Professor Jonathan Adler recently posted about a Washington Post opinion article by Robert George and Josh Craddock, which argued that Congress should legislate to enforce the equal protection rights of unborn human beings. In doing so, he linked to and incorporated his earlier post on the merits of the amicus brief we filed in Dobbs, which argued that unborn children are “persons” within the meaning of Section 1 of the 14th Amendment. We’re taking this opportunity to respond to both posts, beginning with Adler’s critique of our amicus brief.
Adler refers to what we say the 14th Amendment requires of the Court 15 times – ten times as “prohibit abortion,” four times as (some version of) “treat all abortion as fully equivalent to homicide.” Only in the last reference but one, the 14th of the 15, are we allowed to speak: “state homicide laws would need to forbid elective abortion.” In reality, of course, homicide comes in many types and grades. Giving the unborn (and not yet fully born) equal protection against being deprived of life does not require states to codify elective abortion high on that list of gradations. Nor does it require – or even permit – prohibition of medical interventions to save the mother’s life that tragically and unavoidably result in fetal death.
But does the 14th Amendment speak to abortion at all? Adler says no. No justice has ever held it does, “and no justice who considers himself or herself bound by the original public meaning of the 14th Amendment ever should.”
As Adler notes, the issue – like our position – involves “two separate propositions.” He formulates them correctly, but to make clearer that they’re the premises of a valid (and sound) argument, we’d say: First Premise: If the unborn are persons, the 14th Amendment requires prohibition of elective abortion. Second Premise: The unborn are persons within the original public meaning of the Amendment’s due process and equal protection clauses. Conclusion: The 14th Amendment requires prohibition of elective abortion.
So Adler’s repeated “No justice has ever held. . .” needs major qualification. No justice has ever denied the First Premise, and the seven justices in the Roe majority expressly affirmed it: “[Texas] and certain amici argue that the fetus is a ‘person’ within the meaning of the Fourteenth Amendment. . . If this suggestion of personhood is established, [Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Fourteenth Amendment.”
Indeed, Justices Blackmun, Brennan, and Marshall all affirmed in Webster v. Reproductive Health Services what Justice Stevens had previously said in Thornburgh v. American College of Obstetricians and Gynecologists: If the unborn child is a “person” then “the permissibility of terminating the life of a fetus could scarcely be left to the will of the state legislatures.”
In other words, the Supreme Court has already rejected the last seven paragraphs of Adler’s article – everything that he says after contesting the Second Premise but then accepting it arguendo for the sake of considering and contesting the First Premise.
True, the Court’s acceptance of the First Premise seems compromised by what it later said about the severity of the prohibition required if the Second Premise were true. So, for sure, the whole matter needs re-arguing, as to both premises. Adler denies both premises, mistaken about each. (And much in his last seven paragraphs is really relitigating the Second while seeming to talk about the First. So, anyway, we’ll take his seven arguments in his order.)
But we won’t be rehearsing here the manifold reasons we’ve advanced for regarding the original public meaning of “any person” in the due process and equal protection clauses as including the unborn, which, remarkably, Adler completely ignores: how startlingly prominent in the thought of the Amendment’s drafters and ratifiers was Blackstone’s page expounding the first of the Rights of Persons, their right to life, exemplified first by the common law’s protection of that right of the “child en ventre sa mere”; how 18th century cases, embraced by authoritative American precedents decades before ratification, declared the general principle that unborn humans are rights-bearing persons from conception; how extensively the ratification generation legislated to conform common law protections to the new science of human beings’ early gestation; and so forth.
So, now to the arguments Adler does make.
One. “As most originalists believe it is the [privileges or immunities] clause that is the source of substantive rights under the Fourteenth Amendment,” and that clause extends only to citizens “born or naturalized in the United States,” “an originalist could stop there and conclude that the 14th Amendment does not extend any substantive right to the unborn.” Red herring. Regardless of whether the equal protection clause extends any substantive rights (and originalists such as Christopher Green suggest it might), we do not need to prove that it does. We need only to prove that the clause secures the protection of the laws to the unborn on the same basis that they are secured to the born.
Two. The unborn are not persons within the scope of any clause of the Constitution other than its due process and equal protection clauses, particularly not within Section 2 of the 14th Amendment, the enumeration clause. But it simply doesn’t follow that the unborn are excluded from the due process and equal protection clauses. Aliens and corporations are also within those clauses but almost no others. (Resident aliens may be enumerated, but by convention neither corporations nor the unborn are.) There is nothing dubious or anomalous about the all-embracing scope of the due process and equal protection clauses, which were conceived as – and by their own terms are – great foundational anchors or guarantors of the natural rights of which Blackstone wrote, and so as going far deeper than the conventions governing censuses, and as being valid against all arms of government, even Congress itself (their primary guarantor under Section 5 of the Amendment).
Three. Corporations have been brought within the protection of due process and equal protection only for some purposes, and only because the Court has looked (as in Pembina in 1888) through the corporate veil to the natural persons who enjoy due process or equal protection rights. Too quick. The more stable and adequate foundation for the due process and equal protection rights of corporations is their appearance in the legal taxonomy of persons as natural and artificial, exemplified in the chapters of Blackstone’s Commentaries that begin with the status and rights of the child en ventre sa mere and end with corporations as artificial persons (with little or no concern to peer behind the veil). And the unborn, too, neither have nor need rights beyond a few fundamental rights, above all to life pending their full emergence into the public world.
