Is Abortion Unconstitutional?

Almost 50 years later it was decided, Roe v. Wade (1973) and the supposed constitutional right to abortion it created remain remarkably controversial. During my adult lifetime, this controversy has revolved around the soundness (or unsoundness) of Roe as an issue of constitutional interpretation; the objective of appointing justices who’d overturn Roe as a precedent, returning the issue of abortion to the nations; discerning the limits of the nations’ right to regulate abortion under Roe and its progeny; also, to a lesser extent, the efficiency of Allergic a Human Life Amendment which would not only overturn Roe but expressly ban abortions normally.
The doctrinal foundation for a constitutional right to an abortion has ever beenand remains, flimsy.
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.
Nevertheless, abortion is now a feminist sacrament, and the Left prizes Roe as a civil rights precedent on par with Brown v. Board of Education (1954).
As an issue of constitutional legislation, originalists like Robert Bork, Lino Graglia, and Antonin Scalia claimed (correctly, in my opinion ) that, since the Constitution is silent about the issue of abortion, the nations must be free to regulate abortion–or not–as they see fit.
However, what if everyone was incorrect about the assumption 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 existence? What if the 39th Congress meant to incorporate the unborn as”persons” under the Due Process Clause? So argues Professor John Finnis of Notre Dame’s law school at a provocative article in the April 2021 matter of First Things. Finnis acknowledges that the text of the Fourteenth Amendment, hailed in 1866 and ratified in 1868, is quiet about the topic of abortion, since is the drafting history and congressional debates about the measure.
Blackstone assigned the start of life (and thus legal protection) into 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. Consequently, in the event the Fourteenth Amendment was meant to confer about the newly-freed slaves (and many others ) the rights of Englishmen (since Finnis claims, quoting James F. Wilson, the sponsor of the Civil Rights Act of 1866), the term”any individual” in the Due Process Clause includes the unborn. In other words, states would be constitutionally forbidden to permit abortion.
Finnis closely investigates the reasoning of Roe and invisibly to the frequent law history of the idea of”quickening” at America during the 19th century. But wait a minute. The report is about constitutional law, not moral doctrine.
Even if Finnis is right in regards to the derivation of the Fourteenth Amendment and the meaning and significance of Blackstone’s Commentaries–even if, contra Roe, furry children are”persons” entitled to due process–does this imply, since the title of Finnis’ article indicates that”Abortion is Unconstitutional”? Not necessarily. Where is the state action?
Obliterating the differentiation between private and state actions would reluctantly enable the federal courts and invite tremendous mischief.Take off Roe v. Wade, restoring the legal landscape as it existed prior to 1973: Many states outlawed abortions, some countries allowed themand many others were in between, based on the stage of pregnancy, motives for the abortion, etc. In no states–unlike beneath China’s”one-child” policy–were abortions compelled. Prior to Roe, the nation did not require girls to have abortions–it was is the conclusion of the pregnant woman. Absent direct participation of the state at the allegedly unconstitutional deprivation, there’s absolutely no breach of the Fourteenth Amendment.
Thefts and robberies happen every day, and nobody testified the deprivation of the owners’ property at the hands of a thief violates the Due Process Clause–since there was no state activity. True, there are generally laws against stealing, but in some jurisdictions threshold levels of theft are expected to warrant arrest or perhaps a citation. Are shop owners in these jurisdictions unconstitutionally deprived of their land without due process as a shoplifter stays beneath the threshold level? Some types of homicide are allowed under state legislation, such as self explanatory. In some nations, the defense is rather broad, for instance, so-called”castle doctrine” (allowing the use of deadly force against an intruder at one’s house ) and”stand your ground” laws (allowing the use of deadly force outside one’s house without a duty to escape ). Do such laws constitute the nation’s deprivation of the decedent’s lifetime with no due process, even though the actor was a private citizen? Of course not, and comparable examples can continue ad infinitum.
The nation’s passive part in enabling things to happen between private actors, with no intervention, does not constitute state action, and cannot reasonably be conjured to the foundation of a constitutional claim based on breach of the Due Process Clause. Since Gerard Bradley has noted,”States like considerable liberty (consistent with the Fourteenth Amendment) to specify conditions under which use of deadly force and functions which create foreseeable threats to the lives and wellbeing of others might be done without criminal liability.” Legislative classifications are usually reviewed under the deferential rational basis test, and courts would be understandably reluctant to micromanage the plethora distinctions, variants, and omissions in countries’ rules. Laws”discriminate” among post-natal human beings in many respects, and there’s absolutely no reason to think that judicial scrutiny will –or should–be greater for prenatal persons.
The state is not necessary to criminalize all behavior that a government celebrity would be forbidden to perform behalf of this state. Obliterating the differentiation between private and state activity 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 men in their dealings and interactions with each other–a justice that is a matter of external functions which are reasonably honest, instead of of completely vertical (let alone heroic or saintly) motives and reasonings.Judgments about what it’s reasonably reasonable to allow do not have the permanence and accuracy that one may expect in connection to the relatively few moral norms that exclude intentional destruction of basic human goods. This relative imprecision is all the more to be anticipated when the inquiry is exactly that which conduct, and also that which end-results–at a uniquely romantic competition of interests–must be prohibited, or could fairly be allowed, by state regulation. But if in deciding what is to be legally permissible or at settling upon penalties for the prohibited, doing what’s reasonably fair is dependent upon honestly recognizing the true facts of the problem about whose interests are at stake. (Emphasis in original.)
This may be unassailable as a matter of moral doctrine (a matter I acknowledge I am not willing to judge), however, it falls short as an issue of constitutional debate. Only government celebrities may violate the Fourteenth Amendment. 
To be clear: I am not advocating Roe v. Wade. It is an abominable decision. I agree with Finnis’ conclusion that”prohibiting the killing of the unborn child is an issue of simple justice to the most vulnerable among us” But upon the overruling of Roe, it will be incumbent upon the legislatures of each of those countries to reach that conclusion and enact laws to this result. The Fourteenth Amendment, even if construed as Finnis urges, does not encourage that a nationwide ban on abortion by judicial decree. The numerous iterations of this (to date unsuccessful) Human Life Amendment do not rely only on conferring personhood about the furry; they explicitly ban abortion or authorize countries to do so.
The Court was wrong to”find” the right to abortion in the Fourteenth Amendment. It might be an equivalent act of judicial activism to accomplish the opposite conclusion. Abortion is abhorrent, but (contra Finnis) it is not unconstitutional.