The pro-life movement may soon find itself at a defining moment. Late last week, the state of Mississippi filed its brief in Dobbs v. Jackson Women’s Health Organization.
The case concerns a Mississippi abortion law passed in 2018 that
prohibits abortions (with limited exceptions) after 15 weeks of
pregnancy.
Mississippi Attorney General Lynn Fitch’s measured and persuasive
defense of the statute argued “abortion jurisprudence has placed this
Court at the center of a controversy that it can never resolve.” It
urged the justices to return “abortion policy to the states – where
agreement is more common, compromise is more possible, and disagreement
can be resolved at the ballot box.”
Under the Supreme Court’s current jurisprudence, which stems from its 1973 decision in Roe v. Wade, the challenged Mississippi law is plainly invalid. Under Roe, as modified in 1992 by the Supreme Court’s decision in Casey v. Planned Parenthood, a state may not prohibit abortion before the point of fetal viability, as Mississippi has done here.
Fetal viability is usually reached about 23 or 24 weeks into a
pregnancy, although it may be reached at 22 weeks in places where
standards of maternal health care are higher. Obviously, 15 weeks into a
pregnancy is far sooner than the normal point of viability. If the
Supreme Court nonetheless upholds the Mississippi law (as some expert
commentators forecast it will do), then the architecture of abortion
law, erected over the nearly half-century since Roe, would be in danger.
The reasons the Supreme Court should deconstruct that architecture
are extremely powerful. There is, as Mississippi argues, no tenable
basis for it in the Constitution’s language, structure, purposes, or
history. Constitutional rules and norms derive from the consensus and
practice of an overriding majority of the states and the people.
Nearly half a century after Roe, it is unarguable that there
never has been, and there is not now, anything like a settled national
consensus on abortion. The Supreme Court has made up constitutional
rules out of thin air.
But an outcome that dismantles Roe and Casey
is by no means a certainty. There are at least two other possible
outcomes – two “compromises,” in addition to a pro-life “victory.”
‘Compromises’
First, the Supreme Court might try to fashion a “compromise” that embeds the “principles” of Roe
even more deeply into its constitutional law. Under the leadership of
three “moderate” Republican appointees — Justices Sandra Day O’Connor,
Anthony Kennedy, and David Souter — that is just what the court
attempted to do in Casey in 1992.
The “compromise” predictably proved to be unstable, which is why,
more than a quarter of a century later, the Supreme Court is facing the
issue of abortion once again. Each of these justices has since retired.
But the court might unwisely persist on their course.
A second compromise is also possible, and more likely. The court
might uphold the Mississippi law and allow states to regulate or
prohibit abortions after a baby becomes capable of feeling pain from the
procedure. That point in the pregnancy might be set at or around 15
weeks, perhaps leaving the states some latitude for judgment.
Such
an outcome might seem like a clean sweep for pro-life forces. It would
not be one, however, if the court also determined that abortions before
that point remained entirely permissible. The overwhelming majority
of abortions occur in the first 14 weeks of pregnancy. A decision like
that would therefore leave states powerless to restrict most abortions.
The result: A pro-life victory, but a hollow one, if the new
“constitutional” line proved to be politically acceptable to most
voters, as might well be the case. Worse, a ban on late-term abortions
that exempts abortions for fetal “abnormalities” including Down syndrome
would preserve the system we have today, except by other rules.
‘Victory’
But let’s return to the possibility that the Supreme Court deals a death blow to the Roe/Casey
policy, and gives states the power to protect unborn human life even
from the moment of conception, if they chose to define that point as the
beginning of human life. Would that not be a stunning victory for
pro-life forces? Yes — or, rather, yes, but…
What would happen if the court returned the question of whether to
legalize abortion back to the states? This would be a welcome
development, to be sure. Yet abortion on demand may still exist, by
legislation, in many parts of the country.
Extremist
states would allow abortion up until — or even slightly after — birth.
Most other states might allow abortion very early in a pregnancy, when
(as we’ve noted) the vast majority of abortions occur.
What if, say, most states enacted laws permitting abortion for any
reason up to 13 weeks into a pregnancy, but restricted abortions
thereafter? In practical terms, Dobbs would not have made much
difference, except in some regions. But that is not the only, or even
the most significant, challenge the pro-life movement would face after
the Supreme Court victory we are imagining here.
A Constitutional Ban on Abortion?
The pro-life movement would still have to address whether to pursue a
new litigation strategy of arguing for a constitutional ban on state
(or federal) laws permitting abortion. That objective would go well
beyond merely reversing Roe and handing off the abortion question to legislatures (and ultimately, voters). It would not be so much the reversal of Roe as Roe in reverse.
Expect the debate over that strategy to dominate the internal
conversations of the pro-life movement for some time — probably years.
Indeed, as Steve Jacobs’s article “The Supreme Court Shouldn’t Return Abortion to the States, But Ban It” in The Federalist shows, the conversation is already well underway.
Jacobs argues strenuously that the movement should seek the
“constitutionalization” of a general nationwide ban on abortion. The
argument is that the Constitution protects human life whenever it exists
– and an unborn fetus is a human life, entitled to government
protection from anyone who would kill it.
Should the pro-life movement mobilize around this argument? Whether
this is a sound strategy depends in part on how deeply you believe the
country has become enmeshed in a post-constitutional regime. Roe and Casey are paradigms of post-constitutional law.
They are unmoored from the text of the Constitution, its structure,
or its purposes. They do not reflect the nation’s historic traditions
nor its prevailing conception of which freedoms are fundamental. They
are arbitrary impositions by a narrow and unrepresentative judicial
elite attentive only to the wishes of a minority of citizens. They are
junk law. If the Supreme Court affirms them, it will be to its indelible
discredit.