Four. “There is zero evidence that [the due process] clause was ever understood to prohibit abortion. . .” and “the Due Process Clause of the 5th Amendment was never interpreted or understood to impose any limitations on abortion within the District of Columbia.” An absurd distraction. The limitations on abortion in the District of Columbia, from the moment of its formation out of Virginia and Maryland, derived not from the 5th Amendment, nor from statute, but from the common law as it had applied in Virginia and Maryland (not to mention all the other states). Under that common law: (i) Every elective abortion, however early in pregnancy and however skillfully conducted, was murder if it resulted within a year and a day in the death of the aborted woman; (ii) every elective abortion, however early, was murder if the child it sought to destroy survived birth even by moments before succumbing from the abortifacient damage; (iii) every elective abortion of a woman “quick with child” was a “great misprision” or serious misdemeanor, at least if it succeeded in causing the child’s death before or after birth, and until the 19th century “quick with child” was widely understood to mean as from the sixth week of pregnancy.
The due process clause, whether of the 5th or the 14th Amendment, would only have been engaged if a territorial or state legislature had purported to deny the unborn these common law protections of their right to life. But the entire thrust of legislative action about abortion from the 1820s through the 19th century (and down to 1960) was not to deny but to strengthen that already robust common law protection of the right to life by prohibition of elective abortions. Legislatures in states where a court had (mis)interpreted “quick with child” to mean “from quickening” (about the 15th week of pregnancy) were prompt to plug the gap and extend rule (iii) to even the earliest stage of pregnancy. This they did, usually, with unanimity, for the sake of the unborn child and the health and life of the mother. Indeed, this was true in D.C. itself, which took legislative actions in 1855 and 1872 to clarify its prohibition against abortion “in any stage of pregnancy.”
Five. “Few states have ever treated abortion as fully equivalent to intentional homicide.” But some have treated elective abortion as manslaughter, and the other jurisdictions, more numerous, treated it as a serious offense, while marking the unborn child’s unique dependence, absence from the social world, unknown characteristics and so forth, by following the common law (as stabilized definitively in the 17th century) in treating it as a sui generis serious offense, not itself named homicide, but classified among offenses against the person.
“Equal protection of the laws” does not require uniformity of treatment, but absence of distinctions lacking rationally sufficient basis. A margin of appreciation allows for distinctions in penalties between murder of various degrees, manslaughter of various kinds, and abortion—all of which existed before the abortion “reform” laws of the 1960s, had a rational basis, and were constitutionally permissible.
Six. Appeals to the equal protection clause were not made by the 19th century abortion-law reformers. So it was no part of the original meaning of the clause that the unborn be protected by it. Too quick. Adler ignores the article in which Finnis elaborated the ways in which the original public meaning of these clauses was obscured by historical circumstances. A taste:
In all such matters, the equal protection clause (and somewhat similarly the due process clause) seemed to everyone irrelevant: Race discrimination aside, the amendment would not be engaged unless the state’s legal protection of some class of person’s rights or interests had been recently reduced.
Our brief summarily recalls how even the most obvious appeals to the equal protection clause, to advance the cause of women’s rights to qualify as advocates and so forth, were never made:
For example, litigants fighting discrimination against women appealed to the Amendment’s first sentence but never its Equal Protection Clause. That is inexplicable except based on early assumptions about that Clause’s application that would also have blocked early appeals to the Clause by those seeking to bolster fetal protections. These blocking assumptions, when articulated by courts, proved to concern not the meaning of “any person” but the import of “deny … the equal protection of the laws.” They were soon rejected. Under the corrected understanding of “equal protection,” plus the public meaning that the Clause’s “any person” phrase always had, the Clause protects the unborn against state laws permissive of elective abortion.
Against the background of such silences about conspicuously apparent real-time denials of equal protection to walking-around persons, it is simply false to say, with Adler, that “the absence of a single dog barking [about abortion] in any state, is more than conspicuous.”
Our brief recalls the established authorities about original public meaning, such as the Dartmouth College case, that show how the inattention of the Founders and founding generations to the full authentic scope of their chosen legal terms is not decisive against the weight of evidence about those terms’ established meaning and applicability.
Seven and lastly, our reading of the 14th Amendment would “greatly distort our constitutional structure” by requiring or authorizing Congress and the federal judiciary to “rewrite state laws and mandate their enforcement.” But it is six or seven decades too late to take this complaint seriously. Whatever the uproar that would follow any reversal of Roe, the judicial supervision of state (or congressional) abortion law that would be needed – if the reversal took the form we propose – would neither in range nor in content be anything like as ambitious as many of the forms of judicial supervision mandated since Brown v. Board of Education. Again, Adler passes by in silence what Finnis sketched about this issue, cross-referenced in our Brief. The Court would need to set some minimum standards of sufficient prohibition of elective abortion, but beyond these minima, which would presumably be strongly related to the historic standards in place everywhere before 1960, everything would be for the states and their people.
So both the First and the Second Premises are sound, and the Conclusion follows. Of course, the people of the nation retain ample power to amend the Constitution if they are dissatisfied with the Conclusion – with what their predecessors in 1868 wrought by way of constitutional underpinnings for the common law protections of human beings in the womb, protections they assumed were constitutionally sufficient and in need, at most, of marginal extensions and removal of procedural obstacles to enforcement. No one then, even the feminists, imagined Roe’s fantastic “common law liberty of abortion,” or spoke or conducted legal discussions about “fetuses.” Anyone who does so cannot understand the original public meaning of the 14th Amendment. Adler does not make that mistake. But he has, we think, misunderstood the Amendment’s Equal Protection implications for Roe, Casey, and Dobbs.
John Finnis is professor of Law and Legal Philosophy emeritus at Oxford University and Biolchini professor of law emeritus at the University of Notre Dame. Robert P. George is McCormick professor of Jurisprudence at Princeton University.