Defending my argument that the unborn are persons within the meaning of the Fourteenth Amendment's equal protection and due process clauses, Josh Craddock has replied to Ed Whelan, the eminent and always illuminating commentator on Supreme Court decisions old and new. Whelan has responded to him, and I am joining in. The thrust of Whelan's questions helps me improve the argument so as to clarify, historically, what was plain and what was not so plain about the amendment's public meaning.
“I argued that if Finnis were right,” says Whelan in response to Craddock, “we should have expected immediate enactments in most or all of those ten states”—those which by 1868 had not yet reformed the common law or which, in doing so, had not made attempted abortion an indictable offense before quickening—and “that we should have expected legislators to cite their Fourteenth Amendment obligation, and that we should have expected some ratifying legislators from those states to raise the issue.” And Whelan says he is listing these unfulfilled expectations, these absent actions and citations, to respond to “Finnis’s particular claim that the absence of evidence is because the ‘plain meaning' of the Fourteenth Amendment would have been ‘too obvious to need discussion.'”
But my claim about “plain” and “obvious” meaning was and remains different. First: It was not made to try to explain the “absence of evidence” that Whelan quite reasonably identifies. I will do so in this posting. Second: When I imagined a question being put to a state's ratifying legislators, and getting—from those who knew their Blackstone and post-1802 medico-legal learning—the answer “It is obvious. . . ,” the question was not “What is the amendment's impact on our law?” Instead it was “Does the amendment's key term ‘any person' properly include the unborn?”
Putting the latter question to the average ratifier more simply than I did: Do you take “any person” to include everybody Blackstone talked about when beginning to expound the Law of Persons and their rights—all human beings, all God’s children. . . ? The answer would certainly have been “Yes.” And do you think, like Blackstone, that people begin at conception? Again, the answer would have been “Yes.” As I will show, there is no tension between the reality of those settled convictions and the evident absence of abortion-related appeals to the amendment during the same period.
In what follows, “the amendment” refers to the rule or double rule set out in the Fourteenth Amendment's first section's third (due process) and fourth (equal protection) sentences. But it is equal protection that most matters here.
How can one explain the lack of evidence that the Fourteenth Amendment was appealed to by the reformers who, as in the 40 years before so in the 20 years after the amendment, made state criminal law's protection of the unborn more equal both to the protections for other persons and as between early and late in gestation?
The main explanatory factor, as we will see, is that even among legislators who assumed that the unborn are included in the scope of the amendment's “any person,” it was reasonable to judge that nothing would be gained by making such an appeal. That judgment would have been reasonable, as we will see, even if the first two decades after ratification had not also been distracted by highly restrictive views about the amendment's reach and impact, views derived from “purposive” applications of more or less crude “mischief-rule” approaches to interpreting the amendment's impact both on persons and on denials of equal protection. To indicate the nature and scale of these interpretative distractions, consider three contemporaneous perceived restrictions on the amendment's reach that have long since been rejected.
(A) An ultimately indefensible limitation of “any person” to the persons whose protection motivated the amendment seems to have been first judicially stated in cases that declared corporations excluded from “any person,” despite being known to all lawyers to be (artificial) persons. The classic articulation was by Judge William B. Woods in the 5th Circuit in early 1871; he made two points: (a) the meaning of “person” in the third and fourth sentences of the Fourteenth Amendment's first section is restricted to natural persons by its use in the first sentence (persons born or naturalized in the United States), and (b) this restriction is “strengthened” by history “so fresh in all minds as to need no rehearsal”—an allusion to the category of person the amendment's framers were concerned to benefit (a category that he could, in the context, leave unspecified: perhaps all human beings, perhaps freedmen, African Americans).
