Constitutional Persons: An Exchange on Abortion

Readers of First Things should by now be well-acquainted with the heated national debate—in part inspired by these very pages—over the role and legitimacy of the modern Supreme Court, armed with the power of judicial review, in a country that proclaims itself to be self-governing. Under the influence of a progressive jurisprudence the modern Court has issued controversial and innovative rulings on topics ranging from criminal due process to school prayer, rulings that often conflict with both the text and context of the Constitution, and with the history and traditional practices of our nation. But perhaps no issue better illustrates—and indeed magnifies—this conflict than abortion. Roe v. Wade and its progeny not only challenge the legitimacy of the Court, with their highly partisan and tendentious reading of the Constitution, they challenge the legitimacy of the entire government, a government that tolerates, and often even encourages, the mass destruction of those human beings who are most innocent and defenseless. 

It is surprising, therefore, that on this most central constitutional and moral issue a preponderance of pro-life advocates and legal scholars continually misinterpret the Constitution. According to them, a proper reading of the Constitution would reject the concept of a privacy right to abortion, and thus return the nation to the pre- Roe status quo in which the decision of when, whether, and how to regulate abortion was left to the states. In offering this “restoration interpretation,” they ignore or reject the proper interpretation, which would extend the protections of the Fourteenth Amendment to unborn persons. This is what I will call in this essay the “unborn person interpretation.” They continue to do this despite the fact that both the majority in Roe and the appellants to the case conceded that if the personhood of the unborn could be established, “the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.”

To gauge the pervasiveness of the restoration interpretation among life advocates, one need only consult these pages. Forty-five leading pro-life advocates, including Gary Bauer of the Family Research Council, James Dobson of Focus on the Family, Clarke Forsythe of Americans United for Life, Wanda Franz of the National Right to Life Committee, and Ralph Reed of the Christian Coalition, signed a much heralded joint “Statement of Pro-Life Principle and Concern” published in First Things in 1996 in which the primary legal complaint was made that Roe “wounded American democracy” by removing the issue of abortion from “democratic concern.” The statement suggested two legal remedies: first, the Supreme Court could reverse Roe , returning the issue to the states; second, the nation could pass a constitutional amendment that would extend Fifth and Fourteenth Amendment due process protection to unborn persons. The statement does not even hint at the possibility of a Supreme Court ruling that would extend due process and equal protection to unborn persons. The First Things statement seems to reflect the unanimous opinion of those Justices on the Supreme Court who have urged reversing Roe , not one of whom has attempted to make or even respond in their opinions to the unborn person interpretation.

However well-intentioned, the arguments of the restoration advocates are usually grounded in an epistemological skepticism that is alien to normal constitutional interpretation and harmful to the political morality on which free government is based. While I don’t object to a constitutional amendment that would extend special protection to unborn persons—especially since such an amendment would presumably lodge protection for the unborn beyond the discretion of partisan courts, and also dispose of any potential problems with respect to state action—such an amendment is constitutionally superfluous. The issue of protecting the basic rights of persons from hostile or indifferent state governments was constitutionally resolved almost one hundred and fifty years ago in the Fourteenth Amendment, purchased with the blood of hundreds of thousands of American lives in the awful crucible of the Civil War. The constitutional debate over abortion, then, is ultimately a rehearsal of the very same questions that shook the nation during the Civil War. 

To see why the restoration argument, while certainly more honest and legally plausible than the opinion in Roe v. Wade , is both constitutionally flawed and politically problematic, we must first consider the arguments that have been made on its behalf. The core of the restoration argument consists of an attack on the contention that the right of a woman to terminate her pregnancy is a personal privacy right protected by the Constitution. Such a right is—to use the words of the Court—neither “implicit in the concept of ordered liberty,” nor is it “a principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental.” To the contrary, there is a strong historical and legal tradition in America condemning and prohibiting abortion as a violation of the rights of the unborn. Moreover, the alleged privacy protected in Roe differs in kind from the other privacy precedents insofar as the right necessarily affects the interests of another human life, the fetus, and insofar as the abortion procedure has a decidedly public expression.

So far as it goes, this is an acceptable argument. But it leaves out of the equation the paramount question of the status of the unborn child. The Justices write as if this question can be ignored or constitutes merely a “value judgment” about which reasonable people can disagree. Justice Antonin Scalia himself explicitly asserts this latter position in his dissenting opinion to the Casey decision: “There is of course no way to determine that [i.e., whether the human fetus is a human life] as a legal matter; it is in fact a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so.” But if the status of the unborn child is merely a value judgment, then there is at least a plausible argument that the states have no right prohibiting abortion, especially when one considers the considerable burden an unexpected, unwanted, or dangerous pregnancy can place on a woman. Indeed, Justice Scalia’s arguments have a frightening moral and epistemological agnosticism at their center.

