It was an interesting year for the movement to end abortion: one big good day, and a lot of little lousy ones.
The big good day, of course, was the end of Roe v. Wade on June 24, when five Supreme Court justices announced they were returning the power to regulate abortion “to the people and their elected representatives.”
The little lousy days came when the people started using that power.
Every state to hold a referendum about abortion — California, Michigan and Vermont, and even red states Kansas and Kentucky — has come down on the pro-choice side.
I’m disappointed, but only a little surprised. No one should have imagined the end of Roe would end the abortion debate, and the long, hard work of persuasion lies ahead.
But why? For 50 years, abortion supporters kept abortion legal without needing to persuade voters. As long as five Supreme Court justices supported Roe, the voters couldn’t seriously limit abortion without amending the Constitution.
Is there any part of the Constitution that could make things easier for the anti-abortion side?
Some people have looked for one, including legal theorists like John Finnis, Robert George and Hadley Arkes, law professor Michael Stokes Paulsen, and commentators like Ramesh Ponnuru and Josh Hammer, among others. (I first became aware of these ideas through Denver lawyer and scholar Josh Craddock.) These writers disagree on the details, but all have argued the unborn might be protected one way or another by the 14th Amendment — ironically the same amendment that Roe used to make abortion legal.
The 14th Amendment declares that “no state” may “deny to any person ... the equal protection of the laws.”
Most abortion opponents believe the unborn are “persons.” If we’re right, then does “the equal protection of the laws” require unborn lives to be protected the same way human lives are protected outside the womb?
Certainly it would be unconstitutional to pass a law legalizing the murder of women and not men. Why is it constitutional to allow the killing of unborn people but not born ones?
If judges banning abortion sounds crazy, like something dreamed up by “Handmaid’s Tale”-style, Evangelical theocrats, then here’s a surprise for you: it’s been done before, in famously theocratic ... Germany, where the Federal Constitutional Court struck down a liberal abortion law in 1975.
To this day that court requires abortion to be officially illegal at all stages of pregnancy, though first-trimester abortions are not punishable after counseling and a short waiting period.
So why can’t we have something like that here?
To an originalist, these arguments beg the question. I and other pro-life people may believe the unborn are persons — but does the Constitution? More precisely, did the people who wrote and adopted the 14th Amendment in the 1860s understand the Equal Protection Clause to protect the unborn?
The evidence is mixed. Some scholars argue persuasively that 19th-century law considered the unborn to be persons for many purposes, and the unborn were sometimes referred to as persons by both state and federal statutes. These scholars also point out that elective abortion was restricted or banned in 30 of the 37 states when the 14th Amendment was ratified.
But there’s evidence on the other side, too. While abortion was illegal in most places, killing a fetus was not treated like murder. When states considered changing their abortion laws, it seems no one ever suggested that the 14th Amendment had anything to say about the matter.
So what should an originalist do when the original meaning of the Constitution might prohibit something, or might not?
The most popular originalist answer is democracy: If the Constitution doesn’t clearly answer a question, then courts should leave it to the people and their elected representatives. This was five justices’ answer when they ended Roe, and also Justice Antonin Scalia’s answer when people asked him about abortion. It remains the standard answer of the anti-abortion movement today.
But to the “abortion is unconstitutional” advocates, it’s the lazy answer. Nobody doubts today that the Constitution bans school segregation or laws punishing unpopular political speech, and yet the originalist case for those bans is not as straightforward as the originalists apparently expect the abortion argument to be.
You have to be willing (some argue) to look beyond the way people originally applied the Constitution. You need to ask instead about the constitutional texts’ “original public meaning” and how that meaning applies to the facts today.
Did people in the 1860s believe the word “person” included all living human beings? Yes. Are embryos and fetuses living human beings? Again, yes. Today we know, with a vividness that 19th-century science could not imagine, that the unborn are alive and human from the moment of conception.
Therefore the unborn are persons and protected by the 14th Amendment, even if people in 1868 didn’t realize it.
So runs the argument, at least. But does it really have legs?
If you’re hoping (or fearing) the Supreme Court will soon follow the German example, you can stop. No justice has ever argued that the unborn are persons under the 14th Amendment, and even if you convinced five of them, that would be only the first step toward constitutional limits on abortion. After all, even adults’ right to life isn’t absolute.
Despite the Equal Protection Clause, states sometimes let people kill each other: in self defense, in executions, when turning off the ventilators for people in vegetative states. States get to decide who’s alive to begin with — they disagree on how to tell whether someone is dead, and a few people have been legally “resurrected” when they were moved across state lines.
Even if a fetus is a person, nothing in the Equal Protection Clause says how states should reconcile the fetus’ rights with the mother’s — the mother’s right to defend her life and health, her right to control her own body. If one state decides abortion should be legal in cases of rape and incest while another says it should be legal more broadly, the Equal Protection Clause doesn’t obviously interfere with either decision. (And on this point, many advocates of unborn personhood agree.)
In fact, some personhood advocates would oppose a new Supreme Court precedent limiting abortion. Instead, by persuading people that the unborn are persons under the 14th Amendment, they hope to empower Congress. Congress has constitutional authority to enforce the 14th Amendment and, if fetuses are persons, could use it to limit abortion nationwide.
Which leaves us where we started: persuasion, legislation and democracy. One way or another, protecting the unborn means convincing voters that the unborn should be protected. And abortion opponents don’t resent that task — they’re grateful they can finally make their case.
So forget the bad days. For the pro-life movement, it was still a good year.
Alan Hurst is an attorney in Salt Lake City. His opinions are his own and do not represent the views of his firm or his clients