On June 5, 2023, Congressman Doug Lamborn filed U.S. House Resolution 464, the “Recognizing Life Resolution.”

In his press release about the bill, Rep. Lamborn said:

The Recognizing Life Resolution is the new north star that will guide future legislation and set the precedent for our nation to secure equal protection for unborn children and preserve the sanctity of life.

His press release lists Live Action and Susan B. Anthony Pro-Life America as organizations that support the bill.[1]

Because it succinctly lays out a historical and constitutional case for equal protection of the laws for preborn children, most of the language of H.Res. 464 truly is commendable.

Yet despite its generally excellent language, H.Res. 464 has a fatal flaw that fundamentally contradicts the rest of its content. Indeed, it renders the bill wholly repugnant to the very concept of equal protection the bill otherwise venerates.

In the third Resolved, the bill turns the concept of equal protection completely on its head (page 6, lines 12-17, in the PDF version).

Including its introductory language, that section reads as follows:

Resolved, That the House of Representatives acknowledges our constitutional duty and solemn obligation to guarantee the equal protection of the laws to every unborn child within the jurisdictional and geographic reach of the Constitution, which shall not be construed to permit the prosecution of any woman for the death of her unborn child.

(emphasis added)

This last clause stipulates that the Constitution of the United States shall not be construed to permit the prosecution of any woman for the death of her unborn child.

Of course, we should all agree that no one should be prosecuted without due process of law. And indisputably, no woman should be prosecuted for the accidental death of her unborn child as in miscarriage. And definitely, when medical professionals are attempting to save her life and have run out of options to save both patients, no woman should be prosecuted for the unintentional death of her unborn child. And certainly, when forced into an abortion under duress by threats of violence upon her, no woman should be prosecuted for the death of her unborn child. And absolutely, for abortions taking place before an equal protection bill is enacted, no woman should be prosecuted for the death of her unborn child.

Yet this clause contains no such limitations. It merely says, “any woman.”

This means that it refers to any woman in any situation whatsoever, no matter how knowing, willful, and malicious her intent or how heinous her conduct.

This language would forbid the prosecution even of those who “shout” their abortions while taking pills to kill their children on the steps of the Supreme Court, as some did on December 1, 2021, as the Court heard oral arguments in Dobbs. It would forbid the prosecution of those who sacrifice their children as part of the Satanic Abortion Ritual. It would even forbid the prosecution of the president of Planned Parenthood herself were she to abort her own child, even though she almost surely could not and would not make any claim of victimhood.

This language would not only prohibit prosecution for a charge of murder. It would prohibit charges for even the lowest level crimes that impose community service or a small fine.

It is particularly grievous that this bill takes such a position at a time when women ordering abortion pills from overseas and performing their own “self-managed abortion” at home is exploding in popularity and use, even in so-called “abortion-free” states.

According to the New York Times, while the number of reported abortions in the United States decreased just over 6 percent in the six months after Dobbs, “The new data overestimates the total reduction in abortions, because it does not include people who obtained abortions outside the U.S. health system, such as by ordering pills online from other countries. Previous estimates suggest more than 6,500 women are requesting pills this way each month. That is more than the total decline in legal abortions…”

While many rightly celebrate the demise of Roe, many wrongly assume that this means abortions are completely illegal in some states or that all the babies in those states are being saved. Though clinics are closed in some states, data shows that preborn children there are still being aborted.

But, if conceivable, it actually gets worse than this.

In the Dobbs case, many were arguing that the Constitution is neutral on the question of abortion. Not everyone agreed, though.

A handful of the 81 briefs filed on the anti-Roe side argued that the Constitution was not neutral—that it required that every preborn child in every state be provided the equal protection of the laws because every preborn child is a person under the 14th Amendment.

The Foundation to Abolish Abortion wrote and filed an amicus brief making this argument, joined by 20 other organizations and 20 state legislators.

If H.Res. 464 claimed that the Constitution were neutral, that would be bad enough. But it goes further.

This bill claims that the Constitution does not permit prosecution of any women who abort their children. The effect of this would be to enshrine self-managed abortions as a constitutional right. This bill, or at least a statute enacted or court opinion issued following the light of its guidance, would become Roe 2.0. It would prohibit, as unconstitutional, any federal or state government from doing any act that allowed for the prosecution of any self-managed abortion.

This flatly contradicts the plain text of the 14th Amendment. This contradicts Dobbs. This contradicts legal scholars on equal protection, including Josh Craddock.[2] This even contradicts the rest of the language of H.Res. 464 itself, making it internally irrational.

Calling this bill “equal protection” renders that phrase worse than meaningless. The equal protection clause of the 14th Amendment means that the laws protecting life, liberty, and property, at least, must equally protect all persons. In simple terms, applied to this context, it means that murdering anyone should be illegal for everyone. Yet this bill says that the murder of a person not yet born should be effectively legal for their mother, and that prohibiting such would violate the Constitution. That is not equal protection. That is constitutionally-compelled un-equal protection.

H.Res. 464 has been praised as the “new north star that will guide future legislation.”

We agree that equal protection is the North Star, deriving its ultimate luminance from the principles of Scripture in which God commands us to love our neighbors as ourselves, to do unto others as to ourselves, and specifically in law and justice He forbids partiality (literally, to regard faces).

But because of this objectionable language, H.Res. 464 is anything but the North Star. This language rips the blindfold from Justice and requires her to regard the faces of the victim and the defendant to determine a case’s outcome.

This language not only surrenders equal protection; it declares war on it. It is not faithful to equal protection; it betrays it. It is not the new North Star; it is the Black Hole that would essentially devour equal protection and all those it should be enforced to safeguard.

Therefore, we respectfully call upon Congressman Lamborn and other legislators, organizations, leaders, and others to repudiate this objectionable clause and to work to have it removed from H.Res. 464. Further, we urge that their repudiation of the objectionable clause be at least as clear, public, and vigorous as any praise they have offered for the bill.

Bradley W. Pierce
President, Foundation to Abolish Abortion

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