ABORTION IS UNCONSTITUTIONAL
Begin with Blackstone’s Commentaries,” wrote presidential candidate Abraham Lincoln in 1860, when asked how to get a thorough knowledge of law; read them “carefully through, say twice.” (That’s four thousand pages, just to “begin” with.) Lawyers involved in drafting and debating the Fourteenth Amendment in 1866 were all acquainted with the Commentaries on the Laws of England, published in 1765 in time to be appealed to among the Framers at Philadelphia in 1787, and still foundational, in the original or in American editions, in early- and mid-nineteenth-century legal education. The Fourteenth Amendment was drafted to sustain the Civil Rights Act of 1866, whose sponsor, James F. Wilson, Chairman of the House Judiciary Committee, said while introducing it:
What are these rights? Certainly they must be as comprehensive as those which belong to Englishmen. . . . Blackstone classifies them under three articles, as follows: 1. The right of personal security . . . 2. The right of personal liberty . . . 3. The right of personal property . . . The great fundamental rights are the inalienable possession of both Englishmen and Americans . . .
Wilson was quoting from the Commentaries’ first chapter, “Of the Absolute Rights of Individuals,” and Wilson, too, calls these rights absolute, meaning not exceptionless but rather natural or human. Blackstone delineates these rights:
The rights of the people of England . . . may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property: because . . . the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.
The passage continues without a break:
I. The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.
1. Life is the immediate gift of God, 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. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.
An infant . . . in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it;and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born.
Plainly, there is an individual, a human being, as soon as there is a living individual in the mother’s womb. For some purposes (guardianship, for example) the law treats such an individual, even at that beginning stage, as equal to a born child. For other purposes, notably direct protection of the right to personal security by the criminal law, the life of the unborn begins “in contemplation of law” only when the “infant is able to stir in the mother’s womb.” But an English statute of 1803, only a generation after Blackstone, made it a felony to attempt abortion even before the child was provably “quick.” Thus, by the dawn of the nineteenth century, English criminal law “established” the “great fundamental right” uniquely important for an unborn child, beginning when the child did: at conception.
Notice Blackstone’s and Wilson’s logic: Persons, “individuals,” people, have absolute or natural rights. In England and America alike, the law gives these effect—“establishes” them—as legal “rights of the person.” Where the law’s establishment of personal rights is for any reason defective, individuals have a claim in justice to that law’s replacement or supplementation. Slaves and non-citizen freedmen like Dred Scott, for example, had in reality absolute rights to security, liberty, and property, and were owed state law that neither wholly nor partly denied these rights. Hence the need for a Civil Rights Act, and a Fourteenth Amendment to grant power to enact it (and to make the absolute or natural right a positive-law constitutional right).
The Commentaries’ first book is “Of the Rights of Persons,” and its first chapter, “Of the Absolute Rights of Individuals,” begins by explaining what persons are:
Persons . . . are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us; artificial are such as created and devised by human laws . . . which are called corporations or bodies politic.
The rights of persons considered in their natural capacities are also of two sorts, absolute and relative. . . . By the absolute rights of individuals, we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it.
The extent to which these entitlements will in fact be “established”—acknowledged and given effect—in law has fluctuated, as Blackstone observes before he settles down to detailing how far the law of England in his day established them. Book I’s exposition of “The Rights of Persons” has eighteen chapters, the last being “Of Corporations.”
Shortly after the Fourteenth Amendment had been sent to the states for approval, its main draftsman, John A. Bingham, said more than once that his work for it
represented my conviction of the fundamental, eternal rights of humanity, rights that had been denied to the negroes. It surged from my understanding of the Divine Plan for people. These are the precious rights of life, liberty and the pursuit of happiness. I had thought of substituting property for pursuit of happiness. By property I meant that [belonging to] human beings. By persons I did not mean corporations.
But, as Bingham would not have denied, the constitutional question is not what the drafters of the Amendment “meant”: what they had in mind to achieve, their intended purposes or aims, nor even what they happened to think about aloud. The question is what their wording meant to those state legislators who ratified it, as they considered it in the context of the document and law they were amending and of the understanding of language and law prevalent among them.
Of the Fourteenth Amendment’s five sections it is section 1 that has mattered most. Section 1 consists of four propositions:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United 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 third sentence is usually called the Due Process Clause. In it, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) found a prohibition invalidating any state law substantially restricting a pregnant woman’s liberty to choose to bear or abort her unborn child. Roe v. Wade also said that if the unborn were persons, their “right to life would then be guaranteed specifically by the Amendment,” and the case against Texas’s law forbidding abortion except to save the mother’s life would collapse. Perhaps the Court thought that guarantee was implied by the Due Process Clause, or perhaps it was thinking of section 1’s fourth sentence, the Equal Protection Clause. Either would suffice. Each protects “any person.”
Given what Blackstone’s Commentaries show about the prevalent legal understanding in 1866 of the word “persons,” it was not too surprising that the Supreme Court, when in 1886 the issue was first raised, ruled it too obvious even to need argument or explanation that “any person” in the Fourteenth Amendment’s “equal protection” clause includes corporations. (Santa Clara County v. Southern Pacific Railroad established this, and it has been the rule ever since.) Indeed, Bingham’s “I did not mean corporations” may well have been a tacit admission that, though protecting corporations was no part of his purpose, the public language he chose did mean that corporations have whatever Fourteenth Amendment rights they logically can have—and a tacit admission that, had he wanted them not to be included, he could and should have written “natural persons.”
