Aaron Tang: The Originalist Case for an Abortion Middle Ground [Updated]Michael Ramsey

Aaron Tang (University of California, Davis - School of Law) has posted The Originalist Case for an Abortion Middle Ground (52 pages) on SSRN.  Here is the abstract:

Few originalist arguments are as important as the claim that, at the time of the Fourteenth Amendment’s ratification, 27 of the 37 states in the union prohibited abortion at all points in pregnancy. The State of Mississippi and at least five of its amici advance this claim in Dobbs v. Jackson Women’s Health Organization, a case that invites the Supreme Court to overturn Roe v. Wade. Many scholars have repeated it as well. To originalists, the takeaway is clear. If the public in most states in 1868 understood abortion to be prohibited throughout pregnancy, then present-day state bans on abortion after six weeks—or even earlier—cannot violate the Constitution’s original meaning. The 27- states claim is thus as forceful as it is arresting.

It is also wrong. This Article uncovers several historical errors on which the claim is founded. For example, the oft-repeated 27 figure includes states whose high courts interpreted the relevant abortion laws not to apply before quickening, or the first sign of fetal movement at roughly sixteen weeks of pregnancy. The 27 count also includes states whose abortion laws punished only particularly dangerous forms of abortion (e.g., via poison), while permitting safer procedures. Other mistakes abound. In one instance, pro-life originalists count a state as prohibiting abortion pre-quickening even though the relevant law was enacted after the Fourteenth Amendment.

After assessing the evidence, my best sense is that when the Fourteenth Amendment was ratified, just 15 of 37 states deemed abortion unlawful at all points in pregnancy. In the other 22 states, pregnant persons were free to obtain an abortion at any time before quickening. The public in most states would have thus understood most abortions—those performed before roughly sixteen weeks—to be perfectly lawful when the Fourteenth Amendment was ratified.

To be sure, originalists are still correct that Roe’s viability line would have been unrecognizable to the public in 1868. But just as there’s a major difference between banning abortion after twenty-four weeks and banning it after sixteen, so too is there a big difference between banning abortion after sixteen weeks and banning it after six. Of the three positions, originalism is most consistent with the middle ground.

(Via How Appealing).

The paper's results, assuming they are correct, seem important but less methodologically conclusive than the paper suggests.  The originalist question is not what a majority of states did in 1868.  The question is whether access to abortion was a "privilege[ ] or immunit[y] of citizens of the United States" in 1868.  That question isn't answered only by counting up what states did at the time (although surely the more states that allowed an action to be prohibited, the less one would think that action was a privilege or immunity).  For example, even if most states did not have an income tax in 1868, that would not prove that a state income tax would violate a privilege or immunity.  Plus, 15 of 37 states is still a pretty big number (40%).

RELATED: In the Sixth Circuit's recent decision in Memphis Center for Reproductive Health v. Slatery, Judge Amul Thapar, concurring and dissenting, argues at length that the Roe/Casey framework is inconsistent with the Constitution's original meaning.  Among many other things, he says (footnotes omitted):

The [Roe] majority asserted that it “was not until after the War Between the States that [abortion] legislation began generally to replace the common law.” Roe, 410 U.S. at 139. Not so. According to one scholar, by 1849, eighteen of the thirty states in the Union had passed statutes limiting abortion. Eugene Quay, Justifiable Abortion–Medical and Legal Ethics, 49 Geo. L.J. 395 app. 1 at 447–520 (1961) (collecting statutes). At the end of 1864, twenty-seven of the Nation’s thirty-six states had such laws. Id. On the eve of the Fourteenth Amendment’s ratification, this number had risen to thirty states. Id.; see also Roe, 410 U.S. at 174–75 & n.1 (Rehnquist, J., dissenting) (noting that the number was thirty-six when including the territories). The tide continued to shift in favor of greater abortion restrictions during the Reconstruction Era. Of the seven states that lacked abortion restrictions in 1868—Delaware, Georgia, Kentucky, North Carolina, Rhode Island, South Carolina, and Tennessee—all but one adopted abortion statutes by 1896. See Quay, 49 Geo. L.J. 395 app. 1 at 447–520. And the last of those states passed its statute by 1910. See id. at 475–76.

(Via Ed Whelan at NRO Bench Memos.)

Professor Tang's paper is an important qualifier to these claims -- statutes "limiting" abortion are not necessarily complete prohibitions, and apparently sometimes they weren't.  It's important not to conflate these two claims (to be clear, I'm not suggesting that Judge Thapar does, just that it happens sometimes).  It's possible, as Professor Tang suggests, that Judge Thapar might be correct about the lack of an unlimited right to abortion in 1868 and yet there might have been a limited right to abortion.  But more fundamentally I agree with this point by Judge Thapar:

A right to do something because the state has not yet regulated it is quite different from a right to do something because the state cannot regulate it. Cf. PennEast Pipeline Co. v. New Jersey, 141 S.Ct. 2244, 2261 (2021) (“[T]he nonuse[] of a power does not disprove its existence.” 

UPDATE:  At Volokh Conspiracy, Josh Blackman has similar (but more extended) thoughts: The Fact That X States Failed To Criminalize An Act in 1868 Does Not Mean That Committing The Act Is A Fundamental Right.  From the conclusion:

What would it take to make the originalist case that the right to abortion is "deeply rooted," and was considered fundamental in 1868? Perhaps if it was mentioned in the same breath as other well-known fundamental rights: the freedom of speech, freedom of conscience, liberty of contract, the right to keep and bear arms, and so on. We can cite chapter and verse to support these other rights. But simply looking to states that failed to criminalize an act is not enough.

COMMENT BY ANDREW HYMAN:  When a right is not deeply rooted in history, that is an excellent reason to refrain from constitutionalizing it via the Due Process Clause.  But when a right is deeply rooted, it still must be a procedural rather than substantive right in order to have any plausible constitutional basis under the Due Process Clause.  As Justice Byron White wrote in a 1977 dissent, “Although the Court regularly proceeds on the assumption that the Due Process Clause has more than a procedural dimension, we must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.”  The Court ought to acknowledge that simple truth stated by Justice White, and then conform to it.  As for the substantive provisions in the Bill of Rights that have been incorporated against the states, using the Due Process Clause for that purpose was simply wrong; those enumerated substantive rights should have been incorporated via the Privileges or Immunities Clause whose plain meaning instructs the courts to apply against the states those rights of U.S. citizens that already apply against the federal government.