Almost 50 years later it had been decided, Roe v. Wade (1973) and also the supposed constitutional right to abortion it established stay remarkably contentious. During my adult life, this controversy has revolved around the soundness (obviously unsoundness) of Roe as an issue of constitutional interpretation; the objective 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; and, to a lesser extent, the efficacy of enacting a Human Life Amendment which would not just overturn Roe but explicitly ban abortions in most cases.
Liberals defend Roe v. Wade as an essential and legitimate shield of a woman’s”right to choose,” and criticize any state restrictions on abortion as harmful to girls. The doctrinal basis for a constitutional right to an abortion has always beenand remains, sterile. 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 as the mystery passage:
These issues, 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 universe, and of the mystery of human existence.
As an issue of constitutional law, originalists such as Robert Bork, Lino Graglia, along with Antonin Scalia claimed (correctly, in my view) that, since the Constitution is silent about the dilemma of abortion, and the states should be free to regulate abortion–or maybe not as they see fit.
However, what if everybody was wrong about the assumption of this debate?
What if the Reconstruction Era Fourteenth Amendment, instead of protecting a woman’s right to an abortion, protected the unborn child’s right to existence? What should the 39th Congress meant to include the unborn as”people” under the Due Process Clause? So argues Professor John Finnis of Notre Dame’s law school in a provocative article in the April 2021 matter of First Things. Finnis admits the text of the Fourteenth Amendment, drafted in 1866 and ratified in 1868, is silent about the topic of abortion, since is the drafting history and congressional debates about the step. He nevertheless contends that the aim to protect the unborn is evident in the dependence on proponents of the Civil Rights Act of 1866 (the terms of which the Fourteenth Amendment was made to conserve ) about William Blackstone’s Commentaries on the Laws of England (1765).
Blackstone delegated the start of life (and thus legal protection) into the unborn upon hastening. At least”by the dawn of the nineteenth century,” Finnis claims, abortion was illegal under English law from 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 (since 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. In other words, states are constitutionally forbidden to allow abortion.
Finnis closely investigates the reasoning of Roe and delves into the common law background of the idea of”quickening” in America throughout the 19th century. But wait a minute. The guide is all about constitutional law, not moral philosophy.
Even though Finnis is correct regarding the derivation of the Fourteenth Amendment and the meaning and importance of Blackstone’s Commentaries–even though, contra Roe, unborn children are”persons” entitled to due process–does this imply, since the name of Finnis’ post suggeststhat”Abortion is Unconstitutional”? Not automatically. Where is the state activity?
Obliterating the distinction between state and private activity would dangerously empower the national courts and encourage enormous mischief.Take off Roe v. Wade, restoring the legal arena as it existed prior to 1973: Many states outlawed abortions, some states allowed themand many others were directly in between, based on the phase of pregnancy, reasons for the abortion, and so forth. In no nations –unlike under China’s”one-child” coverage –were abortions driven. Prior to Roe, the state didn’t require girls to have abortions–it was and is the decision of the pregnant woman. Absent direct involvement of the country in the allegedly unconstitutional deprivation, there’s no violation of the Fourteenth Amendment.
Thefts and robberies happen every day, and nobody insisted the deprivation of the owners’ property at the hands of a thief violates the Due Process Clause–since there was no state action. True, there are normally legislation against falling, but in some jurisdictions threshold levels of theft are all needed to warrant arrest or perhaps a citation. Are shop owners in such jurisdictions unconstitutionally deprived of their property without due process because a shoplifter stays below the threshold amount? Some kinds of homicide are allowed under state law, for example self explanatory. In some states, the defense is quite broad, for instance, so-called”castle doctrine” (permitting the use of deadly force against an intruder in the house ) and”stand your ground” legislation (permitting the use of lethal force outside the home with no obligation to escape ). Do such legislation constitute the nation’s deprivation of the decedent’s life without due process, although the actor was a private citizen? Certainly not, and comparable examples can continue ad infinitum.
The nation’s passive role in enabling things to take place between private actors, without intervention, does not constitute state action, and cannot reasonably be conjured into 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 like considerable freedom (consistent with the Fourteenth Amendment) to define conditions under which use of lethal force and acts that create foreseeable risks to the lives and wellbeing of others might be carried out without criminal liability.” Legislative classifications are usually reviewed under the deferential rational basis test, and judges could be understandably reluctant to micromanage the myriad distinctions, variants, and omissions in states’ rules. Legislation”discriminate” among post-natal human beings in various respects, and there’s absolutely no reason to feel that judicial scrutiny will –or shouldbe greater to prenatal persons.
The country is not required to criminalize all behavior a government celebrity would be forbidden to do on behalf of their nation. Obliterating the distinction between state and private activity would dangerously enable the national courts and encourage enormous mischief.
Finnis indirectly admits the shortage of state activity in the Center of the post:
The jurisdiction of human law is not to secure purity of morals or decent character. It’s to do and preserve justice among persons in their interactions and dealings with each other–a justice that’s a topic of external acts which are reasonably honest, rather than of completely vertical (let alone heroic or saintly) motivations and reasonings.Judgments about what it’s reasonably reasonable to allow do not have the permanence and precision that you can hope for in connection to the comparatively few moral standards that exclude willful destruction of fundamental human goods. This relative imprecision is all the greater to be anticipated while the inquiry is what conduct, and that which end-results–in a uniquely intimate competition of interests–must be illegal, or could fairly be allowed, by state legislation. But whether in determining what is to become legally permissible or in deciding upon penalties to the illegal, doing what is reasonably fair depends on honestly recognizing the true reality of the subject about whose interests are at stake.
This may be thought of as a topic of moral philosophy (a question I admit I am not built to judge), however it falls short as an issue of constitutional argument. Only government actors could violate the Fourteenth Amendment.
To be clear: I am not defending Roe v. Wade. It’s an abominable decision. I concur with Finnis’ conclusion that”forbidding the killing of the unborn is an issue of justice to the most vulnerable people .” However, upon the overruling of Roe, it will be incumbent on the legislatures of each of the states to accomplish this conclusion and enact laws to this effect. The Fourteenth Amendment, even though viewed as Finnis urges, does not encourage a nationwide ban on abortion by judicial decree. The many iterations of these (thus far ineffective ) Human Life Amendment do not rely merely on conferring personhood about the unborn; they either explicitly prohibit abortion or authorize states to do so.
The Court was wrong to”discover” the right to abortion in the Fourteenth Amendment. It would be an equivalent act of judicial activism to accomplish the contrary end. Abortion is abhorrent, however (contra Finnis) it is not unconstitutional.