Bench Memos

Law & the Courts

Are Permissive Abortion Laws Unconstitutional?

In the current issue of First Things, the distinguished scholar John Finnis has a noteworthy essay bearing the title “Abortion Is Unconstitutional.” In that essay, Finnis goes beyond arguing merely that Roe v. Wade was wrongly decided and that abortion policy should be decided by democratic processes in the states. As his title suggests, he instead argues that the unborn child is a “person” within the meaning of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment and, as such, possesses general protections against being aborted.

I will explain in this post why I am not persuaded by Finnis’s argument. At the outset, let me emphasize three points. First, I fully agree with Finnis that “prohibiting the killing of the unborn is a matter of simple justice to the most vulnerable among us.” Second, as I observed more than fifteen years ago in setting forth the “three competing positions on what the Constitution says about abortion,” I believe that the argument that Finnis is making “is far more credible than the position taken by the Court in Roe.” Third, in the years since then, advocates of that argument—such as law professor Michael Stokes Paulsen (author of “The Plausibility of Personhood”), Joshua Craddock, and Finnis himself—have deployed the methodology of originalism to make a much stronger case for their position than I had been aware of.

Here is an outline of my understanding of the core of Finnis’s argument:

A. Blackstone’s Commentaries shaped the understanding of the lawyers who drafted and debated the Fourteenth Amendment.

B. As part of the “rights of persons,” Blackstone defined a foundational “right of personal security” to include a right to life, “inherent by nature in every individual,” that “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.”

C. By the time the Fourteenth Amendment was ratified in 1868, the dominant (and correct) understanding of when an individual’s life begins was at conception.

D. In interpreting the Fourteenth Amendment, the relevant question is “what [its] wording meant to those state legislators who ratified it, as they considered it in the context of the document and law they were amending and of the understand­ing of language and law prevalent among them.” [Finnis’s italics.]

E. The state legislators who ratified the Fourteenth Amendment would have understood the term “person” in the Due Process Clause and the Equal Protection Clause to include prenatal human beings from the moment of conception. Indeed, this “plain meaning” would have been “too obvious to need discussion among those who, as legally learned (or informed) elected legislators, were concerned or content to include it as an implied part of their constitutionalizing project of tersely putting certain matters beyond the powers of the legislators of any state.”

F. The Supreme Court therefore ought to exercise its “responsibility of supervising state laws” (as well as any federal laws that Congress enacts under section 5 of the Fourteenth Amendment). Fidelity to “historic standards” would mean “a regulative regime” that generally criminalizes abortion but “in which preserving the life of the mother [is] firmly accepted as due and compelling.”

The doubts and questions that I raise in this post relate entirely to points E and F.

1. 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?

This, after all, was the heyday of the movement to codify prohibitions on abortion. By Finnis’s numbers, roughly half the states in the Union had enacted anti-abortion statutes in the two decades before 1868. How simple it should have been for proponents of such statutes to alert legislators in the ten states that they needed to codify a general ban on abortion from conception, and how prompt, under Finnis’s theory, would have been the response.

(Finnis reports that about a month after Ohio’s legislature ratified the Fourteenth Amendment, it amended its 1834 anti-abortion statute by establishing the same punishment for abortions pre- and post-quickening. But Finnis doesn’t suggest that there is any evidence that the Ohio legislature did so in anticipation of what the Fourteenth Amendment would require.)

As Robert Bork wrote in a First Things debate on the same topic two decades ago:

It passes belief that nobody would have said so or raised the question for discussion, but the records are bare of any such question or discussion. The conclusion can only be that those who adopted these Amendments addressed only the rights of persons who had been born.

2. The Due Process Clause of the Fourteenth Amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law”) applies against the states the same restriction that the Due Process Clause of the Fifth Amendment (“nor shall any person … be deprived of life, liberty, or property, without due process of law”) applies against the federal government. If the Fourteenth Amendment requires the states to protect pre-natal human beings from abortion, then wouldn’t 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.

It seems to me difficult to reconcile Finnis’s argument with Congress’s inaction.

3. I don’t see how the Supreme Court has the institutional capacity to establish the “regulative regime” that Finnis envisions, and that lack of institutional capacity provides another reason to question whether the Fourteenth Amendment should be read to give the Court that role.

The Court ordinarily “supervises” state laws by deciding whether or not they violate the Constitution and by relying on the judicial hierarchy to implement its assessments of which laws are unenforceable. But 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. But what would the Court be able to do if the states (or Congress) simply refused? Subject legislators to contempt proceedings? Is there any reason to believe that the ratifiers of the Fourteenth Amendment, with the excesses of the Dred Scott Court in memory, envisioned such a role for the Court?

* I say “at least” only because it’s not clear to me whether all of the statutes that Finnis says applied “before … quickening” applied from conception.

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