Does a fetus have constitutional rights?
Roe v. Wade has been harshly criticized from the time it came down in 1973, and not only by opponents of legal abortion. The eminent constitutional scholar John Hart Ely, though he favored permissive abortion laws, wrote that the Supreme Court had barely attempted to show how a right to them could be derived from the Constitution. Many liberal academics, finding the reasoning in Justice Harry Blackmun’s majority opinion hopelessly flawed, have tried to devise other constitutional justifications for its conclusion.
The criticism has obscured the fact that many conservative jurists have agreed with a crucial part of Roe’s reasoning. Blackmun conceded that the case for a constitutional right to abortion “collapses” if a human fetus counts as a “person” entitled to constitutional protections. In that case, he wrote, the Constitution would guarantee the fetus’s right to life. He then argued that fetuses do not fall under the Constitution’s protections. On this point, Judge Robert Bork and Justice Antonin Scalia, both conservative legal giants, agreed with Blackmun and echoed part of his argument.
They agreed that a fetus is not a constitutional person while considering Blackmun’s other key conclusion — that the Constitution protects abortion — absurd. The truth, they said, is that the Constitution says nothing about abortion and implies nothing about abortion. It leaves legislatures free to prohibit abortion or to allow it. That has long been the mainstream conservative legal position.
But there have always been opponents of abortion who believe that this standard critique of Roe does not go far enough. The distinguished legal philosopher John Finnis — he directed Justice Neil Gorsuch’s doctoral studies — has drawn some attention recently for making the case that Blackmun (and by implication Bork and Scalia) got personhood wrong: Human beings in the womb are persons, he contends, and thus laws that allow elective abortions violate the 14th Amendment.
No justice of the Supreme Court has ever advanced this view. It is unlikely that a majority of the court will act anytime soon to prohibit abortion. But it is a view that is gaining ground. Ed Whelan, who is influential in conservative legal circles, has expressed disagreement with Finnis’s essay but allows that there is more to be said for the thesis that fetuses should be considered persons for constitutional purposes than he had once thought.
The most powerful version of that case relies on the clause of the 14th Amendment that declares that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The amendment does not state whether living human organisms in their mothers’ wombs fall within its definition of “persons.” It states no definition. But during the era in which the amendment was ratified, state after state tightened laws against abortion.
Blackmun made two basic arguments against fetal personhood. He claimed that the laws against abortion were passed to protect women from unsafe surgery rather than to protect unborn life. That contention can’t be squared with the historical record. As Finnis points out, an Ohio legislative committee referred to abortion as “child-murder” while justifying a stronger anti-abortion law.
Blackmun’s other argument, which Bork and Scalia also adopted, was that references to “persons” in other parts of the Constitution could not possibly refer to unborn children. As Bork put it, the Fifth Amendment’s guarantee that no “person” could be compelled to testify against himself could hardly be understood to apply to babies in the womb. The upshot was that “person” doesn’t refer to unborn children in the equal protection clause, either. But that inference is invalid. A 5-year-old derives no benefit from the ban on self-incrimination. That doesn’t mean a state can legitimately deny him all legal protections.
A stumbling block in thinking through the meaning of the equal protection clause is giving too much weight to how the ratifiers of the amendment expected it to be applied. They were concerned, above all, with the denial of civil rights to Black Americans rather than to unborn children or 5-yearolds. But the language they put into the Constitution was deliberately more general than their main purpose. They understood themselves to be adopting a principle.
If conservatives broadly come to accept the fetal-personhood thesis, it ought to have at least two practical implications:
When the Supreme Court next reconsiders its abortion jurisprudence, conservative justices should refute both halves of Blackmun’s argument, not just his case that abortion receives constitutional protection, but also his case that unborn children do not. Congress is within its rights to legislate against abortion, something that federalist-minded conservatives have sometimes questioned. What the thesis cannot do is act as a magic wand that overcomes our country’s deep political disagreements over abortion.