If one accepts the view that the true Constitution is irretrievably
gone and we live in a post-constitutional order, then yes, the pro-life
movement could well promote the constitutionalization of an
across-the-board ban on abortion. If the left can wreak havoc in a
post-constitutional world, the right can play the same game. Bring on Roe-in-reverse.
But what course should pro-lifers pursue if they have not wholly given up hope in the restoration of a constitutional order?
Returning Abortion Policy to the States?
Under the framework of the Constitution, the basic answer is simple:
abortion policy is generally left to the states and their people. That
was commonly assumed before Roe. Mississippi’s brief affirms
that history and urges a return to the bedrock rule. If the Supreme
Court agrees, it would thereafter generally uphold state laws that
allow, encourage or fund abortion, as well as laws that regulate or
prohibit abortion.
The Constitution is in fact agnostic about abortion. True, Section 1
of the Fourteenth Amendment protects “persons” against deprivation of
life without due process of law. But are the unborn “persons” in a
constitutional sense?
Scholars like Michael Paulsen (and more recently John Finnis) have argued with considerable erudition that the answer might be yes. Two amicus briefs filed in Dobbs
by state legislators and policy organizations defend the view that
prenatal persons are constitutionally protected (and even that states
have a constitutional obligation to protect them).
Supreme Court case law has long determined
that a business corporation, which is certainly not a natural person,
is a person in the constitutional sense. So a “constitutional” person
does not necessarily equal a human being who has been born and remains
alive.
But it is questionable whether an unborn child is a “person” in the
constitutional sense. Section 2 of the Fourteenth Amendment provides for
congressional representation based on the number of “persons” in a
state. In relevant part, it says:
“Representatives shall be apportioned among the several states
according to their respective numbers, counting the whole number of
persons in each state.”
Were the unborn ever counted as persons in a census of a state’s
population? If not, could someone be a “person” in Section 1 but not in
Section 2 – or is it more likely that the term means the same in both
sections?
Moreover, even if the unborn could be considered constitutional
“persons,” there would remain a question whether a state, in allowing
them to be aborted, was “depriving” them of life without due process of
law. Abortion is an act of private violence, not state action.
Is a state “depriving” the unborn of life by deciding not to intervene affirmatively to save them? It does not seem so.
In general, under the Due Process Clause, the states have no duty to
save an unborn child – or anyone else. The Due Process Clause generally
follows the broad contours of the traditional common law, and under that
law, there is no “duty to rescue,” except where some special
relationship between victim and rescuer exists.
Abortion and Slavery
Abortion is often, rightly, compared
to slavery. Both evils reflect a refusal to acknowledge and respect the
full humanity of a class of people who are indeed human.
Also, the debate over the constitutionality of abortion in some ways
mirrors the debate over the constitutionality of slavery. Until the
Thirteenth Amendment was ratified as a consequence of the Civil War, the
Constitution had never mentioned slavery in express terms (although it
made implicit references to it).
Before the war, there were bold and imaginative abolitionist legal
theorists who had argued that the Constitution did not leave slavery to
the states, but impliedly forbade it nationally, or at least empowered
Congress to do so. For example, they made the argument that slavery was
incompatible with the “Republican form of government” that the
Constitution guaranteed.
Sadly, the abolitionist view was probably not a sound interpretation
of the (original) Constitution. As legal scholars have noted, the
Constitution acknowledged state control over slavery. Even opponents of
slavery like Abraham Lincoln admitted as much.
In the then-prevailing view, slavery was the price that had to be
paid for the Union. Where slavery existed under state law, the Union was
powerless to undo it, unless perhaps the federal Treasury compensated
slave owners for confiscating their “property” — an amount that would
have been astronomical.
Our federalism tolerates the choice of abortion by a state and its
people — just as it tolerates their rejection of abortion, and once
tolerated their choice for slavery.
Where Should the Pro-Life Movement Go?
Pro-life advocates should not want to replace one form of judicial
tyranny with another. After all, what is to stop a future band of
judicial tyrants supplanting Roe-in-reverse with reverse-Roe-in-reverse?
Judicial tyranny begets protracted resistance, as the fevered political aftermath of Roe and Casey shows. We should not readily wish to recapitulate that process for decades longer.
We are a pluralistic nation. We have few common substantive values.
Indeed, we are finding it increasingly difficult to agree even on
neutral procedural rules. And we most certainly do not have a consensus
on abortion.
The Constitution should be understood to recognize our inescapable value of pluralism and to give it room to breathe. Roe
was not just wrong as a legal matter but was also untrue to the value
pluralism that is in our nation’s DNA. It imposed the value perspective
of what was and remains a minority. That is why it remains so unstable a
decision half a century later.
The wonderful and humane energy of the pro-life movement should be
rededicated to creating a national consensus on abortion, not to
agitating for another judicial coup like Roe. Truth, science, and humanity are on its side.
And the moral case against abortion has become ever more compelling
over time. When Roe was decided, we could not see imagery of infant life
in the womb in nearly as much detail as we now can. That scientific
advance has transformed our understanding of prenatal life. Further
scientific advances will do the same.
The pro-life movement should be sponsoring a pro-life constitutional
amendment. It will take decades of hard work to build the coalition that
will ratify it. But it is worth the effort.
https://thefederalist.com/2021/07/29/why-we-need-a-pro-life-constitutional-amendment-even-if-the-supreme-court-modifies-roe-v-wade/
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