Bench Memos

Law & the Courts

Are Permissive Abortion Laws Unconstitutional? A Reply to Joshua Craddock

On the First Things website, Joshua Craddock has responded to the three “doubts and questions” that I raised about John Finnis’s essay bearing the (rather confusing) title “Abortion Is Unconstitutional.” I’m grateful to Craddock for his civil and intelligent response. I’m happy to continue the conversation.

1. For the sake of clarity, I will repeat the core of my first objection (emphasis added):

According to Finnis, by the end of 1868, 30 of the 37 states then in the Union had enacted anti-abortion statutes that superseded the common-law prohibition on abortion after quickening, and 27 of these 30 states criminalized abortion “before (as well as after) quickening.”

That would mean that the Fourteenth Amendment, on Finnis’s reading, obligated at least ten states to enact statutes that generally prohibited abortion from conception. If this “plain meaning” would have been “too obvious to need discussion” among the ratifying legislators, wouldn’t we expect some evidence somewhere that some legislators in those ten states recognized that the Fourteenth Amendment would obligate them to enact such statutes? Or that, immediately after the Fourteenth Amendment was ratified, legislators in most or all of those states would have enacted such statutes and cited the Fourteenth Amendment in support of doing so?

a. Craddock first responds by asserting that “the post-ratification pattern [of state abortion enactments] matches what Whelan says we would expect to see if the Fourteenth Amendment recognized preborn personhood.” He cites seven states that enacted statutes in the fifteen years after ratification.

Craddock’s response misses (and misstates) my point. It’s no surprise that the trend of state abortion enactments that preceded the ratification of the Fourteenth Amendment continued at a leisurely pace in the fifteen years after it. The fact that the trend was the same in the decades before and after ratification suggests that the Fourteenth Amendment had no effect on the post-ratification enactments. I argued that if Finnis were right, we should have expected immediate enactments in most or all of those ten states, that we should have expected legislators to cite their Fourteenth Amendment obligation, and that we should have expected some ratifying legislators from those states to raise the issue. The post-ratification enactments that Craddock cites thus have no bearing on my objections.

b. Craddock next contends that I’m demanding too much, that I am “impos[ing] an unreasonably high burden of proof that originalists do not apply to any other question.” I’ll note, first, that I am responding to Finnis’s particular claim that the absence of evidence is because the “plain meaning” of the Fourteenth Amendment would have been “too obvious to need discussion.” At the very least, if it were “too obvious to need discussion,” we should have seen immediate post-ratification enactments in most or all of the ten states.

On Craddock’s complaint that I “apply a different and much higher standard of proof in the abortion context than in the context of school segregation and interracial marriage,” I’ll limit myself to two points.

First, the two contexts are not at all parallel. No one disputes that the primary purpose of the Fourteenth Amendment was to put an end to various forms of state-sponsored racial discrimination. By contrast, I don’t think that even Finnis or Craddock contend that the drafters or ratifiers of the Fourteenth Amendment intended it to have any effect on abortion. They argue instead that it had a decisive incidental effect.

Second, original expected applications inform (but do not exhaust) original public meaning. The weight they have necessarily depends on context. As law professor Michael McConnell has argued, while constitutional amendments “generally reflect, rather than contradict, popular opinion” and contemporaneous practice, the post-Civil War Amendments were an extraordinary instance in which a “political minority, armed with the prestige of victory in the Civil War and with military control over the political apparatus of the rebel states, imposed constitutional change on the Nation as the price of reunion, with little regard for popular opinion.”

Craddock says that he also “cannot help but remark upon the oddity of an originalist who disregards substantial evidence about the original public meaning of an enacted text for lack of a clear statement in legislative history.” But the failure of the ten states to immediately enact statutory bans on abortion is not “lack of a clear statement in legislative history,” and I am not using the legislative history of the enacted bans for the contested purpose of shedding light on what their text means.* Nor, indeed, can Craddock point to any statement, clear or otherwise, that suggests a linkage between the Fourteenth Amendment and the later enactments. And I’m not disregarding Finnis’s or Craddock’s evidence; I’m just questioning whether it’s as compelling as they think it is.

2. Here is the gist of my second objection:

If [the Due Process Clause of ] the Fourteenth Amendment requires the states to protect pre-natal human beings from abortion, then wouldn’t [the Due Process Clause of] the Fifth Amendment have imposed a similar requirement on the federal government from 1791 forward?

