Why Should the Anti-Abortion Movement Settle for Just Ending Roe?

Two eminent philosophers, disguised as bad historians, show SCOTUS a path to a 50-state abortion ban.

Anyone who rides horses recognizes the moment when, at the end of a ride, a tired horse spots the barn. A skilled rider does not let the animal break into a trot. But the horse’s impulse is understandable. C’mon, cowboy, the mount is pleading, let’s get this over with!

Barn fever is sweeping the anti-abortion movement in 2021. The Supreme Court is now their conquered province; red-state legislators have been enthusiastic about constructing laws that can cash in on former President Donald Trump’s promise that his justices will “automatically” overturn Roe v. Wade. And as of last week, his justices show every sign of doing the job they were hired to do.

The decision to allow Texas’s SB 8 to take effect, a five-vote majority said, “is not based on any conclusion about the constitutionality of Texas’s law.” Not even Senator Susan Collins, I suspect, believes this. The decision sends a signal to pro-choice advocates (“You are going to lose big”) and to anti-abortion legislators (“Bring us more statutes”). The majority insists that the Court’s inaction is based on the procedural posture of the case. Those procedural problems are, in fact, the entire point of Texas’s law: By making enforcement of the “heartbeat bill” dependent on individual vigilantes rather than government officials, it aims to make it impossible for a court to block the law. The procedural problem, however, is a dog that won’t hunt. As the Texas law professor Stephen Vladeck pointed out on Twitter, the Court only three months ago blew past all kinds of procedural hurdles to defend “religious liberty” against pandemic regulations—and to give the religious claimants a sweeping win by changing, without full briefing or argument, the law of free exercise.

Eventually, the Texas law (and the copycats that other legislatures will now pass) will come before the Court. But the conservative majority may feel confident that the law of abortion will have changed by then.

That brings us to Dobbs v. Jackson Women’s Health Organization, which this fall will offer the new majority a full-dress case they can use to overrule Roe and Planned Parenthood v. Casey—or narrow them beyond recognition. Mississippi’s legislature in 2018 passed a statute banning all abortions (except in cases of “fetal abnormality” or “medical emergency”) after 15 weeks’ gestation. Casey’s rule is that states may not prevent a woman from choosing a legal abortion (for any reason) before “fetal viability,” the point—now set by medical science at about 24 weeks—at which a fetus might be able to survive outside the mother’s womb. A federal district court, citing Casey’s hard-and-fast rule, blocked the law. The Fifth Circuit affirmed, with theatrical sighs of “Well, if you want to get all technical, the Supreme Court really does have jurisdiction over Mississippi.”

But a victory in Dobbs may seem like thin gruel by then. Here is the heart of Mississippi’s argument in Dobbs, from a brief the state filed on July 22: “Under our Constitution, . . . a State may prohibit elective abortion if a rational basis supports doing so.” The case, in other words, is about federalism. But (let’s be honest) there is not a soul on earth who thinks of legal abortion as a federalism issue, like school-zone speed limits, federal pension rights, or soda bottle deposits. Abortion’s opponents don’t want to stop it only in red states. Abortion-rights proponents don’t want women to have the right to choose only in blue states. Both sides are fighting over choice itself.

This backdrop, I suggest, may well be the context of an amicus brief filed with the Supreme Court on July 29 by two eminent conservative intellectuals: John Finnis, a philosopher who taught for two decades at Oxford and now holds an endowed chair at Notre Dame, and Robert George, who teaches legal philosophy at Princeton and runs its James Madison Program in American Ideals and Institutions. Both men are widely respected across the spectrum of constitutional philosophy and have influenced decades’ worth of young scholars. I read essays by Finnis while still in law school, and others by George after I became a professor, and admired everything about them except their religious premises, which I reject. Their ideas are extreme, but no one in law would call them fringe figures or question their sincerity.

Now, as an apparent anti-abortion victory looms, the two suggest that the movement hit the trail for fresh fields and pastures new. Its aim, they say, should be to make all abortion illegal: The prohibition of abortion, they told the Court in their brief, is “constitutionally obligatory because unborn children are persons within the original public meaning of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.” No state can permit it, they say.

