Should Preborn Children Be Counted in the U.S. Census?

By Bill O’Brien

The Census and Personhood

On the next Census Day, which for most in the United States is April 1, 2020, every household in America will be asked to complete a census form, either on paper, by phone, or for the first time, via the internet. Census numbers are used to reapportion seats among the states in the U.S. House of Representatives, redistrict federal and state legislative districts, and to provide the basis for distribution of billions of dollars of federal funds.

Including pre-born children in the census count is a personhood issue that has a personal, state, and national scope and therefore, is of the highest visibility. It could be considered second in importance only to enactment of a personhood amendment to the U.S. Constitution.

A Bit of History

The issues of pre-born personhood and abortion have appeared together in important court decisions, but many people don’t realize the census was involved in these decisions as well. In the 1973 Roe v. Wadedecision that legalized abortion, U.S. Supreme Court Justice Harry Blackmun sought to determine if the word “person,” as used in various clauses of the U.S. Constitution, had ever been applied prenatally. Based in part on his observation that, though the word “person” is used in the census clauses of Article 1, Section 2, as amended by the 14th Amendment, Section 2, he wrote, in a footnote (#53):

“We are not aware that in the taking of any census under this clause, a fetus has ever been counted.”

Note that he concluded that the pre-born had not been counted, not that they could not be.

Not counting pre-born humans, however, causes harm not only to the states in which they reside—through reduced representation in Congress and decreased federal funding—but also by the social implication that they do not count in society. Thus, by ruling the pre-born are not constitutional persons—that they do not count socially or legally—Blackmun and six other justices went on to legalize the slaughter of the pre-born through abortion.

The historical precedent for excluding a segment of the U.S. population from being counted as full persons in the census is not a good one. African American slaves were each only counted as three-fifths of a person until ratification of the 13th and 14th Amendments. Although the three-fifths compromise was put forth as a way to reduce the political power of slaveholding states in the South, counting slaves as less than full persons in the census sent a dehumanizing message. Slaves had a reduced social and legal standing in society and were considered property. Today, pre-born human beings have no social or legal standing to prevent their own deaths by abortion.

Though Justice Blackmun noted in Roe that he was not aware of any pre-born child that had been included in the census count, this does not mean that pre-born children were not listed on census forms. Some families have listed, or desired to list, their pre-born children as persons on census forms after the Roedecision. But in 1997, in the Slattery v. Clinton case, the U.S. District Court-Southern District of New York ruled that fetuses are not persons entitled to be counted in the census. This decision was based on Roe.

A Right to be Counted

The Census Bureau’s constitutional mandate is to count every person, and it may no more refuse to count groups of human beings because of their religion, race, or any other attribute, than to refuse to count pre-born human beings. Refusal to count them causes a deliberate and unconstitutional undercount of the human population. In 2020, if a family lists their pre-born child on the census form, that pre-born child should be counted.

Pre-born Children Are Undeniably Human Beings

The Carnegie Stages of Human Embryonic Development are the most reliable source for accurate scientific facts on the development of human beings. The Carnegie Stages are used in textbooks written by human embryologists and clearly identify that, at the beginning of Carnegie Stage 1a—at first contact of the oocyte and the sperm—a human being begins to exist.

The Census Bureau has always counted every human being as a person, with the notable exceptions of slaves and the pre-born. The slavery issue has been corrected. It’s time that the pre-born be counted as well. Consider that:

  • Babies born prematurely at eight, seven, or even six months are counted in the census, but children in-utero of the same age (and older!) are not counted.

  • During in-utero surgery, pre-born children are treated as patients who are distinct from their mothers.

  • Fetal homicide statutes enacted by the federal government and by at least 35 states define pre-born children who are killed, other than by abortion, as legal persons who are victims of homicide.

  • Some states issue fetal death certificates for stillborn babies as early as 20 weeks gestation.

  • A sonogram is often a baby’s first photograph.

Similarly, though some pre-born children’s lives may end early in miscarriage, abortion, or stillbirth, if they are alive on Census Day, they could also be counted. Since the census count will continue well into the fall of 2020, women who become aware of their pregnancies after Census Day could, if necessary, add their pre-born children to the census forms many months later. Regardless of when someone completes the form during the year, it should reflect the status of that household’s population as of Census Day.

The Impact of the Census Issue

Preparations for the 2020 Census are already well under way. Though the Census Bureau could be sued after the census if the pre-born are not included, how much better it would be to have a president, on behalf of the executive branch of government, issue an executive order before the count begins to mandate that pre-born children be included. Whether President Trump issues an executive order or not, just the idea of counting the pre-born in the census would certainly ensure a lengthy national discussion of the personhood issue. Legislative action in Congress and legal action in the courts may be expected. The personhood issue could even end up in the U.S. Supreme Court, without any abortion or privacy issues attached.

We can all take the first step:

  • Contact President Trump—Call the White House comments line at 202-456-1111 or the White House switchboard at 202-456-1414. Or, you can contact the White House via email.

  • Reach out to Commerce Department Secretary Wilbur Ross—Call him at 202-482-2000 or send an email to WLRoss@doc.gov

  • Get in touch with Census Bureau Director Steven Dillingham—Call him at 301-763-2135 or send an email to steven.dillingham@census.gov

Let’s demand that pre-born children be included as persons in the 2020 Census and ask President Trump to issue an executive order to make it happen.