Is Abortion Unconstitutional?

Almost 50 years after his decision, Roe v. Wade (1973) and the alleged constitutional right to abortion that established it remain remarkably controversial. During my adult life this controversy revolved around the solidity (or ambiguity) of Roe as a matter of constitutional interpretation; the goal of appointing judges who would overthrow Roe as a precedent and return the issue of abortion to states; Recognize the limits of states’ right to regulate abortion among Roe and his descendants; and, to a lesser extent, the effectiveness of passing a change in human life that would not only overthrow Roe but, in most cases, expressly prohibit abortions.

Liberals defend Roe v. Wade as a necessary and legitimate protection of a woman’s “right to vote” and criticize any state restrictions on abortion as harmful to women. The doctrinal basis for a constitutional right to abortion was and always is weak. When a bitterly divided Supreme Court cobbled together a rationale for maintaining Roe in Planned Parenthood v Casey (1992), the majority had to resort to what critics mockingly refer to as the Mystery Passage:

These matters, which concern the most intimate and personal decisions a person can make in their life, decisions that are central to personal dignity and autonomy, are central to the freedom protected by the fourteenth amendment. At the center of freedom is the right to define one’s own concept of existence, meaning, the universe and the mystery of human life.

Nonetheless, abortion has become a feminist sacrament, and the left recognizes Roe as a civil rights precedent on par with Brown v Board of Education (1954).

For constitutional reasons, originalists like Robert Bork, Lino Graglia, and Antonin Scalia argued (rightly in my view) that states should be free to regulate – or not – regulate abortion as they see fit.

But what if everyone was wrong about the premise of the debate?

What if the fourteenth change in reconstruction time protected the unborn child’s right to life instead of protecting a woman’s right to an abortion? What if the 39th Congress intended to include the unborn child as “persons” in the due process clause? This is what Professor John Finnis of Notre Dame Law School argues in a provocative article in the April 2021 issue of First Things. Finnis admits that the text of the Fourteenth Amendment, drafted in 1866 and ratified in 1868, is silent on the subject of abortion, as is the draft story and the debates in Congress on the measure. He contends, however, that the intention to protect the unborn was based on proponents of the Civil Rights Act of 1866 (the provisions of which the fourteenth amendment was intended to comply with) relying on William Blackstone’s comments on the laws of England (1765) .

Blackstone assigned the beginning of life (and thus legal protection) to the unborn in acceleration. At least “at the beginning of the nineteenth century,” argues Finnis, abortion was forbidden under English law from conception. If the fourteenth amendment was to give the newly freed slaves (and others) the rights of the English (as Finnis claims, citing James F. Wilson, sponsor of the Civil Rights Act of 1866), the term “any person” should be used in the Due process clause includes the unborn. Ergo, abortion robs the unborn child of life without proper legal recourse and is therefore unconstitutional. In other words, states would be constitutionally prohibited from allowing abortion.

Finnis examines Roe’s reasoning in depth and delves into the common law background to the concept of “acceleration” in America in the 19th century. Finnis is a world-class philosopher, and his philosophical arguments are compelling. But wait a minute. The article is about constitutional law, not moral philosophy.

Even if Finnis is right about the derivation of the Fourteenth Amendment and the meaning and significance of Blackstone’s comments – even if unborn children to Roe are “persons” entitled to due process – it means like the title of the article von Finnis implies that “abortion is unconstitutional”? Not necessarily. Section 1 of the fourteenth amendment states, “No state may deprive any person of life, liberty or property without being required by law.” Where is the state action?

Erasing the distinction between private and state action would dangerously empower the federal courts and invite enormous nonsense.

Take Roe v. Wade with and restore the legal landscape to what it was before 1973: some states have banned abortions, some states have allowed them, and others fell in between depending on the stage of pregnancy, reasons for the abortion, and so on. In no country – unlike China’s “one-child” policy – forced abortions. Before Roe, the state did not require women to have abortions – this was and is the decision of the pregnant woman. Without direct participation of the state in the allegedly unconstitutional privation, there is no violation of the fourteenth amendment.

Thefts and robberies happen every day, and no one claims that a thief’s removal of property from owners is against the due process clause – because there was no government action. While there are generally anti-theft laws in place, some countries require theft thresholds to warrant an arrest or even a quotation. In such jurisdictions, are shopkeepers unconstitutionally robbed of property without due process because a shoplifter stays below the threshold? Some types of murder are allowed under state law, such as self-defense. In some states, the defense is quite broad, including what is known as the “lock doctrine” (which allows the use of lethal force against an intruder in your home) and the “stand your ground” laws (which allow lethal force outside your home allow) without obligation to withdraw). Do such laws represent the deprivation of the deceased’s life by the state without due process, even though the actor was a private individual? Of course not, and similar examples could go on indefinitely.

The passive role of the state in facilitating events between private actors without intervention does not constitute state action and cannot reasonably be relied on on the basis of a constitutional claim based on a breach of the procedural clause. The equal treatment clause is also not a plausible basis for prohibiting abortion under the fourteenth amendment. As Gerard Bradley noted, “States enjoy considerable freedom (consistent with the Fourteenth Amendment) to determine the conditions under which the use of lethal force and acts that create foreseeable risks to the life and health of others are carried out without criminal liability can be. ” Legislative classifications are generally reviewed as part of the deferential rational basis test, and the courts would understandably be reluctant to administer the myriad of distinctions, variations, and omissions in the states’ criminal codes. Laws “discriminate” postnatal people in a myriad of ways, and there is no reason to believe that judicial scrutiny would or should be greater for prenatal individuals.

The state is not obliged to criminalize all conduct that would be prohibited by a state actor on behalf of the state. Erasing the distinction between private and state action would dangerously empower the federal courts and cause enormous nonsense.

Finnis indirectly acknowledges the lack of government action in the middle of his article:

The competence of human right is not to guarantee the purity of morality or good character. It’s about doing and maintaining justice between people in dealings and relationships with one another – a justice that involves external actions that are reasonably fair, rather than completely upright (let alone heroic or sacred) motivations and arguments .

Judgments about what is appropriate to allow do not have the consistency and precision one can hope for in relation to the relatively few moral norms that preclude the deliberate destruction of basic human goods. This relative inaccuracy is all the more to be expected since the question arises as to which behavior and which end results – in a uniquely close competition of interests – should be prohibited or legally permissible under state law. However, whether it is a matter of determining what should be legally permissible or determining penalties for what is prohibited by what is reasonably fair depends on an open acknowledgment of the real facts of the matter whose interests are at stake. (Emphasis in the original.)

This may be unassailable for reasons of moral philosophy (a question I have to admit, I am unable to judge), but it is inadequate for constitutional reasons. Only government actors can violate the fourteenth amendment.

To be clear: I defend Roe v. Not calf. It’s a hideous decision. I agree with Finnis’ conclusion that “the prohibition of killing the unborn is a matter of simple justice for the weakest of us”. However, after the Roe repeal, it will be up to national lawmakers to reach this conclusion and enact appropriate laws. The fourteenth amendment, while interpreted as Finnis calls for, does not endorse a nationwide ban on abortion by court order. Even the various iterations of the (so far unsuccessful) change in human life are not based solely on imparting personality to the unborn. They either expressly prohibit abortion or authorize states to do so.

The constitution is silent on abortion. The Court wrongly “discovered” a right to abortion in the Fourteenth Amendment. It would be an equivalent act of legal activism to arrive at the opposite result. Abortion is abhorrent, but (against Finns) it is not unconstitutional.

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