With what appears to be the best opportunity in almost 30 years to reverse Roe v. Wade, the pro-life forces are split on how the Court should do it. Some (most notably Prof. Robbie George of Princeton and Prof. John Finnis of Notre Dame) believe the Court should recognize that the due process and equal protection guarantees of the Fifth and Fourteenth Amendment, which adhere to “any person,” include the unborn. Others (most notably the late Judge Robert Bork and Justice Antonin Scalia and including Clarke Forsythe of Americans United for Life) argue that the Court should simply say that abortion is not a fundamental right protected by those amendments and leave how it is regulated to the States. Upon analysis, it seems the latter group, whom I will call “federalists,” violate many originalist interpretation principles and, while properly observing that the Constitutional prohibitions as interpreted by the Supreme Court only reach governmental action, misread the significance of that.
The federalists have five basic, cascading arguments, which I will analyze in turn. First, they point out that words like “abortion” and “pre-natal” and “unborn” do not appear in the text of the Constitution. Second, they note that there was nothing said about abortion in the congressional and ratification debates over the Fourteenth Amendment in the mid-1860s. Third, they contend that, if the matter of abortion were not simply left to the States, the federal courts will be as much in the abortion regulation business as they are now, only from the other side of the fence. Fourth, relatedly but somewhat inconsistently with the third argument, they postulate that, even if “person” in the Fifth and Fourteenth Amendment included the unborn, it would not help stop abortion because the amendments only touch State action and abortion is done privately. Finally, and fifth, they prognosticate that, if left to the States, contention over the matter will simmer down and some type of national truce will be achieved as each State or locality fixes its own regulation of abortion free from federal judicial interference.
The Text and Legislative History
Starting from the top, far from being true to a textualist interpretation, stopping the analysis of the text with the simple statement that the Fifth and Fourteenth Amendments do not expressly define “person” to include the unborn violates at least three textualist principles. First, one does not limit the natural understanding of the text unless failure to do so would render an absurd result. It was well understood at the time of the adoption of the amendment that an unborn child was a unique person, and recognizing that does not lead to an absurd result. A second, relevant interpretational principle is that, when the legislators alter how they modify the same term, it must be assumed they did so with understanding and with a purpose. The Fourteenth Amendment in its definition of national citizenship includes “persons born.” But neither the Due Process nor the Equal Protection Clause is limited to persons “born.” Instead, they explicitly apply to “any person.” A third principle is that when the same modifier is used in the same instrument, the same meaning is normally intended. The Due Process and Equal Protection Clauses also speak to “any law” and “any State”; neither any State nor any law is left out. Neither is any person, including the unborn.
The second basic argument of the federalists, that there was no discussion of abortion during the debates in Congress and ratifying conventions, proves nothing. To start with, it is somewhat surprising that textualists would resort to silence in legislative history or, at least, that they would attempt to put much weight on it. The interpretation principle more applicable is that used by the Supreme Court when it was interpreting the Civil Rights Act of 1964 in Oncale v. Sundowner Offshore Services, Inc., to determine whether discrimination by “sex” includes that against both men and women, even though it was discrimination against women that motivated adoption of the legislation and discrimination against men was not mentioned in the legislative history. In the words of Justice Scalia for the Court, “prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Soon after adoption of the Fourteenth Amendment, it was settled in The Slaughterhouse Cases,decided in 1872, that the Fourteenth Amendment covers more than just deprivations based on race. And the reason there was no discussion of abortion goes beyond the fact that racial discrimination was the principal evil being addressed by the Fourteenth Amendment. When it was adopted, abortion was already criminalized in every State and territory. In that context, it would have been odd if it had been discussed, because there was no violence against the unborn that was not already being addressed by State statutes and the common law. The States were already giving due process and equal protection to unborn persons.
Federal Regulation in Obverse
The third basic argument of the federalists, that, if the Fifth and Fourteenth Amendments are interpreted to include the unborn as persons the federal courts will be just as much in the abortion regulation business as they are now, does not follow from experience. The Fourteenth Amendment did not cause a wholesale federal regulation of the homicide laws of the States. If it were recognized that the unborn are part of the class of “any persons,” abortion would become just another form of homicide. Of course, the Fourteenth Amendment does provide national oversight of State action to assure that due process and equal protection are provided, but that does not mean that, by treating the unborn as the human beings they are, it will involve the federal courts in the same type of cases that have been engendered by Roe and its progeny. The abortion cases disrupted the common and statutory law of the States, requiring a whole new regime of regulation to be defined by the federal judiciary.
The State Action Requirement
This leads to the somewhat inconsistent, fourth argument of some federalists that, because abortion is a private enterprise, recognizing the unborn as persons would have no effect whatsoever, because the Fifth and Fourteenth Amendments only regulate governmental action. It is certainly true that the Fourteenth Amendment requires the remedy to be directed at a State official or action; that was established shortly after ratification of the amendment by the Supreme Court in its 1883 decisions in United States v. Harris and The Civil Rights Cases. But arguing that State action would never be involved in abortion regulation overstates the case.
As an initial matter, this argument does not blunt the efficacy of the personhood approach to overturn Roe’s central holding that there is a fundamental right to abort to be found in the interstices of the Constitution. The most fundamental way to defeat that holding, as Justice Blackmun recognized in Roe, is to recognize that fetuses were regarded as persons under the common law and in the Fourteenth Amendment itself. Protection of the unborn at law completely undercuts the idea that there is a constitutional right for a mother to kill her child that she is carrying.
