A young white man in dark clothing with long dark hair stands holding a sign reading "Pro-Lifers SUCK!" Behind him is a display with an image of a fetus and a few other people on the sidewalk.
Northwestern University student John Jameson counterprotests the Created Equal display at the Evanston campus on September 22. Credit: Deanna Isaacs

Move over, Grandpa.

You think ageism is your cause?

Last week, Created Equal, an Ohio-based organization opposed to ending unwanted pregnancies came to town, making stops at the city’s largest college campuses. At Northwestern, they set up shop on Sheridan Road, displaying enlarged images of dismembered fetal parts and passing out leaflets announcing that “Abortion is Ageism.”

“Preborn babies differ from born humans in size, level of development, environment, and dependency. But toddlers and adults differ from one another in these ways as well, yet we don’t kill them based on these arbitrary differences,” their leaflet says.

It’s a perfectly logical argument as long as you’re willing to overlook the fact that the “preborn” environment is somebody else’s body.  

They were ignored by all the students I saw, except for theater major John Jameson, who had stopped to stage his own counterprotest, with a sign that said “Pro-Lifers SUCK.” 

According to a Created Equal press release, the organization’s president, Mark Harrington, maintains that “Preborn babies deserve equal protection under the Fourteenth Amendment of the U.S. Constitution. Depriving younger humans of their natural right to life is an age-based discrimination.”  

Huh? The 14th Amendment, ratified in 1868, granted citizenship to “all persons born or naturalized in the United States,” and equal protection under the law to all “persons.” Does that mean an embryo or fetus has civil rights? Could this be something that happened with the overturning of Roe v. Wade?

I put that question to Ameri Klafeta, director of women’s and reproductive rights at ACLU of Illinois.  

“Fetal rights are not recognized under the equal protection clause,” Klafeta says. “Not even this [federal] Supreme Court has gone that far.”  

And here, in the state of Illinois, “Our state supreme court has been very clear that a fetus cannot have independent rights. That was case law in Illinois, and it’s now codified in the 2019 Reproductive Health Act.” That act says, very specifically, “a fertilized egg, embryo, or fetus does not have independent rights under the laws of this state.”  

“It’s untenable to have a situation where a fetus could have independent rights, and it would be inconsistent with a whole host of other laws,” Klafeta says. For example, “Courts consistently refuse to force one person to have a medical procedure, even if it would benefit someone else.  A woman cannot be compelled to have a C-section, even if that’s purportedly in the best interest of the fetus. So this idea that there can be two separate interests when a woman is carrying a pregnancy that could be competing with each other wouldn’t fit under Illinois law.”

As for federal law, “a fetus has never been recognized as a person under the 14th Amendment.  It does not have the same rights as a child that’s been born.

“One of the holdings in Roe was that there’s not constitutional protection for the fetus, that the fetus is not a person, as that word is used in the Constitution. The Dobbs decision reverses Roe, but in the decision Justice Alito also said that the opinion is not based on any view about whether or not a fetus would have the same rights constitutionally as a person.”  

So that leaves it open?

“It creates a confusing landscape. And organizations like this one, that came to the universities here, will try to capitalize on it. Dobbs just said there is no right to an abortion. It did not take that extra step and say ‘There is no right to an abortion because there are fetal rights under the Constitution.’ This group is trying to take the next step. But that would be an untenable legal position. It’s inconsistent with the idea that someone cannot be compelled to undergo any kind of invasive bodily procedure for the benefit of anyone else. The protections around that are many, including a U.S. Supreme Court case [Cruzan] that says you have a right not to undergo medical treatment if you don’t want to.

“I think anti-abortion organizations are going to try to push ahead to get fetal rights recognized under the Constitution. But that’s not something the Supreme Court has already done.”

Not yet.