It has been pointed out to me that, in contending that the only conceivable sources of 14th Amendment federal power to ban abortion were the privileges-or-immunities clause or substantive due process, my post last night omitted the equal-protection clause as a possibility. While others have made this argument, I confess to never having put much stock in it.
Here, I admit my bias: I believe a great deal of mischief has been done by claiming, purportedly based on equal-protection principles, that it is a constitutional wrong to discriminate between categories that can be distinguished on completely rational grounds.
The equal-protection clause requires the state to afford equal protection of the laws to persons. As already noted in my post, our law has always drawn distinctions between born persons and unborn persons — as laid out in some detail in Jonathan Adler’s analysis, to which I linked in my post.
For what it’s worth, I believe Justice Scalia was right in contending that strict scrutiny — the top level of judicial review for state distinctions claimed to violate equal protection — should be reserved only for “fundamental rights” that qualify as “interests traditionally protected by our society.” (That, of course, is beside distinctions based on race and national origin, to which the Court applies 14th Amendment equal protection.) Scalia lamented that the Court preferred a more freewheeling notion of what a “fundamental right” is; that is a big part of why equal protection can be a promiscuous doctrine, as the Left is encouraged to use it to eradicate distinctions based on American tradition.
In any event, I meant no disrespect to the equal-protection argument. I simply have not given it much credence. I may be wrong about its force, but that would mean it had greater potential to be used against constitutional conservatives if we stretch it to categories it has never been understood to cover, in order to justify federal preemption in an area of law traditionally and prudently left to state control.
I would happily support a constitutional amendment protecting the unborn from the moment of conception. I can’t support contorting the Constitution into saying something it doesn’t say. That is something constitutional conservatives spend most of their time fighting against.