Abortion is Already Illegal

Established wisdom tells us that even if the Supreme Court reversed course on abortion, each state would be allowed to decide whether or not it should be permitted. But is that really true? Does the Constitution really have nothing to say about whether the child in the womb should be protected? For the first time in more than a decade, that question is now squarely before the high court.

During initial arguments for Roe v. Wade, Texas urged that “the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment.” That amendment begins: “No State shall . . . 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 Supreme Court rejected Texas’s argument and ruled “that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” But Harry Blackmun, who wrote the majority opinion, nevertheless made an important admission. If prenatal “personhood is established,” he wrote, the case for abortion “collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.”

In April, the famed scholar of jurisprudence John Finnis published an article arguing that the Fourteenth Amendment prohibits states from allowing abortion. In years past, I and other lawyers, such as Michael Stokes Paulsen, have made similar arguments based upon the original meaning of the Fourteenth Amendment, which was ratified after the Civil War to ensure that no human being would be denied fundamental rights guaranteed by the Constitution. But the timing of Finnis’s article ensured controversy. With the confirmation of Justice Amy Coney Barrett and an ostensible conservative majority of six on the court, the question of how Roe should be reversed had assumed greater urgency. All eyes looked to the court, wondering whether it would take up the first direct challenge to Roe v. Wade and Casey v. Planned Parenthood in many years: Dobbs v. Jackson Women’s Health Organization, a case involving Mississippi’s ban on abortions after fifteen weeks of pregnancy. The Supreme Court granted review in Dobbs shortly after publication of Finnis’s article, on May 17.

Fissures have emerged in the landscape of legal conservatism. How much vitality does originalism, the theory that judges should ascertain and apply the original public meaning of the constitutional text, possess? Some have encouraged abandoning originalism altogether in favor of “common-good constitutionalism,” which would interpret the Constitution’s “majestic generalities,” as Justice Brennan once put it, in a manner consistent with the common good, as that concept has been explicated in the classical legal tradition. Others, particularly younger conservative lawyers, have criticized the alleged tendency of originalism to elevate form over substance, draining legal texts of moral content and import through value-neutral proceduralism. These younger lawyers, rather than abandoning originalism altogether, have attempted to synthesize it with common-good constitutionalism.

Despite these ongoing arguments, the truculent reaction to Finnis’s article (and some commentary following the Supreme Court’s decision to grant review in Dobbs)left me somewhat puzzled. Both Finnis and I have made arguments for preborn personhood that all originalists should be able to support, based simply upon the original public meaning of the Fourteenth Amendment. Why did the presentation of historical evidence give rise to such widespread recriminations? And why do so many legal conservatives continue to insist that reversing Roe will necessarily send the question of abortion to the states?

The structure of the originalist argument for preborn personhood is simple. The Fourteenth Amendment’s use of the word “person” guarantees due process and equal protection to all members of the human species within the Constitution’s juridical reach. The preborn are members of the human species from the moment of fertilization. Therefore, the amendment protects the preborn. If one concedes the minor premise (viz., preborn humans are members of the human species), then all that must be demonstrated is that the term “person,” in its original public meaning at the time of the Fourteenth Amendment’s adoption, applied to all members of the human species.

When the Fourteenth Amendment was ratified in 1868, the term “person”—in both common and legal usage—was largely interchangeable with “human being.” According to one dictionary of the era, the term person “applied alike to a man, woman, or child.” Another defined “person” in legal usage as “a human being, considered as the subject of rights, as distinguished from a thing.” These definitions were perfectly consistent with Blackstone, for whom there was no distinction between biological human life and legal personhood. The portion of his treatise on “The Rights of Persons” declared that “life is . . . a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” As I shall explain in greater detail below, this mention of “stirring” was intended to protect prenatal life as soon as it could be discerned, not to exclude human life from protection prior to that point. It is thus reasonable to derive from Blackstone and others the principle that if human life could be shown to exist, legal personhood existed also.

