What would a pro-life constitutional strategy look like? Would it involve simply overruling Roe v. Wade and returning abortion policy to the states, where the states could then be persuaded to use their newly-won states rights to restrict abortion? Or should pro-lifers adopt the view that legal abortion is itself unconstitutional, and that the Supreme Court and other government agencies should act with this in mind?
The distinguished philosopher John Finnis recently published an article in the journal First Things this year arguing that legalizing abortion is unconstitutional.
I won’t go into the details of his arguments, which persuasively (in my mind) show how those who adopted the Fourteenth Amendment understood that treating all persons with due process and equal protection meant protecting the unborn from abortion. I happen to have found a quicker route to Finnis’ conclusion, which I think overlaps with his route.
The Supreme Court acknowledged in its Roe decision: “If this suggestion of [fetal] personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.” 410 U. S. 113, 157. The Court went on to say that the unborn were not persons. But for prolifers, who believe the unborn are persons, then this fact, applying the Court’s premises, leads to personhood for the unborn.
Going back to Runnymede, the Anglo-American tradition holds that no free person can be outlawed without due process. Outlawry is to put an individual outside the protection of the law so (s)he can be legitimately killed. Outlawry involves the government stepping aside and letting private actors do its dirty work.
Supposing, for the sake of discussion, that the meaning of the Fourteenth Amendment is unclear. Newsweek opinion editor Josh Hammer deals with that possibility: if there’s “multiple plausible interpretations of a certain constitutional provision, one should err on the side of the American constitutional order’s overarching substantive orientation toward natural justice, human flourishing and the common good.”
Antislavery activists dealt with a similar situation before the Civil War, with this difference: the antebellum Constitution was designed to give some accommodation to slavery, whereas the Fourteenth Amendment was not crafted to accommodate the abortion interests. Indeed, the toughening-up of the abortion laws can be traced back in many cases to the time of the Fourteenth Amendment. Also, the slavery dispute was resolved by a bloody civil war – in contrast, the casualties in the “abortion wars” among the already-born look to be rather minimal (though they ought to be zero) compared to the already-existing killing of the unborn (which also ought to be zero).
The slavery comparison is worth pursuing, though, because as with legal abortion, there was some tension (to put it mildly) between the antebellum institutions of African slavery and the traditional guarantees of American liberty. Instead of accepting the few constitutional accommodations with slavery – noninterference with the slave states, increased representation for slaveholders, the forcible return of fugitives who reached the free states – the American establishment pushed the constitutional order into a region of lawless oppression in which the few concessions to slavery were expanded to overrule equally-valid guarantees of freedom.
The recapture of alleged fugitive slaves, for example, was deemed so important as to override specific Constitutional guarantees of judicial protection and jury trial for persons claiming to be free. The recognition of slavery for limited purposes was used by the pro-slavers as a launching-pad to put the federal government on the side of slavery in the federal territories, in foreign relations (pushing the slave interest abroad), and even in the operation of the postal service (keeping abolitionist literature out of the mail). “Give them an inch and they’ll take a mile” was a slogan which was very much validated in the case of slavery. The abortion analogues would be the unqualified subsidies voted by Congress for abortions, the promotion of abortion abroad under the umbrella of “family planning,” and so forth.
Under these circumstances, it is understandable that some antislavery activists (rejecting the anti-Constitutional philosophy of Garrison) developed a counter-interpretation of the Constitution as banning slavery. Frederick Douglas, Lysander Spooner, William Goodell and Gerrit Smith were examples of people taking this “radical” position.
The 1852 convention of the Liberty Party, which nominated Goodell for President, proclaimed uncompromisingly, “RESOLVED, that, inasmuch as murder is an element in the infernal compound of slavery, there can no more be a law for slavery than for murder.”
These Liberty Party activists were only “radical,” as I have said, because there clearly were some provisions of the Constitution designed to shield slavery. In other words, it was the law itself that spawned them. Were this not the case – if there was no indication of a constitutional design to protect slavery – the “radicals” would have been entitled to claim the mainstream. And since unlike slavery, abortion received no special protection in the Constitution, modern prolife Douglasses and Spooners can clear themselves of the charge of radicalism and boldly claim the mainstream.
Abraham Lincoln and the Republicans, recognizing the Constitutional accommodation of slavery, shied away from the “radical” interpretation and instead, basically, took the position of giving the slave interest only what the Constitution clearly guaranteed and no more. Slavery was an exception to the general rule of freedom, and unless clearly protected under the positive law, slavery was to be curtailed.
Even in this climate, where the Republicans recognized the existence of some constitutional protection for slavery, the “states’ rights” position was still a moral nonstarter. The stance of letting local communities decide on the slavery issue for themselves was not associated with Lincoln and his colleagues, but with Stephen (not Frederick) Douglas, who attempted a “middle ground” between pro- and anti- slavery. Let the inhabitants of states and territories decide whether to permit slavery, Stephen Douglas insisted, and the controversy would go away on its own.
In the case of abortion, recognizing abortion as a states’-rights issue is a damaging concession, even less justifiable than in the case of slavery. Since the existing Constitution can without significant strain be read to protect the unborn, then recognizing a “state right” to legalize abortion would be a retrograde step.
Even in the gloom and dark of the present situation, a principled stance for the rights of the unborn under the Constitution is the most practical step. It will, as Josh Hammer indicates, moved the famous “Overton window” – the boundary in political discourse separating the thinkable from the unthinkable – so as to make unconditional hostility to any “right” to abortion a position all sides must engage with.
By Fred Albert Dane