Are there sufficient reasons for the Court to hold that the unborn are persons within the meaning of the equal protection clause of the Fourteenth Amendment? Edward Whelan continues to doubt it. He also questions whether such a holding would have much legal effect. To these doubts he adds finally the view that the equal protection argument ought not to play much of a part in “pro-life legal strategy.”
Since questions of strategy have not been my concern, I will continue to say nothing about them, save that any strategy about anything should be aligned with the truth; my first and second essays together argue that there are here two truths converging on the same result. (1) The original public meaning of “any person” in the equal protection clause includes the unborn, as began to be judicially acknowledged and enforced almost as soon as intrusive limitations on the meaning of that clause's “deny . . . equal protection” fell away in the 1950s and, coincidentally, the unborn began in the 1960s (for the first time in the United States) to be clearly denied equal protection. (2) That legal-constitutional position, annihilated by Roe v. Wade in a maelstrom of factual error and bad argument, corresponds to the facts about the unborn, and their place in any rationally defensible scheme of justice—a place which, given their situation and circumstances, is not simple but ought not to be denied by simply conferring on those in a position to destroy them the lawful authority to do so.
So I will say a few words about each of the first three parts of Whelan's essay.
Whelan, I am sure with good intent, begins with a misstep. He refers, as if it were my position, to “the incomplete (only post-quickening) protection that common law provided the unborn,” and to the common law “allowing abortion between conception and quickening.” But both my essays stress that that is (or is way too close to) the false Roe claim, derived from Cyril Means's now long-exploded history, that there was a common law legal liberty to abort before “quickening.” In truth, abortion at any stage of gestation was seriously unlawful under common law even in those jurisdictions that treated pre-quickening abortion as not indictable. I hope that Chief Justice Shaw's ruling in 1845 will be taken to heart; I introduced and quoted it in my first essay:
Chief Justice Shaw of Massachusetts stated the position plainly in 1845: Yes, abortion is not indictable at common law until quickening. But because, “to many purposes, in reference to civil rights, an infant in ventre sa mere is regarded as a person in being: 1 Blackstone Com. 129” [emph. added], any attempt to induce an abortion on a consenting woman even prior to quickening is an act done “without any lawful purpose,” and so, if it happens to result in her death, it is murder—even though intended to help her and she fully consented to the risk.
Such unlawfulness, equating abortion to felony when it results in the death of the mother who solicited it, afforded to the pre-quickening unborn a level of protection very real though, as I put it, “relatively weak.” Alerted to this state of the common law, the Massachusetts legislature immediately made pre-quickening abortion an indictable offense.
Whelan's main point in part I is that my citation of cases from the 1880s does not explain away the absence of appeals to the amendment by pro-life abortion law reformers 15–20 years earlier, at or soon after the amendment's ratification. I agree that further research on that period is very desirable. But Whelan's references to the 1880s do not do justice to the cases I cited from the early 1870s, evidencing the attitudes not merely of judges but of everyone—passionate litigants, for example, who battled discrimination against women by arguing all the way up to the Supreme Court, and who appealed all the time to the Fourteenth Amendment's first sentence but never to its fourth sentence (equal protection). That absence of appeal to equal protection is inexplicable save on the basis of what my second essay called “assumptions very widespread if not universal since the amendment was first mooted,” assumptions that even more firmly would block appeals to equal protection by legislators wanting to extend further and more direct and deterrent protection to the unborn. These blocking assumptions, when articulated by the courts, proved to concern not the meaning of “any person” but the import of the phrase “deny . . . the equal protection of the laws.”
Whelan worries about the reference to “persons” in section 2 of the Fourteenth Amendment, concerning censuses for apportionment. He does not attend to the point of my first essay's discussion of this: The meaning of the term was fixed by convention, particularly because what was under consideration was not someone's life, liberty, property, or protection, but simply enumeration. There is no need to find any policy reason for excluding corporations from a census: They just are not persons in the sense of “How many persons are in this state rather than in that state?” (The same goes for the unborn, I think, but slightly less certainly, since they are natural persons. But though persons for the purposes of status and rights, they doubtless are excluded from section 2 by convention/custom and context: For they are mostly invisible, and information about them serves no purpose useful enough to make it worth trying to overcome the invisibility.)