(B) A second restriction was declared by the Supreme Court in early 1873, spelling out starkly what Woods's point (b) had left unspecified, and narrowing much further the categories of persons protected by the amendment. Applying directly, and crudely, the “mischief rule” of interpretation—under which legal provisions are read (and their scope is narrowed) in light of the social harm or “mischief” they were consciously designed to remedy—the Court took the position that a law would defy the amendment only if it discriminated by race:
In the light of the history of these amendments, and the pervading purpose of them. . . . , [w]e doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of [the equal protection clause].
Restrictions (A) and (B) would remain in place until 1886. The grounds upon which the Court changed its mind and removed them show, as we will see, why the plain (lawyers') meaning of a key term can rightly entail that the rule extends to persons or matters that were not within the articulated purposes or conscious thoughts of those who made and ratified the rule.
(C) A third restriction was vaguer but more pervasive and only gradually gave way. In 1888 the Supreme Court bluntly summarized the doctrine at work in even very early decisions it made about the amendment: The equal protection clause “was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation.” The Civil Rights Cases of 1883 had stressed that the amendment bears only on “State legislation” or “State action” that impairs privileges or immunities or injures persons in life, liberty, or property or denies to any one of them the equal protection of the law. The implicit baseline for identifying a singling-out, an impairment, an injury, or a denial was the common law and the long-established legal institutions accepted in the (victorious) states in 1866.
Women had always been disqualified from practice in the courts: The Supreme Court in 1873 held this to be consistent with the Fourteenth Amendment's first-sentence guarantee of citizens' “privileges and immunities.” And no one in the courtroom even suggested that the amendment’s fourth-sentence guarantee of equal protection had any impact on the issue. Everyone took for granted that it did not. (A complete “absence of evidence”!) The same scenario in the Court in 1874, about women's exclusion from the vote: argument and unanimous opinion about first-sentence privileges, from no one any whisper of fourth-sentence denial of equal protection. Nor did equal protection restrain these opinions from treating as constitutionally unquestionable the disqualification of married women from owning property or contracting generally.
In 1880 a judgment of Justice Field in the Supreme Court mentioned disqualification of females from jury service, and trial of female defendants by all-male juries, as uncontroversial examples of a law or practice completely consistent with Fourteenth Amendment equal protection. And who in those decades thought the amendment had any impact on the disadvantaged status of children born outside wedlock?
In all such matters, the equal protection clause (and somewhat similarly the due process clause) seemed to everyone irrelevant: Race discrimination aside, the amendment would not be engaged unless the state's legal protection of some class of person's rights or interests had been recently reduced. The samples given in the previous two paragraphs are just a few of many. Nor was restriction [C] merely a legalistic imposition by the courts; rather, it seems to have articulated assumptions very widespread if not universal since the amendment was first mooted.
In First Things in 2003, Robert Bork put more sharply Ed Whelan's present challenge to explain the “absence” of appeals to the amendment in the interests of abortion law reform:
No one concerned in the adoption of these Amendments could have been ignorant of the fact that life did or could exist at some time prior to birth. Thus, if they intended to protect all human life, they would have known that the Amendments did, or very probably would, prohibit some category of abortions. It passes belief that nobody would have said so or raised the question for discussion, but the records are bare of any such question or discussion. The conclusion can only be that those who adopted these Amendments addressed only the rights of persons who had been born.
The truth, as history shows, is the opposite. It “passes belief” that any legislator would have “raised the question [of the Amendment's impact on abortion law] for discussion”—either when ratifying the amendment or when urging abortion law reform in the decades following it. That is not because the ratifying generation thought the unborn had no rights. As detailed in my essay (and clear from Blackstone), abortion was completely unlawful under common law, though on the more widely accepted view only an indictable offense from “quickening” on. One manifestation of this pervasive unlawfulness: If you helped a woman get an abortion at any stage of pregnancy and she died, you had committed murder.
No, even in the absence of the three distractions I have been sketching—distractions long since dispelled by Supreme Court precedents that no one today would abrogate—the amendment would have seemed to lawyers of the ratifying generation to afford no assistance in their projects of abortion law reform. And with restriction [C] in place, the amendment quite certainly was of no help to an anti-abortion campaigner appealing to considerations of equality, nor to a physician urging legislation to make clearer the legality of terminating a pregnancy to save the mother's life.
