Is Abortion Unconstitutional?

Almost 50 years after it had been determined, Roe v. Wade (1973) and also the purported constitutional right to abortion it proved stay unusually contentious. Throughout 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 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 extent, the efficacy of Allergic a Human Life Amendment that would not simply overturn Roe but expressly ban abortions ordinarily.

Liberals defend Roe v. Wade as a necessary and valid safeguard of a woman’s”right to choose,” and criticize some condition restrictions on abortion rather harmful to women. The doctrinal foundation for a constitutional right to an abortion has always been, and remains, tasteless. When a bitterly-divided Supreme Court cobbled together a justification for upholding Roe in Planned Parenthood v. Casey (1992), the majority had to resort to that which critics derisively refer to 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 idea of existence, of meaning, of this world, and also course the mystery of human life.

Yet, abortion is now a sacrament, along with the left wing awards Roe as a civil rights precedent on par with Brown v. Board of Education (1954).

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

However, what if everybody was incorrect about the assumption of this debate?

What if the Reconstruction Era Fourteenth Amendment, instead of protecting a woman’s right to an abortion, then protected the unborn child’s right to life? What should 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 issue 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, as is the drafting history and congressional debates about the measure.

Blackstone assigned the start of life (and thus legal protection) into the unborn upon accelerating. At least”by the dawn of the nineteenth century,” Finnis argues, abortion was prohibited under English law in the period of conception. Therefore, if the Fourteenth Amendment was meant to confer about the newly-freed slaves (along with others) the rights of Englishmen (as Finnis contends, quoting James F. Wilson, the sponsor of the Civil Rights Act of 1866), the expression”any individual” in the Due Process Clause includes the unborn. To put it differently, states would be constitutionally forbidden to allow abortion.

Finnis closely explores the rationale of Roe and delves into the frequent law background of the idea of”quickening” at America throughout the 19th century. But wait a minute. The guide is about constitutional law, not moral philosophy.

Even if Finnis is correct about the derivation of the Fourteenth Amendment and the meaning and importance of Blackstone’s Commentaries–even if, contra Roe, furry children are”persons” entitled to due process–does that imply, as the title of Finnis’ article indicates , that”Abortion is Unconstitutional”? Not necessarily. Section One 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?

Obliterating the distinction between state and private action would dangerously empower the national courts and encourage tremendous mischief.Take off Roe v. Wade, restoring the legal landscape as it existed before 1973: Some states outlawed abortions, some states allowed them, and others were in between, based on the stage of pregnancy, reasons for the abortion, etc. In no states–unlike beneath China’s”one-child” coverage –were abortions forced. Prior to Roe, the state didn’t need women to have abortions–it was and is the conclusion of the pregnant girl. Absent direct participation of the country in the supposedly unconstitutional deprivation, there is no breach of the Fourteenth Amendment.

Thefts and robberies occur daily, and nobody insisted the deprivation of the owners’ property at the hands of a burglar simplifies the Due Process Clause–because there was no state action. True, there are normally legislation against stealing, but in some jurisdictions threshold amounts of theft have been expected to justify detain or even a citation. Are store owners in such jurisdictions unconstitutionally deprived of their land without due process because a shoplifter stays under the threshold amount? Some types of homicide are allowed under state legislation, such as self-defense. In certain nations, the defense is quite broad, including the so-called”castle doctrine” (permitting the use of lethal force against an intruder at one’s house ) and”stand your ground” legislation (permitting the use of deadly force outside one’s home with no duty to retreat). Do such legislation constitute the state’s deprivation of the decedent’s lifetime without due process, despite the fact that the actor was a private citizen? Certainly not, and comparable examples could continue ad infinitum.

The state’s passive role in enabling things to happen between private actors, without intervention, doesn’t constitute state action, and cannot reasonably be conjured to the cornerstone of a preexisting claim based on breach of the Due Process Clause. Nor is the Equal Protection Clause a logical basis for banning abortion under the Fourteenth Amendment. Since Gerard Bradley has noticed,”States like appreciable freedom (consistent with the Fourteenth Amendment) to define 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 reluctant to micromanage the myriad distinctions, variants, and omissions in states’ penal codes. Legislation”discriminate” among post-natal human beings in various respects, and there’s absolutely no reason to think that judicial scrutiny will –or should–be higher to prenatal persons.

The country is not required to criminalize all behaviour that a government actor would be forbidden to perform behalf of this country. Obliterating the distinction between state and private action would dangerously empower the national courts and encourage tremendous mischief.

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

The authority of individual law is not to secure purity of morals or great personality. It is to perform and preserve justice among men in their dealings and interactions with each other–a justice that is a matter of external acts that are reasonably honest, rather than of completely vertical (let alone heroic or saintly) motivations and reasonings.Judgments about what it’s reasonably reasonable to permit do not have the permanence and precision that you may hope for in relation to the relatively few moral norms that exclude intentional destruction of basic human products. This relative imprecision is all the more to be expected while the inquiry is what behavior, and also that which end-results–at a uniquely romantic competition of interests–should be prohibited, or can fairly be allowed, by state regulation. But whether in determining what is to be lawfully permissible or at deciding upon penalties to the prohibited, doing what’s reasonably fair depends upon candidly acknowledging the true reality of the subject 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 equipped to judge), however it falls short as a matter of constitutional debate. Just government celebrities may violate the Fourteenth Amendment. 

To be clear: I’m not advocating Roe v. Wade. It is an abominable decision. I concur with Finnis’ decision that”forbidding the killing of the unborn child is a matter of justice to the most vulnerable among us.” However, upon the overruling of Roe, it’ll be incumbent upon the legislatures of every one of those states to accomplish this decision and enact legislation to that effect. The Fourteenth Amendment, even if construed as Finnis urges, doesn’t encourage a national ban on abortion by judicial decree. The many iterations of this (to date ineffective ) Human Life Amendment do not rely merely on conferring personhood about the furry; they either explicitly prohibit abortion or authorize states to do so.

The Constitution is silent on abortion. The Court was wrong to”find” a right to abortion at the Fourteenth Amendment. It could be an equivalent act of judicial activism to reach the contrary end. Abortion is abhorrent, but (contra Finnis) it is not unconstitutional.