I respectfully dissent from Wednesday’s National Review editorial, which supports Senator Lindsey Graham’s proposed federal ban on abortions after 15 weeks. When, in the last paragraph of the editorial, they get around to first-order question of what the supposed constitutional source of this federal power is, the editors proclaim, “We are persuaded that the undoubted federal power to defend basic civil rights under the 14th Amendment” does the trick. Count me out of the “we,” for I harbor significant doubts.
The “who would dare doubt this” appeal is surprising to find in our pages. Until about five minutes ago, the protection of abortion itself was “undoubted” because progressives were haughtily confident that no one would call them on their dearth of constitutional mooring. I fear my colleagues go with “undoubted” because they don’t want to say aloud what this implicitly means: They believe the supposed federal power to regulate abortion is a matter of substantive due process. It’s just that, unlike progressives, they undertake to accomplish a limited ban rather than make it available on demand.
Of course, having for decades held the concept of substantive due process in disdain, and rightly so, we would prefer to rely on a rhetorical flourish about “basic civil rights” — one eerily reminiscent of Justice Anthony Kennedy’s wooly jurisprudence of liberty, which was so impossible to defend as a matter of constitutional law that he notoriously resorted (as Justice Antonin Scalia scathingly observed) to the “sweet mystery of life” theory (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”).
No, our editorial is not that out there. Still, basic civil rights? What are they? Where in the 14th Amendment are they located? And, the answer on abortion being obviously nowhere, what do you suppose the Left will do with “basic civil rights” once it has our imprimatur?
Given the extent to which National Review has quite appropriately opposed expansions of federal power based on progressives’ endlessly elastic interpretation of the commerce clause, the only plausible source of federal power to protect unborn life by outlawing abortion is the 14th Amendment. The editors concede as much. Within that amendment, however, there are only two conceivable sources: the due-process clause (out of which the contrivance of substantive due process was fabricated) and the privileges or immunities clause.
On the latter, I am persuaded by the brilliant work of Evan D. Bernick and Randy E. Barnett (The Original Meaning of the Fourteenth Amendment) that the privileges or immunities clause could be a source of expanded civil rights over time. But as a plain textual matter, the clause’s protections apply only to citizens of the United States. There is no sensible way to construe unborn children as citizens of the United States. As Jonathan Adler has explained, citizens are those “born or naturalized in the United States” — the unborn have never been understood to fit this category.
That leaves substantive due process. Many constitutional conservatives would shun any reliance on this dubious doctrine. But assuming it is available to us (and I assume the editors are relying on it), Dobbs has most recently instructed that rights not enumerated in the Constitution have no call on 14th Amendment protection unless they are “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty” (quoting from Washington v. Glucksberg).
Personally, I believe a ban on abortion would be “implicit in the concept of ordered liberty” in a nation that honors a culture of life. Alas, that is very different from saying we currently inhabit such a nation.
Moreover, in light of the last century of life under Roe and its progeny, as well as the loosening of abortion restrictions that was underway in the states in the years prior to Roe (and which constitutional conservatives have rightly argued that Roe invalidly interrupted), I simply don’t see how a right against abortion can rationally be seen as deeply rooted in the nation’s history and tradition. I wish it were otherwise, but we have a very checkered history and tradition in this regard.
If the Left were proposing something along the lines of what our editorial is proposing, the first thing we would do is pin the proponents down on the constitutional roots of their claim of federal power. We would not let them get away with “undoubted.”
I am also unmoved by the editorial’s catalogue of positions taken by Republicans and conservatives over the years that have implied a federal power to outlaw and regulate abortion. This is not a stare decisis question. (You may remember stare decisis as the doctrine of respect for precedent that we vigorously argued was no reason to retain the Court’s pro-abortion cases.) It is also not a hypocrisy test. When we were in the Roe trap, everything was unconstitutional — we were trying to minimize the damage of a world in which abortion-on-demand was invalidly and monstrously deemed a constitutional right.
Now we are in a post-Dobbs world where the Constitution is back in force. We are not pushing against an unconstitutional order. We are proposing a federal power for which there is no constitutional support.
The regulation of abortion is a state issue. The federal constitution has nothing to say about it. If we’ve now suddenly decided it does, nothing prevents a Democrat-controlled Congress from imposing Roe on the nation by legislation, just as the Supreme Court imposed it by judicial decision. By proposing a federal regulation ourselves, we are gutting the rationale for arguing in the future that the Democrats’ gambit lacks constitutional legitimacy. We’ll be sorry about that.
In any event, I humbly ask my colleagues exactly what they would ask if Democrats were trying to do something like this: Please, tell me exactly where in the Constitution you locate the power of the federal government to outlaw abortion. Don’t tell me it’s “undoubted,” because I am doubting. Give me a clause — and if you’re relying on substantive due process, say so . . . and explain why it’s okay when we do it but not when they do it.