Bench Memos

Law & the Courts

Strategic Thinking on Abolishing Abortion

The website Ius & Iustitium is dedicated to advancing what it calls “common good constitutionalism” and to opposing originalism and textualism. A writer there who goes by the initials JAF poses several questions and objections regarding my critique (here and here) of the argument that the Fourteenth Amendment prohibits the states from adopting permissive abortion laws. I’m happy to answer them here.

1. JAF asks: “If you believe, as Whelan sincerely does, that abortion is the murder of untold millions, why reject a more than plausible argument, framed in your preferred judicial philosophy, just so that you can reserve matters to the individual states?”

(A) I do not reject the “more than plausible argument … just so that [I] can reserve matters to the individual states.” I reject it because I don’t think it’s right, and the consequence—not (as the question suggests) my motive—is that the matter is for the people of each state to address.

(B) In my judgment, the argument has zero chance of prevailing with the current Court, and if the case for overturning Roe were presented as hinging on it, the prospects of overturning Roe would be much diminished.

2. JAF states that “there’s something strangely tone-deaf about saying a first-order evil such as abortion should be a matter of states’ rights.”

It’s not my position that the matter of abortion “should be a matter of states’ rights.” I would happily support a constitutional amendment that broadly prohibited the states (and the federal government) from allowing abortion.

3. JAF contends that restoring abortion policy to the states “makes short-term strategy opposed to long-term strategy.”

I don’t get the point. Overturning Roe would eliminate the Supreme Court’s lie that abortion is a constitutional right. To be sure, the foreseeable immediate result of restoring abortion policy to the states is that many states would allow abortion. But it will be the challenge for pro-lifers to build the case for pro-life laws throughout the United States and, if possible, ultimately adopt a constitutional amendment. So I see no conflict between short-term strategy and long-term strategy.

I also don’t see how imagining that there might some day be a Supreme Court replete with Justices that would adopt the constitutional-personhood argument qualifies as a strategy. I’d love to hear how such Justices are going to be nominated and confirmed any time in the foreseeable future.

4. JAF complains that originalism “has had 50 years to overturn Roe” and has failed to do so. In the mode of “to a hammer, everything is a nail,” he says that this “is yet another example of the deficiency of positivist legal reasoning.”

For decades, pro-lifers have been working to build a Supreme Court that will overturn Roe. The appointments of Sandra Day O’Connor, Anthony Kennedy, and David Souter were huge setbacks in that effort, but I don’t see how originalism (or “positivist legal reasoning”) can be made to bear the blame for their shortcomings.

Hardly anyone would have imagined thirty years ago that a Republican president would nominate, and a Senate would confirm, someone who is overtly pro-life and who openly embraces originalism. But that’s exactly what happened last fall with President Trump’s appointment of Justice Amy Coney Barrett.

For the first time since long before Roe, the Court now has the makings of an originalist majority—four justices (Thomas, Gorsuch, Kavanaugh, and Barrett) who identify as public-meaning originalists and a fifth (Alito) who has called himself a “practical originalist”—that, together with the Chief Justice, ought to be ready to inter Roe. Maybe that won’t happen, but what a strange time to declare the failure of originalism.

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