The dominant position among critics of Roe v. Wade is that the the Constitution “is silent about abortion” and “leaves it to the states”: It does not explicitly require that states adopt any particular policy toward abortion nor even implicitly point toward one. This view is more plausible than the one outlined in Roe itself. But I think it is not quite right. I’ve written before on NRO that I think the best reading of the Fourteenth Amendment is that it (a) requires state governments to extend the protection of homicide laws to unborn children and (b) authorizes Congress to enforce that requirement. Joshua Craddock has an excellent law-review article making the case for (a) at length.
Since no Supreme Court justice has ever expressed agreement with (a)—and some justices critical of Roe, such as the late justice Antonin Scalia, have explicitly disagreed with it—there is little chance that the Court will adopt it in the foreseeable future. But I think the question is nonetheless worth engaging, especially because it is relevant to what Congress can and should do with respect to abortion.
A flat-footed, judicial-supremacist reading of Craddock’s argument might suggest that the proper reading of the Constitution would impel the Supreme Court to require, not just allow, laws against abortion. It might be thought, that is, that interpreting the Fourteenth Amendment to cover unborn children means that abortion should be prohibited from the bench. Craddock, however, notes that his view implies that either Congress or the Court should intervene to protect unborn children. For three reasons, the argument for congressional action seems to me to be superior to the argument for judicial action.
First, as noted above, the amendment explicitly charges Congress, in its fifth section, with enforcing it. (That the drafters might not have placed all their trust in the Supreme Court after a war that the institution had done a fair amount to cause is understandable.)
Second, the best example we have of a constitutional prohibition on certain conduct by non-governmental actors—the admittedly awkward example of, well, Prohibition, with a capital P—relied on congressional legislation to make it effective. The Eighteenth Amendment’s second section gave Congress and the states concurrent power to enforce Prohibition, which led to the Volstead Act. If we read the Fourteenth Amendment to imply a ban on abortion, its fifth section is the equivalent of the Eighteenth Amendment’s second section.
Third, there’s the practical question: How would the Supreme Court enforce a sweeping prohibition on abortion? It’s not as though it is going to be able to force local prosecutors to initiate cases against abortionists. But this is not only a practical question. Laying out the details of an enforcement regime will inescapably require determinations that are legislative in character, and which the Constitution cannot reasonably be read to authorize the Supreme Court to make.
I would not, then, say that the Constitution is silent about abortion or leaves the issue to the states, but neither would I say that it leaves it to the courts. If states do not live up to the constitutional requirement that they provide all persons the protection of the laws—to the requirement properly understood, which includes providing legal protection to unborn persons—Congress has an affirmative duty to step in. (How it should do so is a prudential determination.) This duty, it seems clear, can be enforced only by voters. In the same way, only the voters can enforce the congressional duty to see to it that our government follows the constitutional provisions about war and peace.
To be sure, that’s another inconvenient analogy. Especially in modern times, we are inclined to think that a constitutional guarantee that the courts cannot enforce is a dead letter. But this is not entirely true and should not be. Occasionally one comes across a pro-lifer—a politician or an activist—who wonders whether a limited federal government has any business passing legislation restricting abortion. The most important implication of the pro-life argument about the meaning of the Fourteenth Amendment is that the constitutionally conscientious pro-life congressmen need not worry that he lacks the legitimate authority to enact protections for unborn children. He has, indeed, an affirmative constitutional obligation to do what he can to provide such protection.