Fetal Personhood and the Original Meanings of 'Person' in the Constitution

Abstract

The Fourteenth Amendment guarantees to all persons the equal protection of the laws. The question with which this Article is concerned is whether the unborn are within the extension of the original meaning of person in the Equal Protection Clause of the Fourteenth Amendment. I argue that this depends on whether the original ordinary or legal senses of person is controlling. If the former, then the legal personality of the unborn is secure. That is far less clear if the original meaning of person is the original common-law meaning of person. I argue that the common law generally denied legal personality to the unborn (although the evidence is mixed).