Personhood After <i>Dobbs</i>

Following the Supreme Court’s decision to overturn Roe v. Wade in 2022, unsettled questions remain about the constitutional status of unborn children. With good reason, Dobbs v. Jackson Women’s Health Organization did not address whether unborn children are persons within the original meaning of the Due Process and Equal Protection Clauses. The historical evidence, however, is now well-established that when the Fourteenth Amendment was ratified in 1868, the word “person” had a settled public meaning that included every human being—children in the womb among them. And if unborn human beings were included within the original public meaning of “person” in 1868, then the Fourteenth Amendment’s guarantees of due process and equal protection to “any person” must extend to unborn human beings. The question of prenatal personhood, then, is likely unavoidable after Dobbs. This Article considers what a path toward resolving that question might look like. Part I explains why the majority’s opinion in Dobbs is consistent with and even favorable toward a future constitutional rule securing the equal protection of the laws to unborn children. Part II responds to common practical objections to personhood and shows why recognition of prenatal personhood would restore the traditional consonance of Anglo-American law relating to fetal rights, not disrupt it. Part III addresses the role that each branch of the federal government may play in recognizing constitutional equal protection for unborn persons—such as through Section 5 enforcement legislation, executive order, or judicial decision.