When the framers of the Fourteenth Amendment drafted its first sentence—“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States”—they did not define the scope of the term “persons.” Rather, they drew upon the existing public meaning of that term, which was understood to include all human beings. The drafters’ use of the phrases “born or naturalized” and “subject to the jurisdiction thereof” served to narrow that broader class of persons to define its subset, citizens. Thus, while only American citizens may enjoy the “privileges or immunities” of citizenship, all persons are entitled to due process of law and the equal protection of the laws.

Of course, whether states historically believed the preborn were members of the human species is not dispositive, so long as they believed all human beings were entitled to due process and equal protection under the Fourteenth Amendment. Just as “freedom of speech” protects films and internet communication under the original meaning—even though those technologies were not invented at the time of the First Amendment’s adoption—“person” protects every member of the human species, regardless of whether individuals were recognized as members of the human family at the time of the Fourteenth Amendment’s adoption.

But as it turns out, the states did maintain that the preborn were living members of the human family at the time of the Fourteenth Amendment’s adoption. The passage of strict anti-abortion measures in the mid-nineteenth century was the natural development of a long common-law history proscribing abortion. In the thirteenth century, the common law codified abortion as homicide as soon as the child came to life (animation) and assumed human form (formation), which supposedly occurred forty to eighty days after conception. The “formed and animated” standard was later cited by Lord Coke, who described it as being “quick with childe” without changing the substance of the rule.

In the eighteenth century, Coke’s description “quick with childe,” the point at which the child is first able to move (then considered to be the beginning of existence), became synonymous with “quickening,” the point at which the mother first feels fetal movement. The Roe court made much of the quickening rule in its rush to dismiss the personhood of the preborn, but failed to grasp that while the rule served an evidentiary role in criminal law, it did not establish a principle about the value of human life prior to perceptible movement in the womb.

The “quickening” distinction survived in common law until emergent medical science discovered that human life began at fertilization, allowing medical examiners to prove prenatal life and cause of death due to abortion with greater certainty. After this discovery in the early nineteenth century, British courts instructed jurors that “quick with child” (which had earlier meant “formed and animated”) now meant “from the moment of conception.” When determining whether to grant temporary reprieve from execution for a pregnant woman, for example, Regina v. Wycherley reinterpreted common law to reflect new scientific fact in 1838.

This revision of the common law to conform to the basic principle from which it began—that human life, where it exists, must be protected—informed the meaning of the term “person” in the United States at the time of the Fourteenth Amendment’s adoption. In the mid-nineteenth century, American courts began to discard the obsolete “quickening” standard in favor of protecting the unborn from the time of fertilization. The Pennsylvania Supreme Court’s Mills v. Commonwealth ruling in 1850 is indicative of the national mood regarding abortion in that era. It wrote, “the moment the womb is instinct with embryo life, and gestation has begun, the crime may be perpetrated. . . . There was therefore a crime at common law.” The Supreme Judicial Court of Maine similarly upheld a statute repudiating the quickening standard in its 1851 Smith v. State decision.

Meanwhile, state legislatures took action to prohibit abortion from the time of fertilization. At the end of 1849, eighteen of the thirty states had legally proscribed abortion. By the end of 1864, that number grew to twenty-seven of the thirty-six states. When the Fourteenth Amendment was adopted in 1868, the states widely recognized children in utero as persons: at the close of that year, it was thirty out of thirty-seven, plus six territories. Of those thirty states in 1868, twenty-seven punished abortion irrespective of quickening and twenty applied the same punishment before and after quickening. Twenty-three states and six territories referred to the fetus as a “child” in their statutes proscribing abortion. At least twenty-eight jurisdictions labeled abortion as an “offense against the person” or an equivalent criminal classification.

Thus, by the time of the Fourteenth Amendment’s adoption, nearly every state prohibited abortion in its criminal code, and most of those statutes were classified as “offenses against the person.” Is it reasonable to assume that state legislatures would have used this terminology and referred to the fetus as a “child” unless they believed that preborn child to be a “person”?

The legislatures that in short sequence adopted anti-abortion statutes and ratified the Fourteenth Amendment saw no conflict between their actions to defend prenatal life and their Fourteenth Amendment obligations. Indeed, they may have even viewed such legislation as required by the Amendment, insofar as the state ratifiers thought the Amendment required extending the equal protection of the laws to every human being.