For however slow it was to reform the common law's real but relatively weak “establishing” of the “absolute [that is, natural] right to life” of pre-quickening unborn persons, a state was still not engaging in state action “singling out” either the early unborn child or the mother with a dangerous late pregnancy as a “special subject for discriminating and hostile legislation.” A new federal constitutional provision regarded as not requiring reform of immemorial laws excluding married women from owning property, all women from legal practice and the jury, all illegitimate children from various titles to inheritance, and countless citizens without property from the (racially neutral) right to vote, could not be a plausible lever, rhetorically or litigiously or even in citizenly good conscience, to enhance the existing legal protection of the pre-quickening unborn or to whittle down the procedural obstacles to prosecuting unlawful termination of pregnancy at any stage of gestation.
Restriction [C] only decisively gave way, it seems, in the aftermath of Brown v. Board of Education of Topeka (1954), where the Supreme Court had spent a year seeking evidence of specific framers'/ratifiers' intent to abolish racial segregation, found an absence of sufficient evidence, and nevertheless ruled segregation of public schools a violation of equal protection.
Long story short, not until the 1960s watershed did the Court's conception of denying equal protection finally establish the clause as a basis for roving examination of state laws and institutions, including those pre-existing the 1860s baseline of laws and policies, to test them for (at least, and in some cases more than) the “rational basis” of their classifications and their withholding of rights. The arguments of Bork and Whelan can seem plausible only because we have lived for more than half a century on this side of the watershed—so long that we have forgotten how remote the amendment was, for nearly a century, from state-legislative argumentation on countless aspects of criminal, civil, and state-constitutional law and procedure where “equal protection” in the term's plain meaning was arguably denied.
For state legislators in the closing decades (say 1865–85) of the great statutory reforms of abortion law, what counted was not the contentious, highly disputed legal impact of a newly introduced federal constitutional protection for African Americans. What counted was establishing, and then appealing to, the physician-emphasized facts about the life of the unborn, especially during those months before “quickening” which the common law had tended to treat as evidentially too obscure and problematic to be a basis for specific indictments, save where the mother too had perished in the attempt to extinguish it. An effective rhetoric of reform would, and did, keep attention focused on that little human being, on the unborn child's, even the embryo's, claims on our conscientious sense of justice, not forgetting its mother's right to life.
Short story shorter, the only way the Bork-Whelan test would have been verified or falsified is if people in 1866–9 were saying, “let’s get rid of anti-abortion law”; but they weren’t, so amendment protections were not needed, so they were not talked about in this context.
The 1960s watershed, when long-established aspects of state law began to be voided as denials of equal protection, involved attenuating or overriding restriction (C) but was made possible by the Supreme Court's 1886 rejection of restrictions (B) and (A), the limitation to race discrimination and to “natural” persons. In that momentous Santa Clara County decision of the Supreme Court not to hear argument about whether the amendment's equal protection clause protects corporations because “We are all of opinion that it does,” the “we all” included William B. Woods, now a justice, whose ruling of 1871, in both its points, was being totally reversed.
Though the Court has never laid out reasons even when confronting passionate dissents, by Justices Black in 1938 and Douglas in 1949 (each advancing the same arguments as had swayed Woods in 1871), the main justification for recognizing corporations as Fourteenth Amendment persons can be found within the leading opinion in the Circuit Court judgment being appealed, given by Justice Field (who, incidentally, also sat in the appeal).