So what is the hesitancy to embrace what was certainly true at common law (as has been repeatedly demonstrated post-Roe, most notably by Joseph Dellapenna in his magisterial The Myths of Abortion History)and, from a textualist standpoint, is the best reading of the Constitution as well? Especially if, as some Federalists argue, they truly believe that there would be no practical effect because no State action is involved in abortion. One answer is that a lawyer argues to maximize the chances of success of her client. The Mississippi Attorney General’s Office in Dobbs has argued only that regulation of abortion should be returned to the States because the Constitution says nothing about the subject. She may well be right that that approach has the most chance of success of saving the Mississippi statute, rather than the personhood approach.
But the stakes are much higher than any given State’s statutory approach to abortion regulation. And one suspects that the federalists, even when arguing that the Due Process and Equal Protection Clauses would be inapplicable to abortion even if the unborn were recognized as “persons” because of the lack of State action in the medical procedure, recognize that the State action requirement would sometimes come into play when an unborn’s life was threatened.
The most obvious flash point would be concerning the laws of States like New York that provide a broad abortion license. Federalists point out that the fact that all States criminalize homicide does not make each murder a violation of the Due Process or Equal Protection Clauses because those crimes are committed by private individuals on private individuals. But the more analogous situation to liberal abortion laws would be if a State passed a law that decreed that lynchings of an entire class of individuals would not be a criminal offense. Such a statute would assuredly be State action and would violate the Fourteenth Amendment, and any member of the affected class could challenge such a law as unconstitutional. Could a fetus threatened with death similarly challenge a liberal abortion law? It would seem that the father or grandparents of a particular unborn child could challenge such an act as “next friend”; perhaps crisis pregnancy centers that would lose clients due to abortion could also do so (similar to abortionists who now may challenge restrictive State laws on behalf of the clients they would otherwise serve); and others might also qualify to defend the fetus, depending on the State’s statutory and decisional law.
Some federalists argue that, because State laws define different categories of homicide and provide various defenses, a State could also freely regulate abortion without fear of violating the Equal Protection Clause. But current distinctions in the homicide laws do not focus on the status of the person who commits the offense, but on the nature of the offense itself. A law providing a broad abortion license to kill all unwanted unborn children focuses on a particular class of individuals who are guaranteed equal protection of the laws. Appropriate counterparts for abortion laws to defenses carved out in homicide statutes would be providing exceptions for rape (an exception triggered by conduct, not class) and saving the life of the mother (basically, self-defense). The unborn are a discrete class identifiable by age and condition; they are not being killed in an abortion because of anything they have done.
It has also been well established since the 1948 decision in Shelly v. Kramer that judicial enforcement is State action subject to oversight under the Fourteenth Amendment. That would bring under the amendment’s scope those State court decisions that find a right to abort under their own State constitutions. In addition, most States currently have laws that allow minors to abort without parental or paternal permission if a court approves it as being in the best interest of the minor mother. The court would now have to recognize that there is another party to such proceedings—the child in utero—and that the Due Process Clause requires that person to be represented before its life can be eliminated. Indeed, in 1885 in McArthur v. Scott, not two decades after adoption of the Fourteenth Amendment and two years after The Civil Rights Cases, the Supreme Court ruled that the Due Process Clause required representation for a child in utero in a property proceeding. How much more so when the child’s very life is at stake? Surely, both the father and grandparents of a child would have standing to request a civil protection order on behalf of an unborn child whose adult mother intended to kill it. If unsuccessful in stopping the event, a wrongful death action would also be a possibility. When ruling on abortion cases such as these, state and federal courts would have to provide equal protection to the class of unborn persons.
The Cultural Effect
The fifth federalist argument, really a practical rather than a legal one, is passing strange. Some posit that, if abortion is simply left to the States, the culture fight over abortion will settle down. Why this would be true, rather than the fight continuing and even intensifying in a multitude of different States and even localities, is not explained. And there seems to be an implied assumption in some writings of federalists that, as a general matter, the democratic process as worked out in the States would generally lead to abortion being outlawed in all but the most extreme situations, such as to save the life of the mother. Why this would be so is also unexplained. At least in the view of many social commentators, our cultural ethos is not shifting toward altruism, but accelerating towards autonomous individualism. Overturning Roe without recognizing that unborn children are persons under the Constitution would likely only accelerate, rather than retard, the movement to enshrine in State laws a woman’s “reproductive right” to terminate what her normally voluntary act has naturally and foreseeably caused, another living person.
It is understandable that the federalists fear that, if the personhood argument is pushed, it might be a bridge too far and those who oppose abortion might not get anything from the Supreme Court. But shortchanging the truth has its own dangers. While the Constitution sets up a federal system with the national government having circumscribed powers, it also shields from the vicissitudes of elections and majority votes certain inalienable rights, including the single most basic right, life itself. The living unborn are human beings, a discrete class and the most vulnerable of our species, and the Constitution, naturally read and properly understood, protects them as persons and guarantees them due process and equal protection of the laws whenever State action is implicated, be it legislative, executive, or judicial. That recognition is essential to help protect unborn children in every State. Assuming the federalists achieve the half-a-loaf solution they have pursued in Dobbs, it will taste sweet at first but will prove neither satisfying nor satisfactory over time.