The possibility that the Court will, during the October 2021 term, enact this rule is slim. But the brief is worth noting for a couple of reasons. First is the clear intent to insert into the dialogue the idea that no state can allow legal abortion. In late summer 2021, that may seem radical even to some anti-abortion activists; but, as Samuel Johnson once said, “Reason by degrees submits to absurdity as the eye is in time accommodated to darkness.” Shifting the terms of the discussion is a crucial first step toward winning the debate. Consider that, since Roe was decided in 1973, the needs and rights of pregnant women have been slowly but surely erased from the legal dialogue. The fetus is the star of most “pro-life” propaganda, and the needs of the fetus—its heartbeat, or its capacity for pain, or its constitutional status—are the center of the discussion. With women’s privacy, health, and equality removed from the equation, the only question is what rights an unborn fetus may possess. And the new answer offered by these eminent figures is: fetus, all of them; woman, none.

This brief now asks the Court for one of the most radical doctrinal shifts in American history. We can understand why the two philosophers want such a shift—they believe that any fertilized egg is a full human person, and thus any rule that allows the termination of a pregnancy after conception involves a very serious offense against their morality. To go further, they have at their disposal respectable (if, I think, grievously wrong) philosophical arguments why the law should adopt that philosophical position as a legal rule. But what is appalling about this brief is that, instead of just making those arguments as friends of the Court (“We are two eminent philosophers, and we want to point out to you that philosophically your current jurisprudence is flawed”), they present this not as their own idea—heaven forfend!—but as “the original public meaning” of the Fourteenth Amendment. By amassing a distinctly odd survey of the historical record, they solemnly assure the justices that any “legally educated” member of the public in 1868 would have understood the reference to “person” in the due process and equal protection clauses as meaning the unborn at any stage. That means that the “original public meaning” of the Fourteenth Amendment was that abortion could never be allowed.

Before grappling with this historical claim, let’s consider two almost equally unappetizing possibilities about what led the authors to make it. The first is that these two men actually believe this. But the second possibility is that, having seen that questions of “original intent,” “original understanding,” and “original public meaning” have come to dominate constitutional discourse, they have decided to clothe a respectable philosophical argument in the incongruous garb of an “originalist” contention.

Forty years of conservative bleating have transformed our constitutional dialogue from questions of rights, values, history, and practicality into an all but incomprehensible dispute over entries in ancient dictionaries—a debate over “history” from which even historians are usually excluded. As a scholarly endeavor, the “originalist” search can be bracing. I study the founding of the country, and the framing of the Fourteenth Amendment, and I think both tell us a lot about constitutional interpretation. But a scholar’s surmise about what now-dead Americans would have “understood” the Constitution to mean is simply that—academic surmise. Judges who pretend to use it as a judicial method are at best incoherent and at worst disingenuous.

Even within the sterile context of “originalism,” however, the “originalist” argument this brief proffers is in fact scandalously sloppy.

First, they argue, the Civil Rights Act of 1866 understood the term person—a term that was also used in Sir William Blackstone’s Commentaries on the Laws of England—to include unborn fetuses within the protection of the act. Senator James Wilson, a sponsor of the act, quoted a section of Blackstone when introducing the legislation, and a part of the section that he did not quote says that life is a “gift of God,” which “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” Thus, the philosophers argue, the framers of the act must have incorporated by reference all of Blackstone’s views of “personhood” into the “public meaning” of the act. And since Section 1 of the Fourteenth Amendment “aimed to codify” the Civil Rights Act, it thus also silently incorporated (it must have!) Blackstone’s view of personhood.

So, they contend, Bill A influenced Amendment B. The sponsor of Bill A quoted Thinker X. Thinker X, in material the sponsor didn’t quote, advocates Rule 1. Therefore, the original public meaning of Amendment B incorporates by reference Rule 1 because that’s written down near the quote the sponsor cited. Sounds complicated and circular? That’s because it is.

But wait! There’s more! The fact is that even if we give it the Full Blackstone, Rule 1 still doesn’t support the idea that all unborn fetuses are legal “persons” from conception on. What Blackstone actually says is that the common law regarded life as beginning when a fetus is able to stir—that is, at what used to be called “quickening,” which occurs about halfway through pregnancy. Our two philosophers direct our attention away from that inconvenient fact by suggesting that Blackstone’s discussion of “stirring” was “perhaps partly for evidentiary reasons”—that is, he must have meant that fetuses are “persons” from conception on, but the law uses “quickening” because it was at that time too hard to tell whether a woman was pregnant until that point.

