Does Originalism Alone Undermine Roe v. Wade? Chris Green

A number of observers, notably long-time nonoriginalist Adrian Vermeule, have expressed some puzzlement (or perhaps delight at the opportunity for a reductio ad absurdum) at the idea that Jack Balkin might be an originalist despite arguing that the original meaning of the Fourteenth Amendment is consistent with the result in Roe v. Wade. However, it seems unremarkable to me that the original meaning of the Fourteenth Amendment, when taken in tandem with sufficiently heroic factual assumptions, might support Roe v. Wade or Obergefell v. Hodges.

It is widely recognized that the Fourteenth Amendment contains some sort of provision--disagreement persists about which provision--that broadly and abstractly requires equality in civil rights among similarly-situated American citizens (and perhaps among non-citizens too). I think the provision is the Privileges or Immunities Clause; others think it is the Equal Protection or Due Process Clause, but just about all observers of the original meaning of the Fourteenth Amendment think that somewhere, the Fourteenth Amendment requires equality.

The key question for the result in Obergefell isn't the issue of original meaning so much as whether there is an adequate judicially-cognizable basis for thinking that same-sex couples are similarly situated to opposite-sex couples with respect to the purposes of marriage. Likewise, the most important question in Roe, Casey, and Dobbs isn't the meaning expressed by the text of the Fourteenth Amendment in its original context so much as whether there is an adequate judicially-cognizable basis for thinking that pregnant women are similarly-situated to those who are not pregnant, either (a) because the fetus is not sufficiently important to be protected, i.e., Michael Tooley and Mary Anne Warren's fetal-personhood-denying defenses of abortion are right, or (b) because a pregnant woman's interest in bodily integrity overrides any rights the fetus might have in being protected, or interests the state might have in protecting them, i.e., Judith Thomson's kidnapped-violinist defense of abortion is right.  These latter issues, if resolved in favor of abortion rights, can in tandem with the Fourteenth Amendment's original meaning easily produce the basic result in Roe.

Of course, Roe itself nullifies any Thomson-style argument by saying that fetal personhood if established obviously undermines abortion rights, and expressly declares itself agnostic on the Tooley-Warren-style argument against fetal personhood itself. These add up to agnosticism on the key issues and a mandate for deference to states who disagree with both arguments. Further, I have myself expressed extreme skepticism (see here, here, and here) about the factual predicates necessary for either Obergefell or Roe, especially the idea that those factual predicates could be rendered "clear," as I think judicial review requires. But those who disagree on that latter point can still agree with me about the Fourteenth Amendment's textually-expressed original meaning as such. Put another way, opponents of Roe don't need just originalism in order to win; they also need at least a measure of skepticism (perhaps Roe-supplied skepticism) about the substantive case for abortion rights.