Is Abortion Unconstitutional?

Nearly 50 years later it had been decided, Roe v. Wade (1973) and also the purported constitutional right to abortion it established remain remarkably controversial. Within my adult life, this controversy has revolved round the soundness (or unsoundness) of Roe as a matter of constitutional interpretation; the aim of appointing justices who’d overturn Roe as a precedent, returning the dilemma of abortion to the states; discerning the constraints of the states’ right to regulate abortion under Roe and its progeny; also, to a lesser degree, the effectiveness of Allergic a Human Life Amendment that would not only overturn Roe but explicitly ban abortions generally.

Liberals defend Roe v. Wade as an essential and legitimate safeguard of a woman’s”right to choose,” and criticize any state restrictions on abortion as detrimental to women. The doctrinal foundation for a constitutional right to an abortion has ever beenand remains, sterile. 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 puzzle passage:

In the heart of freedom is the right to define one’s own idea of existence, of meaning, of this universe, and also the mystery of human existence.

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

But what if everybody was wrong about the assumption of this debate?

Imagine if the Reconstruction Era Fourteenth Amendment, rather than protecting a girl’s right to an abortion, then secure the unborn child’s right to existence? Imagine if the 39th Congress intended to include the unborn as”people” under the Due Process Clause? So asserts Professor John Finnis of Notre Dame’s law faculty at 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.

Blackstone assigned the start of life (and consequently legal security ) to the unborn upon hastening. At least”by the dawn of the nineteenth century,” Finnis claims, abortion was illegal under English law in the period of conception. Therefore, if the Fourteenth Amendment was intended to confer about the newly-freed slaves (and many others ) the rights of Englishmen (since Finnis contends, quoting James F. Wilson, the host of the Civil Rights Act of 1866), the expression”any individual” in the Due Process Clause includes the unborn. In other words, states are constitutionally prohibited to permit abortion.

Finnis closely explores the rationale of Roe and delves into the frequent law background of the concept of”quickening” in America throughout the 19th century. Finnis is a world class philosopher, and also his own philosophical arguments are compelling. But wait a minute. The report is all about constitutional law, not ethical philosophy.

Even if Finnis is right about the derivation of the Fourteenth Amendment and the meaning and importance of Blackstone’s Commentaries–even if, contra Roe, unborn children are”persons” entitled to due process–does that mean, since the name of Finnis’ post indicates that”Abortion is Unconstitutional”? Not automatically. Where is the state action?

Obliterating the distinction between state and private action would reluctantly enable the national courts and invite tremendous mischief.Take off Roe v. Wade, restoring the legal landscape as it was before 1973: Some states outlawed abortions, some countries allowed themand others were in between, based on the stage of pregnancy, motives for the abortion, and so forth. In no nations –unlike under China’s”one-child” coverage –were abortions compelled. Prior to Roe, the condition did not need women to have abortions–it was is the decision of the pregnant girl. Absent direct involvement of the state in the supposedly unconstitutional deprivation, there’s absolutely not any breach of the Fourteenth Amendment.

Thefts and robberies happen daily, and nobody testified the deprivation of the owners’ property in the hands of a thief simplifies the Due Process Clause–because there was no state action. True, there are generally legislation against stealing, but in a few jurisdictions threshold levels of theft have been needed to justify detain or just a citation. Are shop owners in these authorities unconstitutionally deprived of their land without due process as a shoplifter remains under the threshold amount? Some kinds of homicide are allowed under state law, such as self-defense. In some states, the defense will be quite broad, for instance, so-called”castle doctrine” (permitting the use of deadly force against an intruder in one’s house ) and”stand your ground” legislation (permitting the use of fatal force out one’s home without a obligation to retreat). Do such legislation constitute the state’s deprivation of the decedent’s life with no due process, despite the fact that the actor was a private citizen? Certainly not, and comparable cases could continue ad infinitum.

The state’s passive role in permitting things to take place between private actors, with no intervention, doesn’t constitute state action, and can’t reasonably be conjured into the cornerstone of a constitutional claim based on breach of the Due Process Clause. Nor is that the Equal Protection Clause a plausible basis for banning abortion under the Fourteenth Amendment. As Gerard Bradley has noted,”States like considerable liberty (consistent with the Fourteenth Amendment) to define conditions under which use of fatal force and functions that create foreseeable risks to the lifestyles and wellbeing of others may be done without liability.” Legislative classifications are generally reviewed under the deferential rational basis test, and courts are understandably reluctant to micromanage the plethora distinctions, variations, and omissions in countries’ penal codes. Laws”discriminate” among post-natal human beings in numerous respects, and there is not any reason to believe that judicial scrutiny would–or should–be higher to prenatal persons.

The state isn’t needed to criminalize all behavior that a government actor would be prohibited to do on behalf of their nation. Obliterating the distinction between state and private action would dangerously enable the national courts and invite tremendous mischief.

Finnis indirectly admits the lack of state action in the middle of his post:

The jurisdiction of individual law isn’t to secure purity of morals or decent personality. It’s to do and maintain justice among persons in their interactions and dealings with each other–a justice that is a matter of external functions that are reasonably fair, rather than of completely upright (let alone heroic or saintly) motives and reasonings.Judgments about what it is reasonably reasonable to permit do not have the permanence and accuracy that one can hope for in connection to the comparatively few moral standards that exclude intentional destruction of fundamental human products. This relative imprecision is all the more to be expected when the inquiry is what behavior, and also what end-results–at a uniquely intimate competition of interests–should be illegal, or could fairly be allowed, by state legislation. But if in determining what is to become lawfully permissible or at settling upon penalties to the illegal, doing what’s reasonably fair is dependent upon candidly acknowledging the true facts of the issue concerning whose interests are at stake. (Emphasis in original.)

This may be thought of as a matter of moral philosophy (a matter I acknowledge I’m not willing to judge), however it falls short as a matter of constitutional debate. Just government celebrities can violate the Fourteenth Amendment. 

To be clear: I’m not defending Roe v. Wade. It’s an abominable decision. I agree with Finnis’ conclusion that”prohibiting the killing of the unborn is a matter of justice to the most vulnerable people ” But upon the overruling of Roe, it will be incumbent upon the legislatures of every one of the countries to accomplish this conclusion and enact laws to this result. The Fourteenth Amendment, even if viewed as Finnis urges, doesn’t support that a nationwide ban on abortion by judicial decree. Even the many iterations of the (to date ineffective ) Human Life Amendment don’t 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” a right to abortion in the Fourteenth Amendment. It would be an equal act of judicial activism to make it to the opposite end. Abortion is abhorrent, however (contra Finnis) that it isn’t unconstitutional.