Thus, because Wilson mentioned Blackstone, he must have meant that he agreed with something that Blackstone didn’t say but might have been thinking about. The chain of reasoning here is reminiscent of an old Yiddish proverb: “If Grandma had wheels, she’d be a wagon.”

The brief’s claim is made just a wee bit trickier by the fact that, as the philosophers admit, the word quick had at that time no clear unambiguous meaning. It meant, depending on context, one of three things: 1) pregnant at any stage; 2) more than six weeks’ pregnant; or 3) at “quickening” itself, that is, at stirring.

Blackstone’s usage, they say, “plainly addresses” sense number two, thus showing that “quickening” was irrelevant to him. The plainness may be obscure to you or me, but it is there because, well, the passage they cite includes footnotes referring to writings by the 13th-century jurist Henry de Bracton, and to writings by the 17th-century Lord Chief Justice Edward Coke that refer to Bracton. This demonstrates, they say, that “both Coke and Blackstone effectively taught that abortions were common-law heinous misdemeanors from the sixth week of pregnancy.”

The foregoing chain of inferences, the philosophers write, proves that the “original public legal meaning of ‘persons’ encompassed all human beings.” Furthermore, they add, “the inclusion of children in utero [as being protected by the Fourteenth Amendment] could not have been blocked except by wording (easily available, but neither proposed nor adopted) such as ‘any person wherever born.’” 

In other words, they suggest, the framers meant “born or unborn” because they didn’t explicitly say “born.” The problems with this are manifold. For one, they did say “born.” The Civil Rights Act begins by extending protection to “all persons born in the United States.” And the Fourteenth Amendment begins by stating, “All persons born or naturalized in the United States”—thus supplying, twice, the potential textual limit the two professors claim is lacking.

The most minor of problems with this line of reasoning is that it misrepresents the text of both the Civil Rights Act, which begins by extending protection to “all persons born in the United States,” and the Fourteenth Amendment, which begins, “All persons born or naturalized in the United States”—thus supplying twice the potential textual limit the philosophers claim is lacking.

The contentions in this brief are not history, and indeed they are barely human language. Knowing as I do that these two writers are capable of clear reasoning (erroneous or not), I find it tragic that they did not just say, “Never mind the legal history, we think the fetus is a full person from the moment of conception and we think that to be a moral document the Constitution must reflect that!” That’s an argument about fetal personhood that is worth the country having. Instead, however, the national dialogue has become so corrupt that, to be heard, two brilliant philosophers are pretending to be incompetent historians.

Worse yet, the outlandish brief offers cover for any justice who wants to claim that their own views are irrelevant because abortion is forbidden under the “original understanding” of the text. The judicial jihad against abortion may not end, or even pause, with the overruling of Roe and the affirmative cases that followed. The next aim of some parts of the movement will be a decision that abortion can never be permitted, regardless of federal or state statutes. I look at the Trump Court, I count to five, and my heart within me is desolate.

The second painful aspect of the brief is this: A woman as a subject of law, a person with a life and agency of her own, does not appear at all (other than as the host of an actual “person”) until the final paragraph. Adopting the “originalist” position, of course, will mean that abortion is a crime. That would make pregnant women seeking or obtaining abortions into criminals. But the philosophers tell us not to worry:

Equal protection allows States to treat different cases differently, for legitimate ends. States may consider degrees of culpability as mitigating factors or altogether immunize from prosecution certain participants in wrongful killings. Here such policy choices serve legitimate purposes by fairly balancing the child’s humanity and her unique physical dependence and impact on her mother. And the mother’s constitutional rights could require States to allow urgent or life-saving medical interventions even when these would unavoidably result in fetal death.

What this means, readers, is that a state legislature—if it is feeling chivalrous—may (but does not have to) punish women who have abortions somewhat less harshly than doctors who perform them. And a court could also (but does not have to) decide not to punish a woman who undergoes an abortion necessary to save her life—or perhaps knock a few months off her sentence.

Here is the grinning skull behind a lot of the highfalutin moral talk about abortion. Much anti-abortion argumentation embodies the unspoken premise of the passage above: Under the Constitution, a fetus is a person from the moment of conception. The woman who carries that fetus is, well, never a person at all.

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Garrett Epps

Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.