Published on April 8, 2021
In “Abortion Is Unconstitutional” (April), John Finnis argues that the unborn child is a “person” within the meaning of the due process clause and equal protection clause of the Fourteenth Amendment and, as such, possesses general constitutional protections against being aborted. I set forth my doubts and questions about Finnis’s position in two blog posts, and Finnis has kindly provided a meticulous response in “Unborn Persons: Why Equal Protection Slept 102 Years.” At the risk of straining his and the reader’s patience, I offer this reply.
Let me highlight that the gap between Finnis and me is not especially wide. As I have acknowledged, I believe that Finnis, like Michael Stokes Paulsen (author of “The Plausibility of Personhood”) and Josh Craddock (“Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?”) before him, has deployed the methodology of originalism to make a much stronger case for the constitutional personhood position than I had previously been aware of. I simply do not find his argument nearly as compelling as he does. In particular, I remain skeptical that it provides a sufficient basis for the Court, if and when it overturns Roe v. Wade, to go beyond enabling the states to prohibit abortion and to rule instead that the states must generally prohibit abortion.
I do not maintain that my objections show that Finnis is wrong. I offer them instead to show why I am not (yet) convinced that he is right, why I do not think that his constitutional claim, even if adopted by the Court, would actually achieve much in practice, and why I think that claim should continue to play only a minor role in pro-life legal strategy.
In his response, Finnis addresses at length this argument of mine:
[T]he Fourteenth Amendment, on Finnis’s reading, obligated at least ten states to enact statutes that generally prohibited abortion from conception. If this “plain meaning” would have been “too obvious to need discussion” among the ratifying legislators, wouldn’t we expect some evidence somewhere that some legislators in those ten states recognized that the Fourteenth Amendment would obligate them to enact such statutes? Or that, immediately after the Fourteenth Amendment was ratified, legislators in most or all of those states would have enacted such statutes and cited the Fourteenth Amendment in support of doing so?
Finnis first points out that the “plain meaning” that he was positing was not about the effect of the Fourteenth Amendment on the incomplete (only post-quickening) protection that common law provided the unborn but rather about whether the term “any person” in the equal protection clause included the unborn. I accept his correction. (Finnis’s argument also encompasses the due process clause, but he argues that “it is equal protection that matters most here,” so, like him, I will largely drop the due process clause from the discussion.)
I had assumed it to be a tiny and uncontroversial step to go from the proposition that legislators would have found it obvious that the unborn is a “person” entitled, under the text of the equal protection clause, to “the equal protection of the laws” to the proposition that legislators would have found it obvious that the common law, in allowing abortion between conception and quickening, failed to provide the unborn the “equal protection” from unjustified killing that it provided to born persons. I had especially thought that legislators who were working to add their states to the many that had already enacted statutes that prohibited abortion from conception would—if Finnis were right—reasonably be expected to have invoked the equal protection clause as compelling support for their cause. The absence of such evidence thus struck me as a problem.
Finnis offers a plausible explanation for this absence of evidence. On his account, legislators would have found it “reasonable to judge that nothing would be gained by such an appeal” (an appeal to the equal protection clause, that is) because Supreme Court decisions in the decades after ratification saw the common law as the “implicit baseline” for identifying an equal protection violation. On this view, the common-law prohibition on abortion would, by definition, not have been deficient under the Fourteenth Amendment.
It would not be fair of me to expect Finnis to have provided an exhaustive and compelling historical account in response to my objection. At the same time, I hope that it is not churlish of me to point out a hole in his account. In particular, the Supreme Court cases that Finnis cites from the 1880s don’t speak powerfully, if at all, to how legislators ratifying the amendment and acting in the immediate aftermath of its ratification in 1868 would have understood it. Finnis asserts that the Court “seems to have articulated assumptions very widespread if not universal since the amendment was first mooted,” but he does not further develop that assertion. Such assumptions would indeed have to have been pervasive from the outset if they would have led legislators to conclude that there was no point in invoking the equal protection clause.