In pride of place in Field's opinion were words of Chief Justice Marshall for the Court in the Trustees of Dartmouth College v. Woodward (1819). The question there was whether the charter establishing Dartmouth College was a contract protected by Art. 1(10) of the U.S. Constitution against a state law remodeling the charter. Art. 1(10) says: “No State shall pass any . . . law impairing the obligation of contracts.” Marshall's argumentation is highly relevant to the present debate about the unborn as Fourteenth Amendment persons. For it distinguishes the plain or obvious meaning of a provision's key term (or terms) from the range of subject matter on which the provision was expected and consciously motivated to impact—in the present context: Does the Fourteenth Amendment impact only (race discrimination aside) new legislation/state practice? Or the whole body of a state's law and policy? Affecting any person? Or only natural-not-artificial persons? Or only racially oppressed persons?
The object of the Constitution's “obligation of contracts” provision (“contract clause”)—that is, the subjective motivation of its framers and ratifiers—was, indisputably, to protect contracts where “the parties . . . have a vested beneficial interest” in their contract's obligations and the performance of them, something certainly not true of a charter establishing an educational college generations ago. The passage that counted in Field's Santa Clara County Circuit Court judgment begins as Marshall is making the point that was crucial in 1819, crucial in 1883/6, evaded by Roe in 1973, and still crucial in 2021:
It is more than possible, that the preservation of rights of this description was not particularly within the view of the framers of the constitution . . . But although a particular and a rare case may not, in itself, be of sufficient magnitude to induce a rule, yet it must be governed by the rule, when established, unless some plain and strong reason for excluding it can be given.
(Certainly the Roe majority were unable to give any reason either plain or strong for excluding the unborn from the category in which basic legal understanding of persons, in the mid-nineteenth century, placed them.) Anyone wishing to show that there was a tacit exception to the plain legal 1789 meaning of “contracts” in Art. 1(10) must, Marshall goes on, surmount a high hurdle:
It is not enough to say that this particular case was not in the mind of the Convention . . . nor of the American people, when it was adopted. It is necessary to go farther, and to say that, had this particular case been suggested, the language would have been so varied, as to exclude it, or it would have been made a special exception.
Counsel for the corporations in Santa Clara and associated cases easily showed what I showed in my essay: Corporations could effortlessly have been excluded from the amendment's equal protection clause, by varying “person” to “natural person” (just as, I added, the unborn could effortlessly have been excluded by adding to “any person” the words “wherever born”).
This long single paragraph of Marshall's judgment now approaches its conclusion (using, as always, “particular case” and “the case” to mean the particular kind of case represented by private chartered charitable corporations):
The case being within the words of the rule, must be within its operation likewise, unless there be something within the literal construction so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the constitution in making it an exception.
The Constitution's words, he went on, “in their plain import comprehend this contract”—he means their plain meaning to persons learned in the law—and “There is no expression in the constitution, no sentiment delivered by its contemporaneous expounders, which would justify us in making” this class of contracts an exception to Art. 1(10).
That is essentially the argument my essay made for identifying the true rule in the amendment. Take the original public meaning of its key term “any person.” Don't be distracted by “what everyone knows” about the amendment's purpose and intent—the primary motivations of those who wrote or ratified it. Don't be distracted by the decades during which—like the position of chartered colleges and the contracts clause between 1789 and 1819—the position of the unborn and the equal protection clause was never raised, and if raised and settled according to law, would be—as Justice Bradley remarked in 1878 about the 1819 decision—“a surprise to many statesmen and jurists of the country,” not because they had regarded the unborn as non-persons but because they regarded the amendment as (racial oppression aside) governing only new state laws reducing rights, not the whole body of a state's laws.
The irony is this. In the late 1960s some state legislatures tentatively, and a few courts radically, began stripping the unborn of legal protections they had enjoyed under common law and then more adequately under the nineteenth-century statutory reforms. And at the same time, Fourteenth Amendment doctrine had become available to scrutinize not only (as in its old, distracted perspective) new legislation or state action but also (in the new, undistracted perspective) the rest of the state's law. So the doctrine's practical relevance to the unborn was now evident on either perspective. And in December 1970, a three-judge federal District Court majority robustly held the unborn entitled to what it called compendiously “the constitutional protections found in the Fifth and Fourteenth Amendments”: Steinberg v. Brown. Thus, after sleeping for 102 years, and almost all those years unneeded, constitutional equal protection for unborn persons awakened.