Yet even over the several decades before 1868 in which many states enacted statutes that barred abortion from conception, Congress never did so with respect to the District of Columbia. Congress didn’t do so in 1866, the year in which it proposed the Fourteenth Amendment to the states, and it didn’t do so in the proximate aftermath of ratification. It wasn’t until 1901 (if my quick research is correct) that Congress enacted an abortion statute for D.C.

Craddock purports to address my entire objection, when he in fact takes issue only with the last sentence. I will happily accept his account that the Legislative Assembly for the District of Columbia enacted an anti-abortion statute in 1872. That still wouldn’t explain why Congress didn’t enact an anti-abortion statute in 1866 or in the preceding decades.

But I acknowledge that the Due Process Clause may just be a sideshow. Although Finnis seems to treat the Due Process Clause and the Equal Protection Clause indistinguishably, I understand Craddock to regard the Due Process Clause as playing little if any role in the abortion context. (I’m relying here on an event in which Craddock and I took part, not on anything in his current response.) The simple reason, of course, is that abortion is, in all or almost all instances in this country, not an act by which the government deprives the unborn human being of life.

3. Third, and perhaps most fundamentally, I questioned “how the Supreme Court has the institutional capacity to establish the ‘regulative regime’ that Finnis envisions.”

Craddock (“Only Finnis can elaborate on his argument ….”) and I are both far from clear what Finnis has in mind. (So, by the way, are some of Finnis’s avid Twitter supporters, who offer very different accounts even as they damn anyone who isn’t compelled by the clarity of a position they can’t agree on.) But I don’t understand his response to me.

I stated that “under Finnis’s theory, it would seem that the Court would be in some way requiring the states (or Congress) to affirmatively enact criminal laws prohibiting abortion.” Craddock says my reading is “improbable,” but he then speculates that this is what Finnis’s theory would entail:

Where the protections of state homicide laws are wrongfully withheld from preborn persons, the Court would issue rulings requiring states to extend equal protection to preborn persons with respect to those homicide laws before they could be enforced.

This sure strikes me as “in some way requiring the states (or Congress) to affirmatively enact criminal laws prohibiting abortion.” Oh, sure, a state would have the option of not enforcing its homicide laws at all. But what state would view that as an acceptable option? So it would then have to extend its homicide laws to cover abortion—if, that is, it chose to comply with the Court’s mandate.

And what would the Court do if a state simply refused to comply with its mandate? Overturn the convictions of anyone convicted under the state’s homicide laws?

Craddock’s claim that the Court’s role would be similar to its supervision of school desegregation misses the point that it’s one thing to order state officials to desegregate schools, but that it’s quite another to order them to enact particular criminal laws or to undertake criminal prosecutions.

The unprecedented and unworkable role that Finnis’s theory would seem to entail for the Supreme Court provides another reason to question its soundness.

4. Let me add a fourth objection, one that I raised in the event that I did with Craddock:

In the original Constitution, the notorious Three-Fifths Clause called for representatives to “be apportioned among the several States … according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” (Emphasis added.) This provision certainly seems to contemplate a counting of persons who have been born—and thus to use the term “Persons” in a way that excludes prenatal human beings. All of the thirty or so other uses of “Person” or “Persons” (or “person” or “persons”) in the original Constitution, the Bill of Rights, and the Twelfth Amendment sensibly accommodate the same meaning.

As Finnis acknowledges, section 2 of the Fourteenth Amendment, which supersedes the Three-Fifths Clause, calls for representatives to be apportioned among the states “according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

It’s possible, as Finnis argues, that “persons” in section 2 of the Fourteenth Amendment bears a different meaning with respect to natural persons than it bears in section 1. It’s also possible that “persons” in section 2 of the Fourteenth Amendment and “Persons” in the Three-Fifths Clause include unborn human beings and that, for practical reasons of convenience, no census has undertaken to try to count them. Further, it’s possible that every other reference to “person” or “persons” in the Constitution also includes unborn human beings—and that it’s the surrounding language that imposes any formal or practical restriction to born human beings. But I think that it’s at least as possible that, notwithstanding Blackstone, the drafters and ratifiers of the Fourteenth Amendment understood that the term “person,” as it had been used in the Constitution for the preceding eight decades, included only those natural persons who had been born.

*  *  *

Like Finnis and Craddock, I very much hope that the day comes very soon when the lives of unborn human beings have ample protection in law. In my judgment, the only prospect of any imminent broad protection involves the Supreme Court overturning Roe v. Wade and restoring abortion to the democratic processes in the states.

* I added the second clause of this sentence a day after I published this post.