Ed Whelan has responded to John Finnis’s argument that abortion is unconstitutional—that the Fourteenth Amendment included the unborn in its original meaning and thus protects unborn persons from abortion—with three doubts and criticisms. Whelan and Finnis agree on many underlying issues, namely the moral horror of abortion and the constitutional abomination of Roe and Casey. But Whelan, like the late Justice Antonin Scalia, believes that, as an originalist matter, the question of abortion must be determined through the democratic process in the states. Having recently debated Whelan on this topic, I think none of his three objections to Finnis withstand close scrutiny.
Whelan’s first criticism: Finnis observes that by the end of 1868, thirty of the thirty-seven states prohibited abortion, and twenty-seven of these banned it even before quickening; Whelan objects that if the Fourteenth Amendment included the preborn in its original meaning, we would expect the remaining ten American jurisdictions to have recognized their obligation to prohibit abortion from conception after the Amendment’s passage. But the post-ratification pattern matches what Whelan says we would expect to see if the Fourteenth Amendment recognized preborn personhood. By 1883, seven more states joined those thirty that prohibited abortion at all stages by statute, irrespective of quickening—Colorado, Delaware, Georgia, Minnesota, North Carolina, South Carolina, and Tennessee. Furthermore, even if a small minority of states retained the common-law quickening distinction, it may not pose the dilemma that Whelan suggests. The common-law quickening rule was evidentiary in nature; its principle was that where human life could be shown to exist, legal personhood existed also.
Whelan imposes an unreasonably high burden of proof that originalists do not apply to any other question. For instance, many states continued to segregate education and prohibit racial intermarriage following the Fourteenth Amendment’s ratification. Rep. John Lynch, a black representative from Mississippi, assured the House that the Civil Rights Act of 1875—an act designed to instantiate the Fourteenth Amendment’s civil rights guarantees—would not require states to racially integrate schools. And Sen. Lyman Trumbull assured his colleagues that nothing in the Fourteenth Amendment would upset state laws prohibiting marriage across racial lines. Applying Whelan’s argument to the racial context would suggest that an originalist interpretation of the Amendment cannot support the decisions in Brown v. Board of Education and Loving v. Virginia. But Whelan has defended originalist justifications of Brown, and has written favorably about originalist justifications of Loving. Why then does he apply a different and much higher standard of proof in the abortion context than in the context of school segregation and interracial marriage?
The higher standard Whelan applies in the abortion context is all the more unreasonable given that historical evidence shows that the legislators who passed state anti-abortion statutes referred to the preborn as “children,” spoke of abortion as “murder,” and classified abortion among the criminal acts “against the person.” Whelan suggests that, to prove his case, Finnis must uncover legislative history showing that the legislators who enacted anti-abortion statutes did so self-consciously in response to their obligations under the Amendment. Certainly, a legislator’s statement explicitly tying anti-abortion statutes to state obligations under the Fourteenth Amendment would be superb evidence to add to the mountain of other historical evidence supporting constitutional personhood. But the absence of such a statement does not show “that those who adopted these Amendments addressed only the rights of those who had been born,” as Judge Bork believed. One cannot help but remark upon the oddity of an originalist who disregards substantial evidence about the original public meaning of an enacted text for lack of a clear statement in legislative history.
Whelan's second objection is this: If the Fourteenth Amendment required the states to protect preborn human beings from abortion, then the Fifth Amendment would have imposed a similar requirement on the federal government from 1791 onward (assuming that the original public meaning of “person” in 1868 was coextensive with the original public meaning of that term in 1791). Whelan writes that Congress did not act to ban abortion from conception in the District of Columbia “over the several decades before 1868” or “in 1866” or “in the proximate aftermath of ratification.” On Whelan’s reading, because D.C. did not act “until 1901,” then like the ten states, the federal government must not have understood such a law to be required.
As a matter of historical fact, however, the opposite is true. The District of Columbia at all times from its establishment in 1800 to 1872 recognized the common-law prohibition on abortion. In 1855, Congress proposed a code to be approved by District residents that would have included a statutory prohibition on abortion both prior to and after quickening, but the code was never adopted. In 1872, the Legislative Assembly for the District of Columbia, acting under the authority of Congress, enacted a comprehensive ban on abortion that abolished the common law quickening distinction to prohibit abortion “in any stage of pregnancy.” The law deemed abortion homicide, rendered abortionists guilty of criminal manslaughter, and imposed additional penalties for accessory liability. This statute remained in effect until 1901, when all previous D.C. statutes were superseded by Congress’s Code of Law for the District of Columbia. The 1901 Code that Whelan refers to also prohibited abortion from conception.
Whelan’s final criticism regards Finnis’s claims about the Supreme Court’s role in supervising state laws. Whelan suggests that “under Finnis’s theory,” the Supreme “Court would be in some way requiring the states (or Congress) to affirmatively enact criminal laws prohibiting abortion.” Only Finnis can elaborate on his argument, but this reading is improbable. Presumably, Finnis has in mind nothing more than the continued judicial review of state laws concerning homicide and abortion to ensure their compliance with the Fourteenth Amendment. Just as the Supreme Court “supervised” the task of school desegregation in the aftermath of its Brown II decision, so too would the Supreme Court continue to address the cases and controversies that would inevitably arise after an initial decision to acknowledge the equal constitutional personhood of the preborn. In context, Finnis simply seems to envision that the contours of that jurisprudence would resemble the “regulative regime” on which the country settled between 1820 and 1880.
There is no reason to suppose that the Court would require states or Congress to enact criminal laws prohibiting abortion, or hold legislators in contempt should they fail to do so. The Court would simply resolve equal protection claims as it always does, following its precedent in Yick Wo v. Hopkins. Where the protections of state homicide laws are wrongfully withheld from preborn persons, the Court would issue rulings requiring states to extend equal protection to preborn persons with respect to those homicide laws before they could be enforced. This would in practice operate no differently than when the Court enjoins a state from continuing in effect any other discriminatory policy violative of equal protection (for example, a law criminalizing only the murder of a white person).
The historical evidence for constitutional personhood is more than simply plausible, or even probable. It is clear and convincing. Legal conservatives and originalists should adjust their views in response to the evidence rather than insist that the question of abortion be returned to the states. As a matter of political morality, the states-rights view on abortion is nothing other than an echo of Stephen Douglas’s arguments. Lincoln rightly rejected Douglas’s “popular sovereignty” with respect to slavery, and understood that America could not endure “half slave and half free.” So too with abortion.
Josh Craddock is an affiliated scholar with the James Wilson Institute on Natural Rights and the American Founding.
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