The states may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. As the Court acknowledges, “Where reasonable people can disagree the government can adopt one position or the other.”

By making the determination of human life a value judgment, Justice Scalia forecloses the possibility that any scientific proof or rational demonstration can establish that an unborn child is a human being. Indeed, he ultimately forecloses the possibility that there can be any rational discussion of the matter at all, insofar as values by their very nature are subjectively determined. Taken to an extreme, as Justice Scalia’s legal positivism in this matter seems to do, democracy becomes the simple exercise whereby the powerful define for themselves their “own concept of existence, of meaning, of the universe, and the mystery of life,” to use the famous words of the majority opinion in the Casey decision. In such a universe, constitutional government is superfluous. One is strongly reminded of Lincoln’s arguments with respect to slavery: “If [the Negro] is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the Negro is a man, is it not to that extent a total destruction of self-government to say that he too shall not govern himself ?”

It cannot be too strongly emphasized that whether or not an unborn child is a human being is the critical question in this debate, and the question was definitively answered decades ago. Whatever might be said for an earlier time, today there can be no scientific disagreement as to the biological beginning of human life. Embryology, fetology, and medical science all attest to the basic facts of human growth and development, and medical textbooks for decades have declared that distinct and individual human life begins at conception. Contrary to Justice Scalia’s assertion, this is not a value question any more than that of whether an acorn is an oak tree. It is indeed both telling and disturbing that while self-proclaimed postmodernist Stanley Fish can concede that the scientific evidence is clearly on the side of the pro-life movement, Justice Scalia continues to insist that this is a value judgment. The value decision only concerns whether we will protect all persons, or only those we have judged worthy of protection through the democratic process.

Perhaps even more disturbing is Justice Scalia’s moral agnosticism, revealed in his pragmatic arguments against Roe . He rightly objects with scorn to the plea by the majority in Casey to the “contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” as if the Court did not create the national controversy in the first place with its controversial ruling. And he quotes Lincoln’s warning in his First Inaugural Address against deferring decisions of policy “upon vital questions affecting the whole people” to the Supreme Court, and thus resigning the power of self-government. Of course, Lincoln was referring to the ignominious Dred Scott decision in which the Court ruled not only that blacks were ineligible for national citizenship and thus had no legal access to federal courts, but also that slaves constituted property protected by the Fifth Amendment due process clause against congressional prohibition of slavery in the territories. It was in part in order to overturn this ruling that Lincoln pressed for, Congress passed, and the nation ratified the Thirteenth and Fourteenth Amendments to the Constitution extending due process and equal protection rights to all persons under United States jurisdiction.

According to Justice Scalia, the restoration argument would return the issue of abortion to the states, and thus remove it as a national issue. “As with many other issues, the division of sentiment within each state was not as closely balanced as it was among the population of the nation as a whole, meaning not only that more people would be satisfied with the results of state by state resolution, but also that those results would be more stable.”

Stable for whom? Certainly not unborn children in states with permissive abortion laws. Couldn’t Justice Scalia have added to these dicta some condemnation of the practice of abortion, despite his perceived constitutional obligations? One wonders whether restoration is Scalia’s preference, and not merely his constitutional interpretation. In any case, the irony of Justice Scalia’s position should not be lost: his argument sounds disturbingly similar to the “popular sovereignty” position of Stephen Douglas, Abraham Lincoln’s bitter adversary, in both its professed agnosticism about the moral issue of abortion, as well as its proposed solution to the conflict. With Lincoln, we must see this argument for what it is: a dangerous threat to self-government insofar as it undermines the very public opinion that makes self-government possible, the belief in the transcendent dignity of all human beings from the moment of conception to natural death. Any attempt to define human worth or value with a smaller category than the general field of human beings, as Lincoln rightly saw, is necessarily arbitrary and sets forth a principle that itself undermines the principle foundation for self-government.

