Is Abortion Unconstitutional?

Wishful thinking by conservative scholars opposed to abortion is an activist impulse that must be resisted.

This essay first appeared in Law & Liberty on March 17, 2021 (here). Thanks to How Appealing, Real Clear Policy (here), and The Originalism Blog (here).

Nearly 50 years after it was decided, Roe v. Wade (1973) and the purported constitutional right to abortion it established remain remarkably controversial. During my adult lifetime, this controversy has revolved around the soundness (or unsoundness) of Roe as a matter of constitutional interpretation; the goal of appointing justices who would overturn Roe as a precedent, returning the issue of abortion to the states; discerning the limits of the states’ right to regulate abortion under Roe and its progeny; and, to a lesser extent, the efficacy of enacting a Human Life Amendment that would not only overturn Roe but expressly ban abortions in most cases.

Liberals defend Roe v. Wade as a necessary and legitimate safeguard of a woman’s “right to choose,” and criticize any state restrictions on abortion as harmful to women. The doctrinal basis for a constitutional right to an abortion has always been, and remains, flimsy. When a bitterly-divided Supreme Court cobbled together a rationale for upholding Roe in Planned Parenthood v. Casey (1992), the majority had to resort to what critics derisively refer to as the mystery passage: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. 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.” Nevertheless, abortion has become a feminist sacrament and the Left prizes Roe as a civil rights precedent on par with Brown v. Board of Education (1954).

As a matter of constitutional law, originalists such as Robert Bork, Lino Graglia, and Antonin Scalia argued (correctly, in my view) that, because the Constitution is silent on the issue of abortion, the states should be free to regulate abortion—or not–as they see fit.

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

What if the Reconstruction Era Fourteenth Amendment, instead of protecting a woman’s right to an abortion, protected the unborn child’s right to life? What if the 39th Congress intended to include the unborn as “persons” under the Due Process Clause? So argues Professor John Finnis of Notre Dame’s law school in a provocative article in the April 2021 issue of First Things. Finnis acknowledges that the text of the Fourteenth Amendment, drafted in 1866 and ratified in 1868, is silent on the subject of abortion, as is the drafting history and congressional debates on the measure. He nevertheless contends that the intent to protect the unborn is evident in the reliance of proponents of the Civil Rights Act of 1866 (the provisions of which the Fourteenth Amendment was designed to uphold) on William Blackstone’s Commentaries on the Laws of England (1765).

Blackstone assigned the beginning of life (and thus legal protection) to the unborn upon quickening. At least “by the dawn of the nineteenth century,” Finnis argues, abortion was prohibited under English law from the time of conception. Therefore, if the Fourteenth Amendment was intended to confer on the newly-freed slaves (and others) the rights of Englishmen (as Finnis contends, quoting James F. Wilson, the sponsor of the Civil Rights Act of 1866), the term “any person” in the Due Process Clause includes the unborn. Ergo, abortion deprives the unborn of life without due process of law, and is therefore unconstitutional. In other words, states would be constitutionally forbidden to permit abortion.

Finnis closely explores the reasoning of Roe and delves into the common law background of the concept of “quickening” in America during 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 correct about the derivation of the Fourteenth Amendment and the meaning and significance of Blackstone’s Commentaries—even if, contra Roe, unborn children are “persons” entitled to due process—does that mean, as the title of Finnis’ article suggests, that “Abortion is Unconstitutional”?  Not necessarily. Section 1 of the Fourteenth Amendment reads,  “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Where is the state action?

Take away Roe v. Wade, restoring the legal landscape as it existed prior to 1973: Some states outlawed abortions, some states allowed them, and others were in between, depending on the stage of pregnancy, reasons for the abortion, and so forth. In no states—unlike under China’s “one child” policy—were abortions compelled. Prior to Roe, the state did not require women to have abortions—it was and is the decision of the pregnant woman. Absent direct involvement of the state in the allegedly unconstitutional deprivation, there is no violation of the Fourteenth Amendment.

Thefts and robberies occur every day, and no one alleges that the deprivation of the owners’ property at the hands of a thief violates the Due Process Clause—because there was no state action. True, there are generally laws against stealing, but in some jurisdictions threshold levels of theft are required to warrant arrest or even a citation. Are shop owners in such jurisdictions unconstitutionally deprived of their property without due process because a shoplifter stays below the threshold amount?  Some types of homicide are permitted under state law, such as self-defense. In some states, the defense is quite broad, including the so-called “castle doctrine” (permitting the use of deadly force against an intruder in one’s home) and “stand your ground” laws (permitting the use of deadly force outside one’s home with no duty to retreat). Do such laws constitute the state’s deprivation of the decedent’s life without due process, so long as the actor was a private citizen? Of course not, and similar examples could continue ad infinitum. 

The state’s passive role in permitting things to happen between private actors, without intervention, does not constitute state action, and cannot reasonably be conjured into the basis of a constitutional claim based on violation of the Due Process Clause.

Nor is the Equal Protection Clause a plausible basis for banning abortion under the Fourteenth Amendment. As Gerard Bradley has noted, “States enjoy considerable freedom (consistent with the Fourteenth Amendment) to specify conditions under which use of deadly force and acts which create foreseeable risks to the lives and health of others may be performed without criminal liability.” Legislative classifications are generally reviewed under the deferential rational basis test, and courts would be understandably reluctant to micromanage the myriad distinctions, variations, and omissions in states’ penal codes. Laws “discriminate” among post-natal human beings in countless respects, and there is no reason to believe that judicial scrutiny would—or should—be greater for prenatal persons.

The state is not required to criminalize all behavior that a government actor would be forbidden to do on behalf of the state. Obliterating the distinction between private and state action would dangerously empower the federal courts and invite tremendous mischief.

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

The jurisdiction of human law is not to secure purity of morals or good character. It is to do and preserve justice among persons in their dealings and interactions with each other—a justice that is a matter of external acts that are reasonably fair, rather than of fully upright (let alone heroic or saintly) motivations and reasonings.

Judgments about what it is reasonably fair to permit do not have the permanence and precision that one can hope for in relation to the relatively few moral norms that exclude intentional destruction of basic human goods. This relative imprecision is all the more to be expected when the question is what conduct, and what end-results—in a uniquely intimate competition of interests—should be prohibited, or can fairly be permitted, by state law. But whether in determining what is to be legally permissible or in settling upon penalties for the prohibited, doing what is reasonably fair depends on candidly acknowledging the true facts of the matter about whose interests are at stake. (Emphasis in original.)

This may be unassailable as a matter of moral philosophy (a question I admit I am not equipped to judge), but it falls short as a matter of constitutional argument. Only government actors can violate the Fourteenth Amendment. 

To be clear: I am not defending Roe v. Wade.  It is an abominable decision. I concur with Finnis’ conclusion that “prohibiting the killing of the unborn is a matter of simple justice to the most vulnerable among us.” However, upon the overruling of Roe, it will be incumbent on the legislatures of each of the states to reach that conclusion and enact laws to that effect. The Fourteenth Amendment, even if construed as Finnis urges, does not support a nationwide ban on abortion by judicial decree. Even the various iterations of the (to date unsuccessful) Human Life Amendment do not rely merely on conferring personhood on the unborn; they either explicitly ban abortion or authorize states to do so.

The Constitution is silent on abortion. The Court was wrong to “discover” a right to abortion in the Fourteenth Amendment.  It would be an equivalent act of judicial activism to reach the opposite conclusion. Abortion is abhorrent, but (contra Finnis) it is not unconstitutional.

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