Robert P. George calls for SCOTUS to declare fetal personhood in Mississippi case

[Greedo punched first]

He thinks there are five votes for fetal personhood. It is, however, unlikely the Mississippi case currently pending will be used to declare fetal personhood because it doesn’t address the personhood issue.

[True Federalist (진정한 연방 주의자)]

Not that I think there is any constitutional basis for or against fetal personhood, if one is going to try and argue the proposition, then the fact that the 14th Amendment sets birth and not conception as when natural-born citizenship begins, would very weakly argue against the proposition. At most, one might argue that the 14th augments rather than supplants the original citizenship clauses in the Constitution, leaving States free to recognize fetal personhood.

[Donerail]

Your link is not to Robert P. George's opinion, but to the Supreme Court's 404 error page. At any rate, George is arguing that in an amicus brief, not attempting to handicap the court's ruling.

[brucejoel99]

Not that I think there is any constitutional basis for or against fetal personhood, if one is going to try and argue the proposition, then the fact that the 14th Amendment sets birth and not conception as when natural-born citizenship begins, would very weakly argue against the proposition. At most, one might argue that the 14th augments rather than supplants the original citizenship clauses in the Constitution, leaving States free to recognize fetal personhood.

I think I've made this point on here before, but actually thinking about the fetal personhood argument's 14th Amendment implications for more than a second is just hilarious: the Court holding to a strict interpretation of the word "persons" within the Constitution so that it'd have to apply to unborn fetuses would mean that they'd be protected by the 14th Amendment, but given the Citizenship Clause's clarification that citizenship is only granted to people who are born in the U.S., such an interpretation would mean that fetuses - although people - would be stateless persons. It's legal insanity.

[SenatorCouzens]

Not happening. No justice has ever advocated for it, and Scalia himself explicitly rejected it.

Also, it would be totally unenforceable because it would be the Court telling states they need to prosecute and criminally sanction a large group of people.

Liberal states aren't going to criminally sanction abortion providers. It would be the equivalent of a liberal Supreme Court majority dramatically stretching the 14th Amendment protection of life to mean that individual ownership of guns is unconstitutional. Conservative states simply wouldn't enforce it.

[Greedo punched first]

Not happening. No justice has ever advocated for it, and Scalia himself explicitly rejected it.

Also, it would be totally unenforceable because it would be the Court telling states they need to prosecute and criminally sanction a large group of people.

Liberal states aren't going to criminally sanction abortion providers. It would be the equivalent of a liberal Supreme Court majority dramatically stretching the 14th Amendment protection of life to mean that individual ownership of guns is unconstitutional. Conservative states simply wouldn't enforce it.

Thomas and Gorsuch have. I imagine Alito supports it too.

[brucejoel99]

Not happening. No justice has ever advocated for it, and Scalia himself explicitly rejected it.

Also, it would be totally unenforceable because it would be the Court telling states they need to prosecute and criminally sanction a large group of people.

Liberal states aren't going to criminally sanction abortion providers. It would be the equivalent of a liberal Supreme Court majority dramatically stretching the 14th Amendment protection of life to mean that individual ownership of guns is unconstitutional. Conservative states simply wouldn't enforce it.

Thomas and Gorsuch have. I imagine Alito supports it too.

At best, Thomas merely hinted at it in his Box v. Planned Parenthood concurrence. Neither Gorsuch nor Alito have, though.

[Greedo punched first]

Not happening. No justice has ever advocated for it, and Scalia himself explicitly rejected it.

Also, it would be totally unenforceable because it would be the Court telling states they need to prosecute and criminally sanction a large group of people.

Liberal states aren't going to criminally sanction abortion providers. It would be the equivalent of a liberal Supreme Court majority dramatically stretching the 14th Amendment protection of life to mean that individual ownership of guns is unconstitutional. Conservative states simply wouldn't enforce it.

Thomas and Gorsuch have. I imagine Alito supports it too.

At best, Thomas merely hinted at it in his Box v. Planned Parenthood concurrence. Neither Gorsuch nor Alito have, though.

Gorsuch was mentored by John Finnis.

[brucejoel99]

Not happening. No justice has ever advocated for it, and Scalia himself explicitly rejected it.

Also, it would be totally unenforceable because it would be the Court telling states they need to prosecute and criminally sanction a large group of people.

Liberal states aren't going to criminally sanction abortion providers. It would be the equivalent of a liberal Supreme Court majority dramatically stretching the 14th Amendment protection of life to mean that individual ownership of guns is unconstitutional. Conservative states simply wouldn't enforce it.

