« Kevin Arlyck: Delegation, Administration, and Improvisation
Michael Ramsey
| Main | Federalist Society National Student Convention Today and Tomorrow at Penn Law
Michael Ramsey »


Mark Pulliam on John Finnis on Abortion and Originalism
Michel Ramsey

At Law & Liberty, Mark Pulliam: Is Abortion Unconstitutional?  From the core of the argument:

As a matter of constitutional law, originalists such as Robert Bork, Lino Graglia, and Antonin Scalia argued (correctly, in my view) that, because the Constitution is silent on the issue of abortion, the states should be free to regulate abortion—or not—as they see fit.

But what if everyone was wrong about the premise of the 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 life? What if the 39th Congress intended to include the unborn as “persons” under the Due Process Clause? So argues Professor John Finnis of Notre Dame’s law school in a provocative article in the April 2021 issue of First Things. Finnis acknowledges that the text of the Fourteenth Amendment, drafted in 1866 and ratified in 1868, is silent on the subject of abortion, as is the drafting history and congressional debates on the measure. He nevertheless contends that the intent to protect the unborn is evident in the reliance of proponents of the Civil Rights Act of 1866 (the provisions of which the Fourteenth Amendment was designed to uphold) on William Blackstone’s Commentaries on the Laws of England (1765).

Blackstone assigned the beginning of life (and thus legal protection) to 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. Therefore, if the Fourteenth Amendment was intended to confer on the newly-freed slaves (and others) the rights of Englishmen (as Finnis contends, quoting James F. Wilson, the sponsor of the Civil Rights Act of 1866), the term “any person” in the Due Process Clause includes the unborn. Ergo, abortion deprives the unborn of life without due process of law, and is therefore unconstitutional. In other words, states would be constitutionally forbidden to permit abortion.

Finnis closely explores the reasoning of Roe and delves into the common law background of the concept of “quickening” in America during the 19th century. Finnis is a world class philosopher, and his philosophical arguments are compelling. But wait a minute. The article is about constitutional law, not moral philosophy.

Even if Finnis is correct about the derivation of the Fourteenth Amendment and the meaning and significance of Blackstone’s Commentaries—even if, contra Roe, unborn children are “persons” entitled to due process—does that mean, as the title of Finnis’ article suggests, 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?

And further:

Nor is the Equal Protection Clause a plausible basis for banning abortion under the Fourteenth Amendment. As Gerard Bradley has noted, “States enjoy considerable freedom (consistent with the Fourteenth Amendment) to specify 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 understandably reluctant to micromanage the myriad distinctions, variations, and omissions in states’ penal codes. Laws “discriminate” among post-natal human beings in countless respects, and there is no reason to believe that judicial scrutiny would—or should—be greater for prenatal persons.

It's notable that Professor Finnis' essay has drawn sharp criticism from conservative anti-abortion originalists (see also here from Ed Whelan).  Some critics charge that originalism provides no constraint on judging because originalists will find originalist arguments to support whatever modern policy outcome they prefer.  But the abortion debate shows the contrary.  Finnis' argument has superficial plausibility.  Originalists Pulliam and Whelan favor his outcome (prohibiting abortion) as a policy matter.  They have enormous incentives to adopt his reasoning.  But they see that his argument doesn't really work as originalism, even if it is appealing (to them) as moral philosophy.  (Scalia was the same: a strong opponent of abortion who found as an original matter that the Constitution didn't prohibit it.)  The claim that originalists don't let originalism get in the way of their preferred outcomes is simply mistaken.