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Were the Founding Father's Pro-Life?Alfred B. Davis
Posted: March 26, 2022
The Declaration of Independence states in its second paragraph:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.
These rights were considered unalienable because the Founders recognized that they did not come from man or government but from God Himself. The Founders also recognized that these are self-evident truths, meaning that they are manifestly evident to any thinking, rational person.
Life is the first of the three unalienable rights listed, but what does it mean? Does it merely mean that we have the right to live our lives as we please, or is it more fundamental than that? After all, the following rights, liberty and the pursuit of happiness, have to do with how we live our lives. However, the first, life, is necessary to liberty and the pursuit of happiness.
If the Founding Father's meant, in the Declaration of Independence, that we have the right to life, meaning the right to life itself, then that would explain why they later wrote in the Bill of Rights, in the Fifth Amendment, that "…nor shall any person…be deprived of life, liberty, or property, without due process of law". And again, later, in the Fourteenth Amendment, "nor shall any State deprive any person of life, liberty, or property, without due process of law". These two amendments make it clear that the Founding Fathers held to the sanctity of human life, believing that neither the federal government, nor the state governments, should be allowed to capriciously deprive any person of life.
So, what shaped the views of our Founding Fathers regarding life?
One of the most cited thinkers during the founding era was William Blackstone. Blackstone's Commentaries on the Laws of England, published in 1765-1769, were considered authoritative and studied throughout the colonies. In fact, Ann Kitchel, former Associate Director of the Creighton Law Library and Adjunct Professor of Law at Creighton University School of Law wrote in her article, "William Blackstone's Enduring Legacy" (Fall 2007 issue of The Creighton Lawyer) that:
The structure and form of the Commentaries served as a framework for early legal education in the new country. At the College of William and Mary in 1790, George St. Tucker offered some of the first American lectures in the law. The Commentaries was the basis for his lectures.
In his Commentaries, Blackstone writes in Book 1, Chapter 1, Of the Absolute Rights of Individuals:
Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion, or otherwise kills it in her womb; or if any one beat her, whereby the child dies in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.
James Wilson, who signed both the Declaration of Independence and the United States Constitution, served as a Supreme Court Justice from 1789 to 1998. He was one of the most learned and insightful legal scholars of his day. Wilson, in his "Lectures on Law" at what was later to become the University of Pennsylvania, echoed Blackstone saying:
With consistency, beautiful and undeviating, human life from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and in some cases, from every degree of danger.
Also echoing Blackstone was John Bouvier. In Bouvier's Law Dictionary, first printed in 1839, he defined the stirring or quickening of the unborn baby as:
The motion of the foetus, when felt by the mother, is called quickening, and the mother is then said to be quick with child. This happens at different periods of pregnancy in different women, and in different circumstances, but most usually about the fifteenth or sixteenth week after conception….
Essentially, then, Blackstone, Wilson, and Bouvier were all saying that the unborn child was a real person whose life deserved protection from the time that it could be determined that the child was alive. Their views were based in English Common Law, going back to at least the 1200's and Henry Bracton (1216-1272), considered the "Father of the Common Law." Bracton considered the abortion of a "formed or quickened" fetus to be a form of homicide. He referred to it as, "the slaying of man by man."
Remember that medical technology during the time of these legal luminaries was much more limited than it is today. Consequently, it was not until the mother began to feel the first stirrings of the baby within her womb at about 15-16 weeks that one could be sure of the pregnancy. At that point, it was understood that the unborn child was a living person whose life deserved protection. Imagine what they would have thought if they could have seen an ultrasound showing the baby moving around at about seven to eight weeks or heard the baby's heart beating at six weeks!
However, even with the limited technology of his day, Bouvier went further. Citing Theodoric and John Beck's Elements of Medical Jurisprudence (1803), Bouvier noted that "physiologists, perhaps with reason, think that the child is a living being from the moment of conception." This line of thought was instrumental, along with the Founder's recognition of the self-evident truth of the unalienable right to life, soon led to many state and federal laws banning abortions.
Given the Founding Father's respect for the Bible, it is reasonable to assume that the Word of God also influenced their views regarding the sanctity of life. After all, the Bible contains many passages indicating that an unborn child is a living person. In the Gospel of Luke, for instance, after Mary learns that she is pregnant with the Christ Child she travels to visit her cousin, Elizabeth, who is about six months pregnant herself. In Luke 1:41-44 we read:
And it came to pass, that, when Elisabeth heard the salutation of Mary, the babe leaped in her womb; and Elisabeth was filled with the Holy Ghost: And she spake out with a loud voice, and said, Blessed art thou among women, and blessed is the fruit of thy womb. And whence is this to me, that the mother of my Lord should come to me? For, lo, as soon as the voice of thy salutation sounded in mine ears, the babe leaped in my womb for joy.