Not all advocates of the restoration argument, however, express Scalia’s epistemological and moral skepticism so boldly. Christopher Wolfe, for example, attempts to make a similar argument while at the same time affirming the moral evil of abortion. His argument runs some of the same dangers as that of Scalia however, in that while recognizing the strength of many of the arguments for absolute prohibition of abortion, Wolfe concedes that, “given the fact that many people did and do in fact doubt (however wrongly, in fact) whether a human person exists from the time of human conception . . . the Constitution lacks the kind of clarity that would be necessary for a judge to strike down a law permitting abortion.” So Wolfe’s position, like Scalia’s, is based ultimately upon conceding that the status of unborn children is open to doubt.

But we must ask: Why allow anti-life advocates to continue this deceptive argument that the ontological status of an unborn child is open to doubt, that it is based upon religion, or values, or some other subjective standard, and that it is a point over which reasonable people can disagree? Why does Professor Wolfe leave open to doubt what is obvious to so skeptical a man as Stanley Fish? We must be clear: if the ontological status of the unborn child is open to question, then objective knowledge itself is open to question. So long as life advocates concede that this is an open question the battle over abortion, and perhaps democracy itself, is lost.

To be sure, as the End of Democracy? symposium in First Things (November 1996) revealed, there is ample reason for reticence about the unborn person interpretation. The last half-century of “living constitutionalism” and its subsequent judicial license has left a badly scarred Constitution in its wake, severely undermining the delicate balance of powers that was part of the Founders’ original design. The “least dangerous branch” of Federalist 78 has arguably become the “most dangerous branch” of Brutus 15. As many liberals are beginning to discover, the surrender of self-government to the Supreme Court is a double-edged sword that can cut both ways. We must be cautious, therefore, about seeking unwarranted readings of our privileged moral principles into the Constitution. For the purposes of this essay I will assume without argument that the proper reading of the Constitution is a textualist reading as that term is used by Justice Scalia in his book A Matter of Interpretation. A textualist reading assumes that the primary guidance for interpreting the Constitution comes from text and context. As Justice Scalia describes it, “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.” This principle excludes both “living Constitution” jurisprudence as well as “natural law” jurisprudence. According to this textualist jurisprudence, it seems to me, the unborn person reading is the most honest and legitimate, despite Justice Scalia’s claims to the contrary.

The simple syllogism for my argument can be stated as follows. The word “person” in the due process and equal protection clauses of the Fourteenth Amendment includes all human beings. Unborn children are human beings. Therefore, the due process and equal protection clauses of the Fourteenth Amendment protect unborn children. To refute this syllogism, advocates of the restoration interpretation must either deny the major premise, that the legal person of the Fourteenth Amendment includes all human beings, or deny the minor premise, that an unborn child is a human being. Because virtually none of the life advocates are willing to deny the minor premise, the main point of contention must be the major premise.

So, do the due process and equal protection clauses of the Fourteenth Amendment include all human beings? Based on the text of the Constitution, its repeated construction prior to Roe , explicit statements of the framers of the Fourteenth Amendment, and valid inferences from state practices toward abortion, we can answer this question in the affirmative.

The first section of the Fourteenth Amendment states: “Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The problem is that the Constitution never defines the word “person.” Justice Scalia, among others, rightly looks to context for guidance on the meaning of this term, and he finds no evidence that the word was intended to include unborn persons. In a speech delivered at Notre Dame in 1997 he pointed out that none of the references to “person” in the Constitution have prenatal application. For example, the second section of the Fourteenth Amendment states that “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” Because there is no evidence that the framers contemplated counting unborn persons for purposes of apportioning representatives, Scalia argues, they must not have understood “person” to include “unborn person.”

There are serious flaws in this argument, flaws that are attached to any contextual attempt to understand the meaning of the word “person” in the Constitution for due process purposes. The reason for this is that apart from the Fifth and Fourteenth Amendments every reference to person is context dependent—that is, each reference is intended to accomplish a particular limited purpose. Take Justice Scalia’s example. The means for determining numbers of persons in each state is regulated by the second section of the first Article of the Constitution. According to this passage, “actual enumeration” shall be made by Congress every ten years “in such manner as they shall by law direct.” In other words, Congress can determine by statute those who should be counted in the census for purposes of allocating representatives. Surely Congress could constitutionally include unborn persons in the census count, and with good reason, as the count might be more accurate. On the other hand, this might be an impractical enterprise. A clearer example illustrating this contextual problem is the eligibility requirement for holding office in the House of Representatives. The Constitution states, “No person shall be a representative who shall not have attained to the age of twenty-five years.” Does this mean that no persons under the age of twenty-five are protected by the due process clause? Of course not.

