a "person" under the U.S. Constitution as interpreted by the Supreme Court in Roe v. Wade: "I agree with the essential point that the court is making; that the Supreme Court has held that a fetus is not a 'person' within the meaning of the Fourteenth Amendment."
The Right To Life Act must overcome four obstacles for a nationwide ban on abortion. We The People Act & The Sanctity of Life Act need only overcome three obstacles for a partial ban on abortion. ( “30 States Ready to Outlaw Abortion,” Tuesday, October 05, 2004, FOXNews.com http://www.foxnews.com/story/0,2933,134530,00.html ) They omit the SCOTUS obstacle. These bills should be less resisted than a nationwide ban, and should be easier to pass. They return the issue to the States where it was prior to federal court intervention in the early ‘70s.
Anyone supporting The Right to Life Act needs to include one of two LARGE, BOLD DISCLAIMERS:
Unless Hunter's Bill includes the language from Ron Paul's Sanctity of Life Act removing the issue from Federal Court jurisdiction, the Right to Life Act will be struck down by SCOTUS immediately upon passing the Congress.
At least Ron Paul's Bill, by returning Authority to the States (in which it was Constitutionally vested originally) offers the chance for Abortion to be outlawed by at least 30 States, and removes the Federal jurisdiction to strike down those State laws. Hunter's Bill, by leaving the Federal Courts "in the loop", would be struck down by SCOTUS immediately -- and so would accomplish exactly NOTHING.
The Supreme Court has ruled that, following the Roe precedent, the word “person” under Section 1 of the 14th Amendment does not include unborn babies. What Congressman Hunter’s bill (which is a new version of Senator Jesse Helms’s bill from the 1980s and which in turn was a new version of Senator Buckley’s bill from 1973) does is to use Section 5 of the 14th Amendment, which provides that Congress may enforce the amendment through legislation, to make clear that the word “person” in Section 1 includes unborn babies and that it would be a federal crime for a state to abridge such person’s right to life without due process of law. Justices Scalia, Thomas, Alito and Roberts will almost certainly rule that Congress may use Section 5 of the 14th Amendment to enforce the provisions of Section 1 of the 14th Amendment, since that’s what the clear text of Section 5 says. I have no idea how Justice Kennedy would vote, but it’s definitely worth a try.
Paul’s bill would remove federal court jurisdiction on abortion cases at a time in which the Supreme Court precedents provide for abortion on demand until the moment of birth (while it allows states to impose certain restrictions, none may be placed if the health of the mother, including her mental health, may be affected). If federal courts are blocked from hearing any abortion cases, Roe v. Wade and its progeny will never be overturned and you will still have courts in most of the 50 states claiming that there is a right to abortion under the U.S. Constitution. If the U.S. Supreme Court overturns Roe v. Wade, then and only then would Paul’s bill actually be helpful to the pro-life cause, since it would not allow future federal courts to bring back Roe and since there would not be any federal pro-abortion precedent that state laws may follow, but right now Paul’s bill would be foolish.