The policy reason that Whelan constructs out of Justice Field's theory—that (per Field) we look straight through the corporation to its human members and so (per Whelan) we would be “double counting” if we included corporations in the census—hardly applies to out-of-state corporations doing business in the state, and yet afforded Fourteenth Amendment protections there. But no matter: No such ingenious reason is needed (nor, I am confident, was it in mind). As for Field's corporate-veil-piercing theory used in Pembina, the Supreme Court toyed with it for a couple of decades but threw it over forever in 1910 in Southern Railway v. Greene. To recognize corporations as included among persons for equal protection, it was and remains enough that the framers used “any person” in a legal culture in which artificial persons appear alongside natural persons in the law's fundamental building blocks—witness Blackstone (who, incidentally, conveys no trace of Field's theory). They knew that their language would be taken to include corporations unless either the context (as in section 2) or some inserted qualifier such as “born” or “natural” worked to exclude them.
I said that if the Court declared the unborn to be persons for equal protection, “state laws against homicide would in principle apply to killing the unborn by abortion.” Whelan says he doesn't see why:
The common law treated homicide by abortion separately from homicide by murder, with the latter applying only to persons who had been born alive. In turn, the state statutes that superseded the common law also treated abortion and murder separately, so that a state’s general laws against homicide would not, without more, be understood to apply against abortion.
His first sentence concedes that under common law, abortion was a form of homicide. And as we will see in a moment, so do the standard Penal Codes that everywhere have replaced the common law. In both regimes the existence, alongside murder, of a distinct “great misprision” (common law, per Blackstone) or statutory offense of abortion means that as a matter of elementary contextual interpretation, the general provisions against other forms of homicide will not apply to abortion while there is a valid statutory treatment of the special offense of abortion.
To see what I had in mind, consider first the example Whelan selects: California. California's Penal Code section 187 provides that “(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” So this is a state in which homicide law applies in principle to killing the unborn by abortion. But then section 187 goes on to say that (b) it “does not apply to any person who commits an act that results in the death of a fetus” if either (i) “the act was solicited, aided, abetted, or consented to by the mother of the fetus,” or (ii) the act complied with California's Therapeutic Abortion Act, which forbids the state from denying or interfering with “a woman’s right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman”; after viability, abortion by a licensed abortionist is “unauthorized” only if it is “established” both that he knew the child (“fetus”) was viable and that in his judgment “continuation of the pregnancy posed no risk to life or health of the pregnant woman.”
Obviously, both (i) and (ii) are manifest denials of equal protection—Roe itself says so—and would, as a routine consequence of acknowledged unborn Fourteenth Amendment personhood, be struck down expressly or by implication, and cease to be part of the law of California. Thus section 187(a) would operate as the default law, making abortion murder except where section 187(b)'s third exception (still in the Penal Code as a left-over from California's pre-1963 law) applies: (iii) the termination of pregnancy was done “by a holder of a physician's and surgeon's certificate . . . in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.”
It is to be expected that California would promptly enact some moderated substitute for the invalidated (i) and (ii). But to avoid being itself struck down, the new legislation would have to move well away from California's present Roe-Casey abortion regulation and bring itself under the principles of fairness that regulate conflicts with the vital interests of persons who, though differently situated, are each entitled to the constitutional-standard equal protection that Roe defined as incompatible with the kind of laws that it itself authorized.
