A Question for Gorsuch, And an Answer

by Ramesh Ponnuru

Noah Feldman offers a question for Judge Neil Gorsuch’s Supreme Court confirmation hearing: Does the nominee believe that permissive abortion laws are unconstitutional? Gorsuch has argued that some laws permitting assisted suicide in cases of terminal illness might violate the equal-protection clause of the Fourteenth Amendment because they provide radically different treatment to people based on their physical health. Does he think that laws permitting abortion violate the clause by treating persons differently on the basis of their age?

To answer yes, though, would be to presuppose that unborn children are “persons” for the purposes of the Constitution. Whether they are was one of the core issues in Roe v. Wade. Justice Blackmun’s majority opinion allowed that if they are persons, permissive abortion laws are unconstitutional. (Like so much else about the decision, the concession was incompetent. Blackmun thought that allowing the killing of persons would violate the due process clause rather than the equal protection clause.)

Judge Gorsuch has said nothing to indicate whether he believes that unborn children should be considered to be included in constitutional references to “persons.” He has said nothing to indicate whether he believes that they are persons in any other sense. If asked about this equal-protection argument, it would be reasonable and not terribly provocative for him to respond that the Supreme Court has held that human embryos and fetuses are not constitutional persons, and that this holding, like all Supreme Court rulings, deserves some deference as a precedent. These are, of course, the standard answers that conservative nominees to the Supreme Court give on questions related to Roe, which is to say that the equal-protection argument does not really create any new difficulties for a nominee.

What’s interesting about Feldman’s article—and also Dylan Matthews’s related one in Vox—is that both of them tacitly dismiss the view that unborn children aren’t really persons. They take arguments that infants deserve legal protection and that all persons have a right to life as threats to the abortion right: quite as if the central argument that has been made for abortion, that children in the womb are not persons, is not a serious argument at all. Hmmm.

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