The Amendment’s framers certainly expected that it would protect every human being. Senator Jacob Howard, who sponsored the Amendment in the Senate, declared the amendment’s purpose to “disable a state from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty and property without due process.” Even the lowest and “most despised of the [human] race” were guaranteed equal protection. Thaddeus Stevens called the amendment “a superstructure of perfect equality of every human being before the law; of impartial protection to everyone in whose breast God had placed an immortal soul.” James Brown, a Pennsylvania congressman, posed the following rhetorical question: “Does the term ‘person’ carry with it anything further than a simple allusion to the existence of the individual?”

Though the drafters of the Fourteenth Amendment never addressed the issue of abortion, the general consensus of 1868 was that a child in utero was human and therefore included within common humanity. No doubt they were aware of the long-established precedent of United States v. Palmer, in which John Marshall had acknowledged that the terms “person or persons” were broad enough to include “every human being” and “the whole human race.” After all, the authors of the Amendment designed it to protect all biological human beings, regardless of their origin or circumstance. As Justice Hugo Black later put it, “the history of the amendment proves that the people were told that its purpose was to protect weak and helpless human beings.”

The Fourteenth Amendment was to be a new birth of freedom for all human beings. Given the original public meaning of the term “person,” the contemporaneous anti-abortion statutes purposed to protect prenatal life, and the public explanations given by the framers of the Fourteenth Amendment as to its scope of meaning, the evidence suggests that the preborn members of the human family are protected by the amendment. For that reason, state laws permissive of abortion violate the Amendment’s equal protection guarantee.

This originalist conclusion is perfectly consistent with common-good constitutionalism. Law orders human relationships to promote the welfare of society. But as Justinian’s Digest reminds us, “it is useless to know the law without knowing the persons for whose sake it was established.” Positive law concerning the meaning of “persons” should conform as closely as possible to reality (the nature of what human beings truly are) and justice (the duties that are owed to them). Happily, the Fourteenth Amendment’s guarantees of due process and equal protection do just that.

Yet in spite of the weight of historical evidence favoring constitutional personhood, some originalists remain unconvinced. Critics have, for example, pointed out that the framers and ratifiers apparently lacked any specific intent to address abortion. In the absence of such explicit evidence, these critics would encourage judges to punt the question to the states and defer to whatever result the democratic process yields. But such deference to democratic majorities is not self-justifying, nor is it dictated by the theory of originalism itself; it is purely a normative preference about adjudication in close cases. And this is where common-good originalism—the attempted synthesis between common-good constitutionalism and originalism—might serve some useful purpose. If the interpretive question is actually a close one (as even critics will admit), why shouldn’t a judge adopt a default rule of construction in favor of natural law, natural rights, and the common good? Critics of constitutional personhood might reply that democratic decision making itself serves the common good, and that it is preferable as a matter of prudence or institutional competence to allow that process to play out in the states. But if that is the response, then the debate has progressed well beyond any argument over original meaning and has landed firmly in the political realm. 

In that realm, Lincoln teaches us that a democratic majority’s authority is derived from nothing other than the equal natural rights of the persons who constitute it, so that a majority cannot ignore and disparage the humanity of others without vitiating its own legitimacy. No democratic process can legitimately deny those inalienable rights with which the Creator has endowed His children, the foremost of which is the right to life. So too Saint John Paul II, who observed that “authentic democracy is possible only . . . on the basis of a correct conception of the human person.” A value-neutral majoritarianism that ignores the rights of persons, he wrote, “easily turns into open or thinly disguised totalitarianism.”

As the Supreme Court wrestles with how to resolve Dobbs v. Jackson Women’s Health Organization, it would do well to remember the words of Justice Jackson in one of his greatest opinions: “One’s right to life . . . may not be submitted to a vote; it depends on the outcome of no elections.” The foundational error of Roe was not that it short-circuited the democratic process, but that it denied constitutional personhood to the weakest and most vulnerable among us.

Josh Craddock is an affiliated scholar with the James Wilson Institute and the former editor-in-chief of the Harvard Journal of Law & Public Policy.