Almost 50 years later it was determined, Roe v. Wade (1973) and also the purported constitutional right to abortion it established remain remarkably contentious. Throughout my adult life, this controversy has revolved round the soundness (or unsoundness) of Roe as an issue of constitutional interpretation; the goal of appointing justices who’d overturn Roe as a precedent, returning the dilemma of abortion to the nations; discerning the constraints of the nations’ right to regulate abortion under Roe and its progeny; and, to a lesser degree, the efficiency of enacting a Human Life Amendment that would not simply overturn Roe but expressly ban abortions in most cases.
Liberals defend Roe v. Wade as a necessary and valid safeguard of a woman’s”right to choose,” and criticize any other state restrictions on abortion as harmful to women. The doctrinal basis for a constitutional right to an abortion has always been, and remains, sterile.
As an issue of constitutional law, originalists like Robert Bork, Lino Graglia, along with Antonin Scalia argued (correctly, in my view) that, because the Constitution is silent about the dilemma of abortion, the nations must be free to govern abortion–or not–as they see fit.
However, what if everyone was wrong about the premise of this debate?
What when the Reconstruction Era Fourteenth Amendment, instead of protecting a girl’s right to an abortion, secure the unborn child’s right to life? What if the 39th Congress meant to incorporate the unborn as”persons” under the Due Process Clause? So asserts Professor John Finnis of Notre Dame’s law school in a provocative article in the April 2021 issue of First Things. Finnis admits that the text from the Fourteenth Amendment, hailed in 1866 and ratified in 1868, is silent about the topic of abortion, since is the drafting background and congressional debates about the step. He nevertheless contends that the intent to defend 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) about William Blackstone’s Commentaries on the Laws of England (1765).
Blackstone delegated the start of life (and so legal security ) into the unborn upon quickening. At least”from the dawn of the nineteenth century,” Finnis claims, abortion was prohibited under English law in the period of conception. Consequently, in the event the Fourteenth Amendment was meant to confer about the newly-freed slaves (along with others) the rights of Englishmen (since Finnis contends, quoting James F. Wilson, the sponsor of the Civil Rights Act of 1866), the expression”any man” in the Due Process Clause includes the unborn. In other words, states are constitutionally forbidden to allow abortion.
Finnis closely investigates the rationale of Roe and delves into the frequent law background of the concept of”quickening” in America throughout the 19th century. But wait a moment. The report is all about constitutional law, not moral doctrine.
Even if Finnis is correct in regards to the derivation of the Fourteenth Amendment and also the meaning and importance of Blackstone’s Commentaries–even if, contra Roe, unborn children are”persons” entitled to due process–does this imply, since the title of Finnis’ post suggests, that”Abortion is Unconstitutional”? Not automatically. Where’s the state action?
Obliterating the differentiation between private and state action would dangerously empower the federal courts and encourage tremendous mischief.Take off Roe v. Wade, restoring the legal landscape as it existed prior to 1973: Some states outlawed abortions, some countries allowed them, and others were in between, depending on the stage of pregnancy, motives for the abortion, etc. In no nations –unlike beneath China’s”one-child” policy–were abortions driven. Before Roe, the state did not need women to have abortions–it was and is the decision of the pregnant girl. Absent direct involvement of the country in the allegedly unconstitutional deprivation, there is no violation of the Fourteenth Amendment.
Thefts and robberies happen every day, and no one testified the deprivation of their owners’ property in the hands of a thief violates the Due Process Clause–because there was no state activity. True, there are normally laws against stealing, but in some jurisdictions threshold amounts of theft have been needed to justify detain or just a citation. Are shop owners in such authorities unconstitutionally deprived of their property without due process as a shoplifter stays beneath the threshold amount? Some types of homicide are permitted under state law, such as self-defense. In some nations, the shield is quite broad, for instance, so-called”castle doctrine” (allowing the use of lethal force against an intruder in one’s home) and also”stand your ground” laws (allowing the use of fatal force outside one’s house with no obligation to retreat). Do such laws constitute the state’s deprivation of their decedent’s lifetime with no due process, even though the actor was a private citizen? Certainly not, and comparable cases can continue ad infinitum.
The state’s passive role in enabling things to happen between private actors, with no intervention, does not constitute state action, and cannot reasonably be conjured to the basis of a constitutional claim based on violation of the Due Process Clause. Nor is that the Equal Protection Clause a plausible basis for banning abortion under the Fourteenth Amendment. Since Gerard Bradley has noticed,”States enjoy appreciable freedom (consistent with the Fourteenth Amendment) to specify conditions under which use of fatal force and functions which create foreseeable risks to the lifestyles and health of others may be done without criminal liability.” Legislative classifications are usually analyzed under the deferential rational basis test, and courts are reluctant to micromanage the myriad distinctions, variations, and omissions in countries’ penal codes. Legislation”discriminate” among post-natal human beings in various respects, and there is no reason to feel that judicial scrutiny would–or should–be greater to prenatal persons.
The country is not necessary to criminalize all behaviour that a government celebrity would be forbidden to perform on behalf of this state. Obliterating the differentiation between private and state action would dangerously enable the federal courts and encourage tremendous mischief.
Finnis indirectly admits the absence of state action in the middle of his post:
The jurisdiction of human law is not to secure purity of morals or great personality. It is to perform and maintain justice among men in their interactions and dealings with each other–a justice that is a matter of external functions that are reasonably fair, instead of of fully vertical (let alone heroic or saintly) motives and reasonings.Judgments regarding what it is reasonably fair to allow do not have the permanence and precision that you can hope for in connection to the comparatively few moral norms that exclude deliberate destruction of fundamental human products. This relative imprecision is all the greater to be anticipated when the inquiry is exactly what behavior, and what end-results–in a uniquely intimate competition of interests–must be prohibited, or can fairly be permitted, by state law. But whether in deciding exactly what is to be legally permissible or in settling upon penalties to the prohibited, doing what is reasonably fair is dependent on candidly acknowledging the true facts of the subject concerning whose interests are at stake. (Emphasis in original.)
This might be thought of as a matter of moral doctrine (a question I acknowledge I’m not willing to judge), however, it falls short as an issue of constitutional argument. Only government celebrities could violate the Fourteenth Amendment.
To be clear: I’m not defending Roe v. Wade. It is an abominable decision. I concur with Finnis’ decision that”forbidding the killing of the unborn child is an issue of simple justice to the most vulnerable people .” However, upon the overruling of Roe, it’ll be incumbent on the legislatures of every one of those countries to reach that decision and also enact laws to the effect. The Fourteenth Amendment, even if construed as Finnis recommends, does not encourage that a nationwide ban on abortion by judicial decree. The numerous iterations of this (to date unsuccessful) Individual Life Amendment do not rely only on conferring personhood about the unborn; they explicitly ban abortion or authorize countries to do so.
The Constitution is silent on abortion. The Court was wrong to”find” the right to abortion in the Fourteenth Amendment. It could be an equal act of judicial activism to achieve the opposite conclusion. Abortion is abhorrent, but (contra Finnis) that it is not unconstitutional.