A number of correspondents, and Jonathan Adler and Charles Cooke online, question the constitutional justification for federal abortion legislation, including a ban on most late-term abortions. (See NR’s editorial today, by the way, about how House Republicans have mishandled that issue in recent days.)
I believe such legislation complies with the Constitution, and indeed that more extensive legislation would comply with it. The case that such legislation is constitutionally authorized need not rely on a commerce-clause jurisprudence that most conservatives consider much too expansive in its view of the legitimate role of the federal government. Instead the case rests on the Fourteenth Amendment.
That amendment requires states to give “any person” the equal protection of the law, and empowers Congress to “enforce” that guarantee. The protection against being deliberately killed is the most basic legal protection a person can have, and it is not being provided to all persons. If a state does not offer that protection to persons, Congress may intervene either by forcing states to perform this duty or by stepping in itself.
Nothing in the preceding paragraph is controversial when we are thinking about cases other than abortion. Nobody thinks that it would be constitutionally permissible for Alabama to announce that it will no longer enforce homicide laws to protect the odd Belgian tourist inside its borders, or the state’s adolescents, or that Congress would be exceeding its powers to intervene in these situations. (There might be arguments about how Congress should respond, but nobody would deny in principle that it has constitutional authority to intervene.)
Yet it is not just controversial to apply this same logic to legal protections for unborn children, it is a distinctly minority position. No justice of the Supreme Court has held that unborn children count as “persons” for the purposes of the Fourteenth Amendment. One of the few justices to consider the question — Antonin Scalia — has denied it emphatically: “I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons.”
Scalia is one of the best justices in American history, and I hesitate to disagree with him — not to mention with the late Robert Bork, who took the same view. Three considerations defeat that hesitation. First, none of the conservative justices has considered the precise question of whether Congress may legitimately act on the understanding that unborn children are persons within the meaning of the amendment; they have not even, so far as I know, considered it in speech. (Proponents of partial-birth abortion, for example, never really pressed the argument that a ban on it exceeded the commerce clause or Fourteenth Amendment authority of Congress.) Second, Bork, Scalia, and other conservative jurists have typically taken up the issue of personhood in the context of whether the federal courts should prevent states from allowing abortion or should somehow force them to forbid it. Third, the argument that these men have adduced against personhood for unborn children is weak.
That argument is one that Justice Harry Blackmun made in Roe v. Wade, where it makes its first appearance in constitutional law. It is that most references to persons in the Constitution have no possible prenatal application, and therefore when it refers to persons it cannot be including unborn children. Blackmun notes, for example, that the Constitution commands states to extradite any “Person charged in any [other] State with Treason, Felony, or other Crime, who shall flee from Justice.” That’s probably not going to be a fetus. Another constitutional provision Blackmun mentions: “No Person shall be a Representative who shall not have attained to the Age of twenty five Years . . . ”
#page#That provision, though, also excludes 23-year-olds. Are they not “persons” within the meaning of the equal-protection clause? Newborns aren’t likely to flee from the criminal-justice system either. Are they not persons? (The problem with this argument attaches as well to Scalia’s offhand remark about “walking-around persons.” Surely he does not mean to exclude those in wheelchairs, or toddlers, from equal protection where an application would be appropriate.) There is no reason to assume that all references to “person” in the Constitution will apply to the same people.
The text of the amendment says “any person,” does not define persons, and commits enforcement to Congress. If members of Congress have used their reason to determine that unborn children are, in truth, persons, the text seems to open the door for them to treat them as such for equal-protection purposes.
Of course this does not mean that the people who ratified the amendment had the specific intent of authorizing federal anti-abortion laws — or of producing other effects that the Fourteenth Amendment could correctly be read to require. But no sensible interpretive methodology insists on such specific intent. Occasionally you come across conservatives who believe that the equal-protection clause applies only to racial discrimination because that was the kind of discrimination that occasioned it. But that argument is rarely taken seriously because the decision was clearly made to frame and ratify the amendment at a higher level of generality than that. States can’t withdraw the protection of the homicide laws from gays, either, even though nobody in 1868 was thinking about them.
And as it happens, we do have evidence that lawmakers in that era considered unborn children to be persons who deserved legal protection, even if they were not thinking of that question specifically when debating the Fourteenth Amendment. The states were tightening anti-abortion laws in that period, laws that were plainly premised on a belief in the personhood of unborn children. (Blackmun attempts to rebut this point in Roe, but unsuccessfully.) Indeed, that is the chief way that law can recognize their personhood.
All of which suggests that constitutionally conscientious federal legislators can, and should, do what they can to provide legal protection to human fetuses past the age of 20 weeks, and for that matter before it.
— Ramesh Ponnuru is a senior editor at National Review.