Only to be annihilated 25 months later.
Roe's grounds for this remarkable execution were all failures, as my essay showed. One trivial but telling failure I did not mention: Having cited Steinberg v. Brown in its list of recent decisions, the Court's opinion suavely banked (and carefully pin-cited) counsel's utterly erroneous concession, in oral argument, that “no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.” As my present response to Whelan has incidentally shown, Roe's failures also involved failing the test for constitutional interpretation—guided by original “plain meaning”—that was articulated and applied in Dartmouth College to demonstrate that a provision's (a rule's) legal impact, based on the original public meaning of its terms, might be authentic yet both unregarded and unapplied for decades.
Whelan has a second big objection: Any recognition that the unborn are persons under the equal protection clause would entail an “unprecedented and unworkable role for the Supreme Court,” which would have to “order [state officials] to enact particular criminal laws or to undertake criminal prosecutions.”
This seems to me quite mistaken.
Yes, on the day after a Supreme Court recognition of Fourteenth Amendment equal protection for the unborn, the situation would share a basic feature with the situation the day after Dartmouth College v. Woodward or again the day after Brown v. Board. Nobody would know how all of the legal actors and other parties would respond and, thus, where the legal and policy equilibrium would finally come to rest (and when). In 1819, states wanting to reassert some sort of legislative jurisdiction over chartered corporations invented and enacted clever “reservations” to the charters, and the Court would in due course approve these, with reservations and limitations. Obviously, the desegregation declared constitutionally necessary in May 1954 was vastly more complex and more fraught: no need to trace its course, or to repent of the ruling in Brown.
I will bow to Ed Whelan's constitutional learning, but my assumption is simple: The Court cannot order legislatures to enact laws; and it cannot order prosecutors to prosecute.
Nor would it have to. The most immediate, formal legal implication of the decision we are hypothesizing would be this: State laws against homicide would in principle apply to killing the unborn by abortion. (Do not forget that those laws all include provisions about what the law calls justifiable homicide and excusable homicide.) A majority of states already have laws tailor-made for “feticide,” as Gerard Bradley (as my essay recalled) has been tirelessly pointing out. Where such laws (or other aspects of a state's homicide laws generally) have exceptions (or gerrymandered scopes) to accommodate Roe, these exceptions might, in whole or part, become inoperative without further enactment. (Further enactments purporting to affirmatively scale back protection for the unborn would be struck down.) In no state would there be a sheer vacuum of relevant and applicable law.
Any Supreme Court constitutional decision, whether or not accompanied by an injunction, has an immediate impact: All courts are henceforth required to give invalidated law no effect. So the fundamental decision striking down Roe and Casey on equal protection grounds would have practical teeth, immediately. If, for instance, a pro-life prosecutor sought to prosecute the abortionist, courts would have to allow the prosecution, and could not enjoin or invalidate it. All unremarkable.
Many states would wish to legislate promptly to move killing the unborn by abortion into a special statutory regime. Some would enact a regime falling short of what even easygoing “rational basis” equal protection for the unborn would permit, and a resolute but humanely fair Supreme Court would have to scrutinize and deal with such denials of constitutional rights in its well-tried ways. Absent statutory amendment, such defective regimes, when invalidated expressly or by implication, would revert toward the default position for killing persons: general homicide law. So these states would have every incentive to try harder until they reached a modus vivendi with the constitutional rights of the unborn.
Whatever the tempest, public opinion would not be unaffected, in the medium term, by a foundational Supreme Court statement of what equal protection means for the unborn—as persons of a special situational category, to be sure, but always as much entitled to the amendment's protection as, say, married women, the unpropertied, the “illegitimate” and many other categories of person were eventually adjudged to be. Entitled both by its key term's original public meaning and by their own reality as human.
John Finnis is the Biolchini Family Professor of Law Emeritus at the University of Notre Dame.
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