Over in First Things, John Finnis made the case that abortion is unconstitutional. You should read it. He rests his case on the 14th Amendment, particularly its first section. He argues, persuasively in my view, that if the original public meaning of “persons” was wide enough to include colorations as legal persons, the due-process clause should also apply to the unborn.
Ed Whelan has raised his doubts here at NR, and remains committed to what might be seen as Justice Antonin Scalia’s view that constitutionally speaking, the best that can be hoped for is that Roe v. Wade is overturned or undermined at the Supreme Court level and abortion law jurisdiction is returned to the states. And Joshua Craddock has responded to Whelan.
The disagreement has degenerated into a lot of useless sniping. I’m not going to link to these because some of them are clearly the product of too much drinking or radicalization in some private chat room. But, a number critics of legal originalism or “Conservatism Inc.” have alleged that conservatives who haven’t abandoned originalism as a failure yet are demonstrating their bad faith or possibly their corruption.
These critics would have us abandon originalism as a failure or a piece of nonsense and push for a Court decision that would immediately recognize the personhood of the unborn, and immediately criminalizing all abortion, while having the Supreme Court supervise state homicide laws. Some advocates support this with a theory that the majesty of this change in the law itself would convince many abortion advocates to change their opinion, just as the shocking legal advances of same-sex marriage seemed to move public opinion.
Now, for what it’s worth, I’m for an “any good idea” strategy to stop abortion. I don’t contribute my efforts to all of them, only to the ones I think wisest or most suitable for me, but I’d welcome any positive contribution managed by any of them.
I’m for people who believe in the Personhood Amendment, and in re-reading the 14th Amendment. I’m for crisis pregnancy centers and sidewalk counseling. I’m for doing direct action and for pushing the limits of exposé journalism. I’m particularly interested in the direct, almost bespoke, personal interventions of groups such as Let Them Live. I’m for prayer and fasting. I’m for any good that can be done by pro-life feminism or pro-life atheism and even ecumenical events. I’m for trying to undermine abortion directly with the law and activism. I’m for undermining it more indirectly with good art that is meant to address our cultural deafness to unchosen obligations.
Finnis’s case about the 14th Amendment has been a part of the anti-abortion movement for decades. If I recall correctly, I believe our own Ramesh Ponnuru believes that, rightly understood, it forbids legal abortion. I do as well. One of the major anti-abortion activist groups has been an advocate for it, promoting either a reading of the 14th Amendment that prohibits abortion or the passage of a “Personhood Amendment” that clarifies this meaning and settles it across the country in a durable way.
The challenge is that this theory has even less support in the judiciary that originalism. Maybe it will someday, but in the meanwhile, states that do try to pass worthwhile restrictions on abortion or personhood laws are hampered by the higher courts. They could be given more room if authority was returned to the states. If you think that the millions of people trying to get Republican candidates to vow to appoint originalist justices in the hopes of giving those states the relief and freedom of action they deserve on this issue is insincere, or a kind of conspiracy, you need help. Yes, Republicans have been extremely slow on this issue, and yes, pro-lifers have given too much leeway to them to counter-signal the cause. Fifteen years ago, I despaired entirely, but the raft of good legislation in some states over the last decade has changed my mind. The appointment of Amy Coney Barrett to the Supreme Court gives me some hope that even if many elected Republicans would like to hoodwink pro-lifers, we may win some victories despite them.
And I am dubious of the magisterial power of the law to cut so dramatically against the tide of public opinion in the United States on this question. When the Obergefell ruling happened, opinion in favor of same-sex marriage had already gone from an extremely marginal cause to a near coin-flip. The other side isn’t just assertive, it is extremely shrewd about how it advances. So must we be. Ireland’s Eighth Amendment, passed not so long after Roe and in fear of a similar ruling in Ireland, was drafted in a way that stated very clearly that the state had no right or legitimate power to provide legal abortion. That amendment fell by popular referendum after decades of being undermined by the people themselves.
But my attitude is much the same here as with other critics of conservatism from the right. They accuse us that “Liberalism has won all its battles with you.” I shrug. Insofar as that it is true, it has won all its battles with you, too. If we are for changing American law on this issue, it is a matter for all Americans, not just one faction or sect within that faction.
I’d be surprised if any of our strategies work, given the state of things. I expect more discouraging reversals and pleasant surprises. But we must keep pushing. The very problem the current originalist approach will run into is the American people, their expectations, and their ambitions. Where those expectations and ambitions run against the law — as they are on laws restricting marijuana — the teaching power of the law fades. This problem can’t be wished away by an assertion. It has to be met manfully and creatively.