A common textual argument against the constitutional personhood position (and one that I included in my “fourth” objection here) is that it would have the term “any person” include unborn human beings in section 1 of the Fourteenth Amendment (the section that contains the due process and equal protection guarantees) yet have the term “persons” in the very next section, section 2, of the same amendment—on counting the population of each state for purposes of apportionment of representatives in Congress—exclude them. In “Abortion Is Unconstitutional,” Finnis counters this argument by pointing out that corporations are persons for purposes of section 1 but not for purposes of section 2. So, his rebuttal goes, if artificial persons (corporations) are included in section 1 but not section 2, why find it anomalous that all natural persons, born and unborn, are included in section 1 but only born natural persons are included in section 2? After all, “no rights of the unborn were or are affronted by treating them as not included” in the population for apportionment purposes.
As I’ve made clear, I don’t think that the disparity that the unborn-as-persons position might create between the meanings of “person” in the two sections is a killer argument against the position, but I do think that it casts some doubt on it. One of the cases from the 1880s that Finnis refers to in his response suggests a distinctive (if obvious) ground for not counting corporations as persons in section 2 and thus adds, at least modestly, to the force of the textual argument against his position.
In its 1888 ruling in Pembina Mining Co. v. Pennsylvania, the Supreme Court explained its conclusion that “there is no doubt that a private corporation is included” in the term “any person” for purposes of the equal protection clause: “Such corporations are merely associations of individuals united for a special purpose, and permitted to do business under a particular name, and have a succession of members without dissolution.” In other words, the artificial personhood of a corporation derives from the natural personhood of the individuals who unite to form it. These born natural persons are fully counted under the apportionment provision in section 2, so it would make no sense, and would be a sort of double counting, to also count corporations. By contrast, there is no double counting in counting unborn persons along with born persons.
My sharpest disagreement with Finnis is over how his constitutional claim would work in practice—indeed, over whether it would have much practical utility.
Finnis stipulates that the Court “cannot order legislatures to enact laws” and “cannot order prosecutors to prosecute.” But he asserts that if the Court were to embrace his equal protection claim, “[s]tate laws against homicide would in principle apply to killing the unborn by abortion.” Unless the phrase “in principle” is operating as a huge escape hatch, I don’t see why this would be so. 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.
Finnis points out that a majority of states have in recent decades expanded their laws against homicide to cover feticide, but it appears that most, if not all, such laws forbid prosecution of a person for performing an abortion consented to by the mother. Finnis states that the existing exceptions “to accommodate Roe . . . might, in whole or part, become inoperative without further enactment” (my emphasis), but I don’t see how that could be expected to happen without further legislation. California, for example—which alone (according to 2017 data from the Alan Guttmacher Institute) accounts for some 15 percent of the nation’s abortions—provides that its ban on murder shall not apply to any person who kills an unborn human being if the killing complied with California’s permissive abortion law or “was solicited, aided, abetted, or consented to by the mother of the fetus.” How would that loophole become inoperative? (I don’t see how Finnis’s equal protection theory would forbid a state from extending its laws against homicide to protect unborn human beings from some, but not all, kinds of killings.)
Jurisdictions that have not expanded their laws to cover feticide include New York (#2 behind California in number of abortions), New Jersey (#5), and the District of Columbia (which has the highest ratio of abortions to births).
In short, I don’t think that Finnis is right when he claims that “In no state would there be a sheer vacuum of relevant and applicable law.” I think that there would be many such states. Finnis asserts that if a pro-life prosecutor sought to prosecute an abortionist, “courts would have to allow the prosecution.” But that’s simply not true if there is no law in the prosecutor’s state that the abortionist can be said to have violated.
To be sure, there are also many states that have on their books laws against abortion that are unenforceable under Roe and that might well become enforceable once again if Roe were overturned. But that same result ought to flow from simply overruling Roe, without the hypothetical additional ruling that unborn human beings have protections from abortion under the equal protection clause.
