Backgrounder: The Constitution and Abortion

September 8, 2022

by Tanner Bouchie

On August 30, Planned Parenthood filed a lawsuit against Indiana’s Medical Licensing Board in the Monroe Circuit Court. The lawsuit argued, in part, that Indiana’s Constitution protects the practice of abortion under a theory of privacy.

I wonder whether the plaintiffs, represented by the ACLU’s Ken Falk, have ever read the Constitution. Article 1, Section 1 states, in part:

“WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being.”

In 1984, voters adopted the current language by substituting “people” in place of “men.” Aside from this amendment, the provision has remained unchanged since the Constitution’s adoption in 1851. The 1851 Constitution replaced the 1816 Constitution which contained the following provision:

“WE declare, That all men are born equally free and independent, and have certain natural, inherent, and unalienable rights; among which are the enjoying and defending life and liberty, and of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.”

Instead of merely duplicating the 1816 Constitution’s declaration of equality, the 1851 Constitution adopted a similar clause with conspicuous changes. Where the 1816 Constitution recognized all men’s equality upon their birth, the 1851 Constitution recognized all men’s equality upon their creation.

When the words of the Constitution change, the meaning of the Constitution also changes. The framers of the Constitution discarded the former standard of birth as the marker of equality. Instead, the Constitution looks to creation. The Constitution establishes the following legal truths about “people”:

1) The same creator has created all people.

2) People become equal at their creations, not their births.

3) The creator has granted all people inalienable rights, which include life, liberty, and the pursuit of happiness.

If a human being belongs within the category of “people,” then the Constitution establishes that she has belonged since her creation.

Conception best fits the point of creation. From the moment of conception, a human zygote has metabolism, her cells reproduce so that she can grow, and she reacts to stimuli. She also has human DNA which is unique from any other human who has ever lived.

Perhaps by its lawsuit Planned Parenthood has opened the door for Indiana’s courts to definitively hold that creation of a person occurs at conception. I won’t hold my breath, but to the extent that the Constitution says anything about abortion, it is certainly a pro-life document.

Tanner Bouchie, an attorney, is a lifelong Hoosier and a member of the Indiana Policy Review Foundation residing with his family in Knox County. He is in-house counsel for a pharmacy benefits manager focusing on compliance issues.


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