In the current budget crisis, how about stopping taxpayer-funded abortions in Minnesota? Since 1994, Minnesota has spent an estimated $6 million for more than 24,000 abortions.
In 1994, Hennepin County District Court Judge William Posten purported to find a privacy right to abortion in the Minnesota Constitution. This decision was upheld in the infamous 1995 Minnesota Supreme Court decision Doe v. Gomez, which allowed taxpayer-funded abortions in Minnesota. Attempted appeals to higher courts, including the U.S. Supreme Court, were dismissed. Thus, we are now one of the most radical pro-abortion states in the nation.
Regarding the U.S. Constitution and the Minnesota Constitution that is based on it, a very different reading and result from Gomez can be reached. The U.S. Supreme Court purported to find a substantive due process right to abortion based on privacy. Why not turn the argument around and find a substantive due process right to life for unborn children based on the expressed and implied rights of life, liberty and property in the 14th Amendment?
The 14th Amendment states, “All persons born or naturalized in the United States … are citizens of the United States and of the State wherein they reside. No State shall … 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.”
The 14th Amendment substantive due process protection should apply to unborn children. The 14th Amendment speaks of citizenship for “persons born or naturalized” which by implication recognizes other persons who are not born or naturalized.
The 14th Amendment clearly specifies no state shall “deprive any person of lifeÖwithout due process of law”; it does not limit this protection to citizens but rather applies it to the broader context of persons. Certainly no one would argue a nonresident alien visiting the United States could arbitrarily be deprived of his or her right to life. Neither should the unborn be arbitrarily deprived of theirs.
A more expansive reading of personhood and citizenship is the more humane and progressive approach in viewing the Constitution. We no longer restrict citizenship rights to wealthy, white, educated, property owners. We no longer deny women the right to vote or own property. We no longer treat blacks as slaves.
We have expanded and broadened the horizons of who deserves protections and rights. We have all been enriched and ennobled by the contributions of blacks and women under the growing umbrella of full citizenship and full personhood under the law.
The Ninth Amendment was also used as a rationale for abortion. In line with some of the arguments above, it too can be turned around to favor a right to life for unborn children. It states, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
If the right to life is “unalienable,” as the Declaration of Independence puts it, it is a fundamental right retained by the people. This is a right so basic it cannot legitimately be abrogated by any government without just cause. Various international treaties and U.N. declarations also reflect and advance this primary truth.
My late grandfather, Minnesota Supreme Court Associate Justice Frank T. Gallagher, and his brother, the late Chief Justice Henry Gallagher, would both be appalled at this inhumane decision of the Minnesota Supreme Court, a court on which they were once proud to serve. Let’s work to end taxpayer-funded abortion in Minnesota.
Michael Gallagher is an attorney and University alumnus. Please send comments to [email protected].