The "babe" referred to here is the unborn baby, John the Baptist. This unborn child reacts joyfully, leaping in the womb of Elizabeth at the salutation of Mary. As we can see, this unborn child is referred to as a real baby who is alive and aware of the outside world even before being born.
This passage also reflects what we now know about the development of hearing during pregnancy. At five weeks the inner ear starts to develop. Around eight weeks into the pregnancy, the tiny bones of the middle ear that vibrate and transmit sounds to the inner ear begin developing and the tube-like structure of the middle ear begins to form around them. At 12 weeks the cochlea and middle ear are forming. By 16 weeks, the specialized hair cells of the cochlea have connected to the auditory nerve and the baby may begin hearing faint sounds such as the mother's heartbeat. By the 23rd week, the baby is hearing sounds from outside and, by the 26th week is reacting to sounds with changes in heartbeat, breathing, and movement, just like John the Baptist did when Mary greeted Elizabeth.
Another passage the Founders would have been aware of is Psalm 139:13-16. In this passage David writes:
For thou hast possessed my reins: thou hast covered me in my mother's womb. I will praise thee; for I am fearfully and wonderfully made: marvellous are thy works; and that my soul knoweth right well. My substance was not hid from thee, when I was made in secret, and curiously wrought in the lowest parts of the earth. Thine eyes did see my substance, yet being unperfect; and in thy book all my members were written, which in continuance were fashioned, when as yet there was none of them.
Here, David is referring to himself, prior to birth, as a distinct, living, human being. He refers to himself as a developing child saying, "I am fearfully and wonderfully made…made in secret…curiously wrought…yet being unperfect." In fact, David actually refers to himself as a distinct person at the time of conception when he says, "in thy book all my members were written, which in continuance were fashioned, when as yet there was none of them."
The book David refers to is our DNA, our genetic code. This book, written at the moment of conception, contains 46 volumes, called chromosomes. Each chromosome contains a long, tightly coiled DNA molecule that carries the genetic code for anywhere from a couple hundred to over two million genes. Genes are the basic physical and functional unit of heredity and are written in a distinct language consisting of four letters, A, G, C, and T, representing the four types of nucleotides (adenine, guanine, cytosine and tyrosine) that help form DNA molecules. Every person has two copies of each gene, called alleles, because our 46 chromosomes are actually 23 pairs of chromosomes, with 23 coming from our father and 23 coming from our mother. Consequently, at the moment of conception the 23 chromosomes from our father are combined with the 23 chromosomes from our mother, yielding a completely unique combination of genes that makes us distinct from both our father and our mother. Consequently, at conception, the blueprints and instructions to produce all our unique features and physical characteristics were written out in God's book, "when as yet there was none of them."
Consider yet another passage regarding the life of the unborn child that the Founding Fathers would have been aware of. In Exodus 21:22-25 God instructed Moses to write:
"If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine. And if any mischief follow, then thou shalt give life for life, Eye for eye, tooth for tooth, hand for hand, foot for foot, Burning for burning, wound for wound, stripe for stripe."
The mischief mentioned in this passage refers to harm or even death to the infant, which is referred to as her fruit. In other words, if the woman is injured in such a way that it causes her to prematurely give birth to her child and the child is unharmed, then the woman's husband may demand just recompense for the assault against his wife and the danger of death or injury to their child. However, if mischief, meaning death or injury to either the child or the mother occurs, then Lex Talionis, the Law of Retaliation applies meaning that the judges were to investigate the incident and assess a punishment proportional to the harm done to either the woman or the child. Generally, the punishment took the form of financial compensation to recompence for injuries caused. However, in the case of either the mother or the baby dying, the death of the aggressor may be required.
So, to answer our question, "Were the Founding Father's pro-life?", I think the answer is clearly yes. They believed that life comes from God and should be protected from the time that it is detected until the time that it ends. Taking a life was viewed as a serious crime, whether the victim was born or unborn because they recognized that life is sacred. And, while they understood the necessity for the death penalty for certain crimes, they certainly did not believe that an unborn baby should be sentenced to death for the crime of being inconvenient.