It is quite clear from the history of the Amendment that its framers did not intend to give Congress the power to determine personhood for due process and equal protection purposes. An early draft of the Amendment stated: “Congress shall have the power to make all laws which shall be necessary and proper to secure the citizens of each state all privileges and immunities of citizens in the several states, and to all persons in the several states equal protection in the rights of life, liberty, and property.” Several Republicans objected to this language because it would merely “effect a general transfer of sovereignty over civil rights from the states to the federal government, while effectively failing to limit the exercise of state power that had produced the black codes.” Instead, the framers of the Amendment chose to lodge the prohibition in the Amendment itself, while leaving Congress corrective power. The Amendment clearly does not give Congress plenary power over the meaning of the first section of the Fourteenth Amendment. The strong implication of the text and history is that the courts would have a strong hand in enforcing its provisions. Scalia’s interpretation is implausible and would effectively emasculate the Amendment.

Another prevalent and yet erroneous interpretation of the Fourteenth Amendment holds that its provisions are limited exclusively to blacks. This reading is supported by neither the text of the Amendment, the history of its framing, nor its subsequent application. The Amendment was aimed not only at the “black codes” of various states, which sought to effectively reduce freedmen to slavery while technically obeying the provisions of the Thirteenth Amendment, but also at the entire constitutional apparatus that placed the rights of persons at the mercy of oppressive state governments. (Remember, whites that supported blacks in their quest for freedom were also in danger of retaliation.) In other words, the framers were seeking a constitutional remedy for protecting the rights of persons when the states failed to do so. For this reason, they chose to use the term “person” rather than “blacks” as the object of protection in the text of the Constitution.

Abundant evidence from the congressional debates over the Fourteenth Amendment indicates that the framers intended the word “person” to include all human beings. For example, the author of section one of the Fourteenth Amendment, John Bingham, stated that “before that great law the only question to be asked of a creature claiming its protection is this: Is he a man? Every man is entitled to the protection of American law, because its divine spirit of equality declares that all men are created equal.” And Senator Lyman Trumball declared that the Amendment would have the “great object of securing to every human being within the jurisdiction of the Republic equal rights before the law.”

The history of enforcement of the provisions of due process and equal protection clauses supports the argument that the provisions were not intended exclusively for freedmen. Indeed, the vast majority of Fourteenth Amendment due process cases that later came before the Court, even in the late nineteenth century, involved economic issues. The word “person” accordingly has been given a very liberal construction by the Supreme Court to include all human beings, be they minors, prisoners, aliens, enemies of the state, and even corporations. Indeed, apart from Roe , the Court has never once differentiated between “person” and “human being,” nor has it ever excluded a human being from the due process protections of the Fourteenth Amendment. So it is a fair legal inference to say that if it can be demonstrated that an unborn child is a human being, then that child will constitute a “person” for Fourteenth Amendment purposes.

Notice that the minor premise of the syllogism above is only marginally contingent upon historical analysis. The primary issue is ontological, not historical. Just as “the freedom of speech”—to use Justice Scalia’s example in A Matter of Interpretation —includes movies, radio, television, and computers, so the Fourteenth Amendment includes human persons whose personhood was not fully “discovered” when the due process and equal protection clauses of the Amendment were written. In other words, it doesn’t ultimately matter what past people thought about when human life begins, so long as they agreed—as they did—that at whatever point it begins, this is the point at which the protective powers of the state must be introduced. They did not have enough access to the scientific and biological facts of human reproduction and embryology to know for certain when life begins. But in a time of 4D ultrasound technology, when infants can be operated on while still in the womb, there is no room for dispute about the status of the fetus.

One objection to the unborn person interpretation is the lack of precedent to support it. The common law basis of our system embodied in the principle of stare decisis and the just requirements of consistency in applying the law demand a respect for precedent. To this objection I offer two replies. First, there was a federal court precedent for the unborn person reading of Fourteenth Amendment before Roe v. Wade, though this fact was virtually ignored by Justice Harry Blackmun and the Roe Court. In Stenberg v. Brown (1970) a three-judge federal district court upheld an anti-abortion statute, stating that privacy rights “must inevitably fall in conflict with express provisions of the Fifth and Fourteenth Amendments that no person shall be deprived of life without due process of law.” After relating the biological facts of fetal development, the court stated that “those decisions which strike down state abortion statutes by equating contraception and abortion pay no attention to the facts of biology.” “Once new life has commenced,” the court wrote, “the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it.” Yet in commenting on the unborn person argument in Roe , Justice Blackmun wrote that “the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.” He did so despite the fact that he had cited the case just five paragraphs earlier! The failure of both appellees and the Court to treat this case is both unfortunate and inexplicable. Second, while our system is based upon a reasonable and healthy respect for precedent, this has never prevented the Court from revisiting and modifying precedent when the erroneous foundation and unjust results of that precedent become manifest. Such is the case with respect to abortion and the Fourteenth Amendment.

