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Ed Whelan on John Finnis on Abortion and the Constitution
Michael Ramsey

At NRO Bench Memos, Ed Whelan: Are Permissive Abortion Laws Unconstitutional?  From the introduction:

In the current issue of First Things, the distinguished scholar John Finnis has a noteworthy essay bearing the title “Abortion Is Unconstitutional.” In that essay, Finnis goes beyond arguing merely that Roe v. Wade was wrongly decided and that abortion policy should be decided by democratic processes in the states. As his title suggests, he instead argues that the unborn child is a “person” within the meaning of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment and, as such, possesses general protections against being aborted.

I will explain in this post why I am not persuaded by Finnis’s argument. At the outset, let me emphasize three points. First, I fully agree with Finnis that “prohibiting the killing of the unborn is a matter of simple justice to the most vulnerable among us.” Second, as I observed more than fifteen years ago in setting forth the “three competing positions on what the Constitution says about abortion,” I believe that the argument that Finnis is making “is far more credible than the position taken by the Court in Roe.” Third, in the years since then, advocates of that argument—such as law professor Michael Stokes Paulsen (author of “The Plausibility of Personhood”), Joshua Craddock, and Finnis himself—have deployed the methodology of originalism to make a much stronger case for their position than I had been aware of.

And from later on:

According to Finnis, by the end of 1868, 30 of the 37 states then in the Union had enacted anti-abortion statutes that superseded the common-law prohibition on abortion after quickening, and 27 of these 30 states criminalized abortion “before (as well as after) quickening.”

That would mean that the Fourteenth Amendment, on Finnis’s reading, obligated at least ten states to enact statutes that generally prohibited abortion from conception. If this “plain meaning” would have been “too obvious to need discussion” among the ratifying legislators, wouldn’t we expect some evidence somewhere that some legislators in those ten states recognized that the Fourteenth Amendment would obligate them to enact such statutes? Or that, immediately after the Fourteenth Amendment was ratified, legislators in most or all of those states would have enacted such statutes and cited the Fourteenth Amendment in support of doing so?

This, after all, was the heyday of the movement to codify prohibitions on abortion. By Finnis’s numbers, roughly half the states in the Union had enacted anti-abortion statutes in the two decades before 1868. How simple it should have been for proponents of such statutes to alert legislators in the ten states that they needed to codify a general ban on abortion from conception, and how prompt, under Finnis’s theory, would have been the response.

As Robert Bork wrote in a First Things debate on the same topic two decades ago:

It passes belief that nobody would have said so or raised the question for discussion, but the records are bare of any such question or discussion. The conclusion can only be that those who adopted these Amendments addressed only the rights of persons who had been born.

Agreed, though I would say that the question is whether a fetus was defined as a "person" in nineteenth century law prior to 1868.  The understandings of the state legislature are relevant to the question, but not decisive.  As to the definition of "person," it seems to me that Professor Finnis makes some interesting points but ultimately does not show any more than that a fetus was considered in law as a person for some purposes but not others, to a greater or lesser extent depending on the state.  That does not seem enough to establish a constitutional rule as an originalist matter.

Of course, if originalism is not our law, conservative Justices might conclude that evolving understandings of the beginning of life might make it appropriate to give the unborn all the rights of born children, irrespective of the 1868 understanding.