Whelan instances New York as prime example of a state that, unlike California, lacks an existing “feticide” law. So let us see how my account would apply there. NY Penal Law, as amended in 2018 to strip out remaining references in section 125.00 to “abortion” and to the “unborn child,” says in that section: “Homicide means conduct which causes the death of a person under circumstances constituting murder or. . . . ” Section 125.05 says that “‘person,' when referring to the victim of a homicide, means a human being who has been born and is alive.” Then section 125.25 defines second-degree murder as causing the “death of a person” with “intent to cause the death of” that person or “another person.” Abortion is now dealt with exclusively in the state's Public Health Law, and the law is substantially similar to California's.
Equal protection entails (as Roe conceded) that these NY Public Health Law provisions would fall, just like California's, and therefore that Penal Law section 125.05—since it operates quite bluntly to deny to unborn persons the protections they would have as born persons, say ten seconds later—would expressly or by implication be declared inoperative. Thus the default position would be that most abortions would be murder. New York, if dissatisfied with the applicability here of the defenses of excuse and justification available to anyone charged with murder, would thus be strongly incentivized to enact new legislation making a fair accommodation between the rights of mother and child, recognizing both their basic and constitutional recognized equality as persons and their significantly differing situations and legitimate interests.
Whelan says that “for most states, their general homicide law (whether or not expanded to cover a class of feticides) has nothing to do with abortion.” His own example, California, shows in its section 187(a)—“ . . . unlawful killing of a human being, or a fetus . . . ”—that he is mistaken; New York's similarly plainly showed the same in its section 125.00 until 2018/9, and continues to show it implicitly (backhandedly) by section 125.05. When Whelan says he doesn't “see how the Supreme Court would have the authority to declare that a state’s general homicide law applies to abortion,” I say that the four or five paragraphs above show how a Supreme Court recognition and declaration that the unborn are constitutionally entitled to equal protection would certainly have the immediate legal effect of making state homicide law apply to most abortions of the kind now done, a constitutional effect deliverable by the Court in its routine ways.
Whelan postulates states legislating to make abortion providers' certificates of risk of death or serious bodily harm conclusive evidence of a justification (rooted in harm to the mother), or to make criminal abortion subject only to a derisory fine. All that need be said about these examples is that they are manifest instances of denial of equal protection. Distinctions among the unborn, and between the unborn and the newly born, in matters of life and death—like distinctions between the newly born and the toddler or you and me in such matters—are and would be subject to heightened scrutiny. Some distinctions would survive an evenhanded and careful scrutiny. Others, like Whelan's examples, would not (with the result that this legislative attempt to escape from the default-to-murder would fail and the legislature would need to consider trying again, more fairly). The whole situation we are discussing would be new, but would essentially amount to no more and no less than a new field for applying routine procedures of litigious debate and resolution of disputed questions about equality of persons.
Finally, he asks what the Supreme Court can do about prosecutors who announce that they will never prosecute abortion. These too are manifest state deniers of equal protection, and I would be surprised if the practices and techniques developed by the federal judiciary during the decades following Brown v. Board proved altogether impotent in the face of this sort of blatant lawlessness. But ultimately these are all matters of political will, not questions about what initiatives the Supreme Court can take to secure law and order. Enforcement of all kinds of acknowledged constitutional rights faces hurdles and limitations of institutional or procedural capacity in one context or another. No one institution has the single-handed responsibility of ensuring that the nation fully and efficaciously keeps faith with its Constitution's guarantees.
While Whelan and I have been discussing these matters of law and adjudication, some voices can be heard declaring that instituting constitutional protection for the unborn would be an authoritarian overriding of the will of the people. But as my first essay indicated more than once, it is for the people to decide whether to amend the Fourteenth Amendment. That decision process would be a raw debate about the truth of the nature and dignity of persons: persons born, persons on the way to birth, and the persons who brought them into being. Meantime, it will sooner or later be for the Court to say, more truthfully than Roe, what the people who ratified the Fourteenth Amendment committed the nation to by choosing to write and adopt what they did about persons, the main subject of the great book from which they or most of their colleagues began learning their law.
John Finnis is the Biolchini Family Professor of Law Emeritus at the University of Notre Dame.
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