The historical practices of the states both before and during the time the Fourteenth Amendment was ratified can serve as evidence of what the framers of that Amendment thought about its meaning. Clarification of this matter will also help clarify why the unborn person interpretation is different in kind from a “living Constitution” or “natural law” jurisprudence. The principle can be stated simply: the killing of an unborn human being has been universally condemned by Christendom, was a crime at common law, and was made a felony through all stages of pregnancy by the vast majority of the states in the latter half of the nineteenth century. There was virtually no debate about the principle; the only question concerned the facts: When does human life begin? What began as a standard of “quickening,” or the first perception of fetal movement (which, by the way, had nothing to do with “viability”—a term which is ultimately grounded in utilitarian notions of “meaningful life”) eventually became “conception,” as medical science revealed the nature of human reproduction, growth, and development.

Thus, at the urging of the American Medical Association, among others, states began to revise their statutes to accommodate the new scientific knowledge. As Justice William Rehnquist pointed out in his dissent in Roe , “By the time of the adoption of the Fourteenth Amendment in 1868, there were at least thirty-six laws enacted by state or territorial legislatures limiting abortion.” From this he concluded that “there apparently was no question concerning the validity of this provision or of any other state statutes when the Fourteenth Amendment was adopted.” As Justice Scalia himself points out, “By the turn of the nineteenth century virtually every state had a law prohibiting or restricting abortion on its books.” Significantly—and contrary to the assertions of several historians and legal scholars who were relied upon in Roe —abundant evidence indicates that these restrictions on abortion were passed with the primary purpose of protecting unborn children, and not merely to protect the health of the mother.

While this argument appears to provide stronger support to the “restoration argument” than to the “unborn person” argument, the appearance is only superficial. The framers of the Fourteenth Amendment did not intend to supplant the criminal codes of the various states. They merely intended to set conditions to those codes, the enforcement of which would be worked out primarily in litigation and secondarily in congressional enforcement. By the time the Fourteenth Amendment was ratified the states were well on their way toward enforcing its provisions with respect to unborn children. Moreover, other pressing concerns dominated the attention of the time period. Roe was the first case in which the issue of abortion had come directly before the Supreme Court, and it would have been a perfectly appropriate time for the Court to affirm the proper extension of the protections of the Fourteenth Amendment to unborn persons.

Thus, the unborn person interpretation has nothing to do with broadening or narrowing legal concepts to meet ever-evolving standards of morality accessible only to privileged elites. In such cases judges usually broaden or contract the meaning of the legal concept itself, as when they argue, for example, that the right to “liberty” includes an absolute right to engage in behavior once regarded as legitimately subject to state “police power” regulations covering the right to contract, to view obscene materials, or to use contraception. In the argument above, the legal concept—the protection of all human beings—remains unchanged. The only change comes from the clear development in scientific knowledge about when human beings come into existence.

A final consideration goes beyond the scope of this paper, but deserves mention. One could concede the entire argument above and still object that the practical effect of the unborn person interpretation on the protection of unborn children would be minimal due to the “state action” doctrine. According to the extreme formulation of this doctrine, the Fourteenth Amendment only places limits upon state action, and does not reach private action. I will only state here that the narrow reading is not plausible, and is not supported by the continuous reading of that Amendment. Congress is clearly given the power in Section Five of the Fourteenth Amendment to remedy both hostile state action and state failure to secure the constitutionally protected rights of persons. The unborn person reading would make it constitutionally incumbent upon states to secure the basic rights of all persons in their jurisdiction without discrimination, and would enable Congress to pass remedial legislation protecting those same rights in states that fail to do so.

This would be a bold affirmation of the democracy our nation suffered through the agony of the Civil War to achieve, and whose principle is enshrined in the Fourteenth Amendment. If, then, as seems likely to happen in the near future, Congress passes and the President signs a ban on partial-birth abortion, the issue of abortion and the Constitution will again come to the forefront of national attention. We must not let this opportunity pass to boldly challenge the prevailing jurisprudence and i