How would the Court have the capacity to deal with recalcitrant states? Finnis acknowledges that some states “would enact a regime falling short of what even easygoing ‘rational basis’ equal protection for the unborn would permit,” but he posits that such states would have “every incentive to try harder,” lest their “general homicide law” somehow kick in to apply against abortion. But for most states, general homicide law (whether or not expanded to cover a class of feticides) has nothing to do with abortion, and I don’t see how the Supreme Court would have the authority to declare that a state’s general homicide law applies to abortion.
Beyond simple inaction, recalcitrant states would have plenty of other ways to thwart or evade a Court ruling declaring that the unborn have protections under the equal protection clause. Imagine, say, that a state enacted a law that purported to allow abortion only when the life of the mother was at stake or when she faced a threat of grievous bodily harm. As I read Finnis, such a law might well pass “easygoing ‘rational basis’ equal protection.” But what if the state law also provided that an abortion provider’s certification of a threat of grievous bodily harm would be conclusively presumed to be accurate? Or that the penalty for any violation would be five dollars? Or what if prosecutors made clear that they would not pursue any charges against abortion providers? What could the Court do to coerce fuller compliance?
I do not understand Finnis to advance, explicitly or implicitly, any advice regarding the role that his equal protection theory ought to play in pro-life legal strategy, so I do not intend anything in this part to express disagreement with him. But some of his readers seem to think that his theory ought to play a major role, and I would like to explain why I disagree with such a claim.
With Justice Brett Kavanaugh’s replacement of Justice Anthony Kennedy in 2018 and Justice Amy Coney Barrett’s replacement of Justice Ruth Bader Ginsburg just last fall, we ought to have six justices on the Supreme Court who are ready to overturn Roe and who are able to do so in a way that will be durable. There is of course reason to be concerned that some of the justices might prove to be too timid. But such a concern cuts even more forcefully against the likelihood of their embracing Finnis’s much more aggressive equal protection theory. Simply put, I do not see how any justice who would be unwilling to overturn Roe could possibly be willing to embrace Finnis’s equal protection theory (which entails overturning Roe and much more). Conversely, the more that the overturning of Roe seems to hinge on adoption of that theory, the less likely it is to happen.
It’s worth emphasizing that although this equal protection theory has regularly made its appearance in abortion litigation, no justice has ever accepted it. Indeed, the one justice whom many might think most inclined to accept it—Clarence Thomas—has instead espoused the view that the Constitution, properly construed, leaves abortion policy to the legislative processes in the states.
My assessment—and, I would think, the overwhelming consensus among informed Court watchers—is that there is zero chance that the Court, as currently composed, would adopt Finnis’s theory. That doesn’t mean that Finnis’s theory has no role to play in abortion cases. As the Court weighs the stare decisis considerations governing whether or not to overturn Roe, the very fact that Finnis’s theory is much more plausible than Roe provides a weighty reason to overturn it.
What all this means is that the only plausible path to imminent legal protection of the unborn has as its first step overturning Roe and restoring abortion policy to the states. This first step should not be mistaken as the final goal, nor, of course, does it mean that those of us pro-lifers who endorse this strategy are indifferent to the abortion policies that the states establish. Quite the contrary. We recognize instead that this approach gives us the opportunity that Roe has long deprived us of—the opportunity to persuade our fellow citizens to enact robust protections against abortion and to build a culture of life that might one day lead to a constitutional amendment that prohibits abortion.
As Lincoln put it, in words that still ring true today:
In this age, in this country, public sentiment is everything. With it, nothing can fail; against it, nothing can succeed. Whoever molds public sentiment goes deeper than he who enacts statutes, or pronounces judicial decisions.
Indeed, Finnis himself makes much the same point, in the course of explaining why state legislators “in the closing decades (say 1865-85) of the great statutory reforms of abortion law” did not rely on abstract equal protection theorizing: “What counted was establishing, and then appealing to, the physician-emphasized facts about the life of the unborn. . . . 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.”
Edward Whelan is a distinguished senior fellow of the Ethics and Public Policy Center, where he holds the Antonin Scalia Chair in Constitutional Studies.