In this piece, Catherine Glenn Foster (James Wilson Fellow 2016), Chad Pecknold, and Josh Craddock (James Wilson Fellow 2019) explore a way in which a pro-life president could protect the right to life of prenatal persons through an executive order. The executive branch – being co-equal to the legislative and judicial branches – also has a duty to develop and act upon their own interpretation of the Constitution within the domain of the executive branch. Acting upon that interpretation, a pro-life president can issue an executive order which would effectually extend Fourteenth Amendment protections and the rights of every other person in America to prenatal persons. Presidents Jefferson, Jackson, and Lincoln all established precedence for this idea through similar practices during their presidencies.
Some excerpts from this article:
Relying on his constitutionally prescribed oath and his Take Care Clause interpretative authority, the president should fulfill his duty to faithfully execute the guarantees of the Fourteenth Amendment to the Constitution by issuing an executive order recognizing preborn persons as constitutional “persons” entitled to due process and equal protection of the laws. Such an executive order would set a precedent that all pro-life presidents would be expected to follow and build upon.
Abortion within the Anglo-Saxon common-law tradition was prohibited as soon as prenatal life could be detected. By the time the Fourteenth Amendment was ratified in 1868, the states widely recognized preborn children as “persons.” Twenty-three states and six territories referred to the preborn human being as a “child” in their anti-abortion statutes. Twenty-eight listed abortion among statutory “offenses against the person” or a functionally equivalent classification. In a particularly striking example, the same Ohio legislature that ratified the Fourteenth Amendment in January 1867 passed legislation criminalizing abortion at all stages and declaring that abortion “at any stage of existence” is “child-murder.”
An executive order from the president could give legal effect to the proclamation first announced by President Reagan over three decades ago. Such an order would constitute a binding and authoritative interpretation of the Constitution within the executive branch, including its constitutive departments and agencies. The president could direct departments and agencies to examine their regulations and programs to ensure they align with the president’s executive order, and to initiate rulemaking or issue guidance bringing those regulations and programs into compliance with the president’s interpretation as necessary.
But this is just the beginning: such an executive order provides a rationale for the federal government to protect preborn children in every state. Americans need not accept an interminable status quo of indifference toward the rights of the child, due either to the timidity of our political elite or to the presumption of our judiciary class. An executive order would be the culmination of earlier presidential actions to guarantee constitutional protections to all human beings, following in the footsteps of President Lincoln in the aftermath of Dred Scott.
Read the complete article here.