Roe v. Wade has been harshly criticized from the time it came down in 1973, and not only by opponents of legal abortion. The eminent constitutional scholar John Hart Ely, though he favored permissive abortion laws, wrote that the Supreme Court had barely attempted to show how a right to them could be derived from the Constitution. Many liberal academics, finding the reasoning in Justice Harry Blackmun’s majority opinion hopelessly flawed, have tried to devise other constitutional justifications for its conclusion.
The criticism has obscured the fact that many conservative jurists have agreed with a crucial part of Roe’s reasoning. Blackmun conceded that the case for a constitutional right to abortion “collapses” if a human fetus counts as a “person” entitled to constitutional protections. In that case, he wrote, the Constitution would guarantee the fetus’s right to life. He then argued that fetuses do not fall under the Constitution’s protections. On this point, Judge Robert Bork and Justice Antonin Scalia, both conservative legal giants, agreed with Blackmun and echoed part of his argument.
They agreed that a fetus is not a constitutional person while considering Blackmun’s other key conclusion — that the Constitution protects abortion — absurd. The truth, they said, is that the Constitution says nothing about abortion and implies nothing about abortion. It leaves legislatures free to prohibit abortion or to allow it. That has long been the mainstream conservative legal position.
But there have always been opponents of abortion who believe that this standard critique of Roe does not go far enough. The distinguished legal philosopher John Finnis — he directed Justice Neil Gorsuch’s doctoral studies — has drawn some attention recently for making the case that Blackmun (and by implication Bork and Scalia) got personhood wrong: Human beings in the womb are persons, he contends, and thus laws that allow elective abortions violate the 14th Amendment. As it goes about “supervising” legislatures, Finnis says, the court should act on this truth. Presumably that means that it should throw out laws that allow abortion, at least for reasons other than the protection of a mother’s life.
No justice of the Supreme Court has ever advanced this view. It is unlikely that a majority of the court will act anytime soon to prohibit abortion. But it is a view that is gaining ground. Ed Whelan, who is influential in conservative legal circles, has expressed disagreement with Finnis’s essay but allows that there is more to be said for the thesis that fetuses should be considered persons for constitutional purposes than he had once thought. Even if Finnis does not entirely prevail, that thesis could affect some aspects of the justices’ thinking. It should, as it is correct in key respects.
The most powerful version of that case relies on the clause of the 14th Amendment that declares that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The amendment does not state whether living human organisms in their mothers’ wombs fall within its definition of “persons.” It states no definition. But during the era in which the amendment was ratified, state after state tightened laws against abortion.
Blackmun made two basic arguments against fetal personhood. He claimed that the laws against abortion were passed to protect women from unsafe surgery rather than to protect unborn life. That contention can’t be squared with the historical record. As Finnis points out, an Ohio legislative committee referred to abortion as “child-murder” while justifying a stronger anti-abortion law (and did so just a few weeks after the state ratified the 14th Amendment).
Blackmun’s other argument, which Bork and Scalia also adopted, was that references to “persons” in other parts of the Constitution could not possibly refer to unborn children. As Bork put it, the Fifth Amendment’s guarantee that no “person” could be compelled to testify against himself could hardly be understood to apply to babies in the womb. The upshot was that “person” doesn’t refer to unborn children in the equal protection clause, either. But that inference is invalid. A 5-year-old derives no benefit from the ban on self-incrimination. That doesn’t mean a state can legitimately deny him all legal protections.
A stumbling block in thinking through the meaning of the equal protection clause is giving too much weight to how the ratifiers of the amendment expected it to be applied. They were concerned, above all, with the denial of civil rights to Black Americans rather than to unborn children or 5-year-olds. But the language they put into the Constitution was deliberately more general than their main purpose. They understood themselves to be adopting a principle.
That principle bars states from withholding basic protections — protections against theft or assault or homicide — from brunettes or vegetarians or any other subset of persons. The chief way that principle could be applied to unborn children is by restricting abortion, as states at the time were increasingly doing.
The argument that Finnis makes for the fetus as a person under the 14th Amendment is successful. The next question is what follows from this status. It does not follow that any court should attempt to fashion a comprehensive abortion statute. To say that a child in the womb deserves legal protection from homicide raises issues similar to the ones that legislatures have to address when crafting any homicide statute: issues of justification, excuse, self-defense and degrees of culpability. If courts were to “supervise” legislatures by settling these issues, they would be replacing them.
Roe, with its pretense that different rules for each trimester could be gleaned from the Constitution, had the character of a court-passed statute. But it was within the court’s capacity to stop laws and prosecutors from operating. A reverse-Roe would have an additional problem. If the high court told legislators and prosecutors to fight abortion and many of them balked, what would it then do?
That limitation undermines the fetal-personhood interpretation of the 14th Amendment only if we follow the modern assumption that constitutional provisions are to be vindicated first and foremost by the federal courts. But that assumption is not present in the text of the amendment and was not widespread at the time it was ratified. All the amendment itself says about its implementation is that Congress has the power to enforce it “by appropriate legislation,” with no textual hint that it was up to the courts to determine what was appropriate.
John Bingham, the 19th-century Ohio Republican congressman sometimes called “the James Madison of the 14th Amendment,” said the amendment was needed because previously there had been no power to protect all Americans’ rights “by congressional enactment.” The amendment would “supply” that “want.” It would give Congress that power.
If we think of the amendment as giving Congress the authority to protect citizens’ rights when states refuse, many of the apparent problems created by viewing fetuses as “persons” dissolve. Congress has the capacity to extend the protection of the laws to the unborn, or to force states to do it directly, if it can muster the votes. And because establishing the contours of that protection requires many judgments that are legislative in character, it would be more suitable for Congress than for the Supreme Court to make them.
If conservatives broadly come to accept the fetal-personhood thesis, it ought to have at least two practical implications:
When the Supreme Court next reconsiders its abortion jurisprudence, conservative justices should refute both halves of Blackmun’s argument, not just his case that abortion receives constitutional protection, but also his case that unborn children do not. Congress is within its rights to legislate against abortion, something that federalist-minded conservatives have sometimes questioned.What the thesis cannot do is act as a magic wand that overcomes our country’s deep political disagreements over abortion. For abortion to be banned, state and federal legislators will have to want it to be banned, and for them to want it, voters will have to want it.
As a great expositor of the Constitution said, “With public sentiment, nothing can fail; without it nothing can succeed.” A proper understanding of the 14th Amendment may aid opponents of abortion in the task of persuasion, but it cannot substitute for its accomplishment.©2021 Bloomberg L.P. Distributed by Tribune Content Agency, LLC