Thomas and Gorsuch have. I imagine Alito supports it too.

At best, Thomas merely hinted at it in his Box v. Planned Parenthood concurrence. Neither Gorsuch nor Alito have, though.

Gorsuch was mentored by John Finnis.

Ok, but in no way does that prove the claim that you made, that "Gorsuch has advocated for it."

You get that, right? Right?

[SenatorCouzens]

Not happening. No justice has ever advocated for it, and Scalia himself explicitly rejected it.

Also, it would be totally unenforceable because it would be the Court telling states they need to prosecute and criminally sanction a large group of people.

Liberal states aren't going to criminally sanction abortion providers. It would be the equivalent of a liberal Supreme Court majority dramatically stretching the 14th Amendment protection of life to mean that individual ownership of guns is unconstitutional. Conservative states simply wouldn't enforce it.

Thomas and Gorsuch have. I imagine Alito supports it too.

At best, Thomas merely hinted at it in his Box v. Planned Parenthood concurrence. Neither Gorsuch nor Alito have, though.

Gorsuch was mentored by John Finnis.

Do you mind providing actual examples of exactly where a single justice has advocated for constitutionally mandated fetal personhood?

In Box v. Planned Parenthood (2019), even Justice Thomas said "The Constitution itself is silent on abortion."

[True Federalist (진정한 연방 주의자)]

Not that I think there is any constitutional basis for or against fetal personhood, if one is going to try and argue the proposition, then the fact that the 14th Amendment sets birth and not conception as when natural-born citizenship begins, would very weakly argue against the proposition. At most, one might argue that the 14th augments rather than supplants the original citizenship clauses in the Constitution, leaving States free to recognize fetal personhood.

I think I've made this point on here before, but actually thinking about the fetal personhood argument's 14th Amendment implications for more than a second is just hilarious: the Court holding to a strict interpretation of the word "persons" within the Constitution so that it'd have to apply to unborn fetuses would mean that they'd be protected by the 14th Amendment, but given the Citizenship Clause's clarification that citizenship is only granted to people who are born in the U.S., such an interpretation would mean that fetuses - although people - would be stateless persons. It's legal insanity.

That assumes that the 14th supplants rather than augments the citizenship provisions of Article IV's Privileges and Immunities Clause. The 14th doesn't include the word "only" that you are inferring.

Weirdly enough, if the Court were to rule that the Privileges and Immunities Clause allows a State to recognize fetal personhood, Dred Scott could be cited as a precedent that prevents other States from having to recognize such status.

[NewYorkExpress]

Even the courts did agree that fetal personhood was a thing, that still doesn't automatically make abortion unconstitutional, unless right-wingers want to actually admit that LGBTQ+ individuals are also people, for example (and they don't).

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Even the courts did agree that fetal personhood was a thing, that still doesn't automatically make abortion unconstitutional, unless right-wingers want to actually admit that LGBTQ+ individuals are also people, for example (and they don't).

I'm really unsure what you're getting at here other than throwing Non-Atlas Blue Tribe talking points at the wall to see what sticks.

The real story here is that someone as mainstream and "established" as Robert George--who, we'll remember, is a Princeton professor and has been effusively praised by people like Justice Kagan--is advancing a position that as recently as five years ago almost nobody in the "conservative legal movement" would have dreamed of. The Constitution leaving abortion regulation to the elected branches is a reasonable (I would argue the most reasonable) interpretation; the Constitution containing fetal personhood is such a wild overreach it makes the Roe rationale itself look restrained by comparison.

[Kingpoleon]

I think I've made this point on here before, but actually thinking about the fetal personhood argument's 14th Amendment implications for more than a second is just hilarious: the Court holding to a strict interpretation of the word "persons" within the Constitution so that it'd have to apply to unborn fetuses would mean that they'd be protected by the 14th Amendment, but given the Citizenship Clause's clarification that citizenship is only granted to people who are born in the U.S., such an interpretation would mean that fetuses - although people - would be stateless persons. It's legal insanity.

Predominantly liberal legal scholars have argued that fetuses ought to be considered American citizens by virtue of conception here. It’s a fairly technical argument, but in essence it refers to the Supreme Court’s continued hesitancy about approving the deportation of young children who have always lived here and extends it back a bit further - perhaps with the political goal to increase the amount of illegal immigrants who become legal.

There is nothing legally insane about stateless persons, though - many nations have laws which make any child born to citizen parents outside of the nation into stateless people.