Last week, law professor Aaron Tang posted a long article titled “The Originalist Case for an Abortion Middle Ground.” In that article, Tang disputes the proposition that, “at the time of the Fourteenth Amendment’s enactment, 27 of the 37 states in the union prohibited abortion at all points in pregnancy.” The actual number, he argues, was 15.
Tang somehow imagines that his argument, if it were correct, would undermine the predominant originalist position against a constitutional right to abortion. But he badly misunderstands that position.
To state the matter most simply, the originalist proposition that the states have the authority to prohibit elective abortion does not depend at all on whether 27 or 17 or seven states prohibited abortion from conception at the time the 14th Amendment was enacted. Under standard originalist methodology, any of those counts would place on proponents of a constitutional right to abortion a very high burden of demonstrating that the original public meaning of the 14th Amendment somehow disallowed those state laws. To be sure, the higher the number, the more patently ridiculous the originalist argument for a right to abortion is. But Tang is simply wrong to posit that the originalist argument against a right to abortion depends on what he calls the “27-states claim.”
When a state chooses to allow an action, it does not ordinarily imply that it lacks the power to prohibit the action. By contrast, when it chooses to bar an action, it ordinarily conveys its belief that it has the power to do so.
In other words, even if Tang were right that, at the time the 14th Amendment was ratified, there were 22 states in which “pregnant persons [sic] were free to obtain an abortion at any time before quickening,” he’s utterly wrong to think that that datum ought to lead originalists to conclude that the 14th Amendment protects a constitutional right to abortion before quickening. If, by his count, 15 states then had laws that barred abortion “at all points in pregnancy,” that establishes a very strong presumption that the 14th Amendment allowed such laws.
What’s more, if the 14th Amendment somehow protected a constitutional right to abortion before quickening, you’d expect that the states that had pre-quickening bans would, immediately after ratification, eliminate those bans. Instead, the trend was in the opposite direction: States that had in place the common-law ban on abortion post-quickening enacted statutes that barred abortion from conception.
In any event, it appears that Tang has gotten his history badly wrong. In a “preliminary rejoinder,” law professors John Finnis and Robert P. George offer what appears to be a devastating demolition of Tang’s claims. Working their way alphabetically through the states in which Tang says that there is “clear [and] specific historical evidence” that the states did not forbid pre-quickening abortion, they rebut Tang’s claims and identify one gross misrepresentation after another. Their bottom line:
To our surprise, Tang’s essay sadly outdoes the articles of Cyril Means on which Roe relied. Just as partisan, the new essay is conceptually even more confused and historically even more error-strewn, at all levels of generality, from big picture to granular case law.
(Finnis and George, I’ll note, argue not merely that the 14th Amendment allows states to prohibit elective abortion from conception but that it compels states to do so.)