Logically, corporations could not come within the Amendment’s first sentence, for they are never “born” or “naturalized.” But they can come within its third and fourth, for lawyers brought up on Blackstone and the whole tradition he articulated included corporations under “persons” when that term is unqualified, as in “any person.”
The evidence is that neither corporations nor the unborn were discussed in the Committee that drafted, or the Congress that debated, the first section of the Fourteenth Amendment. But, as we saw Blackstone saying, the unborn were the very first persons—individuals, human beings (“men”)—whose “absolute” right to bodily security was “established” in the English law that Wilson wanted American law to match in respect for rights. In the criminal law of 1765 that “absolute” security right became an “established” right as soon as the child’s mother was “quick with child” (perhaps only at “quickening,” when the child’s movements became perceptible to the mother, around fifteen weeks into the pregnancy—or perhaps much earlier, when the child was in Aristotelian biology “formed” and “quick,” that is, alive). In the law of guardianship, and of succession to property, too, there are established “rights of the person” that the unborn child enjoys, Blackstone is saying, from the beginning of its life in the womb (the beginning of the pregnancy).
Is the unborn child a person within the meaning of the Fourteenth Amendment? The Court in Roe v. Wade (1973) began its response with the acknowledgement already noted: If the answer is “Yes,” the case against the Texas abortion statute “of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.” The Court’s answer was “No.”
For this answer it offered, in effect, three reasons. None of them is defensible. Yet the Court’s answer has never been challenged or questioned in the Court by any Justice. In examining the Roe Court’s reasons and seeing how unsound they are, we will become clearer about the original public meaning of the Fourteenth Amendment’s first section—about how any legally informed reader at the time would have understood the phrases “deprive any person” and “deny to any person.”
The Court’s first reason simply lists the eighteen provisions of the Constitution in which the word “person” appears—including the uses, just mentioned, of “any person” in the Fourteenth Amendment’s Due Process and Equal Protection Clauses—plus the following comment:
In nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.
What exception or exceptions to “only post-natally” did “nearly” and “with any assurance” signal? No hint is given. The obvious exceptions are the key provisions, those directly under consideration: Unless guaranteed by law, due process and equal protection might obviously be denied to “pre-natal” persons. And every state by common law and/or statute already prohibited everyone from denying persons some if not all of their prenatal rights.
As for the other sixteen or seventeen provisions, none is applicable “with any assurance” to corporations. Yet the Court since 1886 has effortlessly, firmly, and reasonably included corporations within the guarantee of due process and equal protection for “any person.” Like the unborn, corporations do not fit the first of the three uses of “person” in the Fourteenth Amendment’s first section, the use in its first sentence: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” So, corporations are not among the persons—persons already born—guaranteed citizenship by that first sentence of the section. The unborn, too, though they are (as Blackstone put it) persons, do not come within that guarantee until they are born. But as persons within the third and fourth sentences’ unrestricted uses of “person,” both corporations and unborn persons get the benefit of these sentences’ guarantees of due process and equal protection, even if neither corporations nor the unborn fit any of the Constitution’s many other uses of “person.” Indeed, unborn persons come within the guarantee even more certainly than corporations do. Natural persons—human beings—are the primary, focal referent of the word “person”; artificial persons—corporations—are persons in an extended, non-focal sense.
Consider another clause that does not “with any assurance” apply to prenatal human beings but assuredly does not apply to corporations. Corporations—and probably the unborn—are not among that “whole number of persons in each State,” which under the Fourteenth Amendment’s section 2 settles a state’s share of Congressional representatives. In any such clause about “counting,” various conventional elements are taken for granted, and loose ends are left for further, more or less free, conventional or legislative specification: precisely when or for how long a person must have resided “in” the state, for example. Conventionally, censuses—particularly those keyed to voting and political representation—include neither artificial persons (corporations) nor the unborn. Still, if Congress today lacks power to include unborn children in a census, it can only be because the original public meaning of “persons” in section 2 was conventionally, implicitly, restricted, given that in 1866 (as in all previous times) enumerating them would be rather pointless. And it would be quite unfeasible, except by using a criterion (“quickening” in the sense of movement perceptible to the mother) challenging to modesty and rapidly falling out of legal use, or else by a grossly intrusive personal examination employed for public purposes only when determining whether a capitally condemned woman was pregnant (or “quick with child”) and so (though long before “quickening”) entitled to reprieve out of respect for the rights of her unborn child. For census and apportionment purposes, no rights of the unborn were or are affronted by treating them as not included in the original public meaning of “counting the whole number of persons.”
To return to the key third and fourth sentences of section 1: Had they been intended not to include aliens, they could have said “such persons” (as the persons born in the U.S. and thus, by the first sentence, citizens). Had they been intended not to include corporations, they could have said “natural persons.” Had they been intended not to include the unborn, they could have said “any person wherever born.” They said none of these things and so communicated a public meaning among the legally informed that—whatever particular legislators privately did or did not want or bring under consideration—did clearly enough include all three, the unborn even more certainly than corporations and aliens.
So, this first reason is no reason.
The Roe Court accompanied the first reason with a second, different in kind: a historical argument:
All this [about the uses of “person” in the Constitution], together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn.
(Later, the Court fuzzily restates its conclusion by denying that the unborn are “persons in the whole sense”—a phrase with no known legal meaning or usage, and out of kilter with relevant legal truths, such as that toddlers, though indubitably persons in fact and law, lack various important legal capacities such as to make contracts or commit crimes.)
By “our observation, supra” the Court meant its review of the common law and pre-1866 statutes about abortion. About the English common law inherited by the colonies and states, that review was astonishingly inaccurate. It proceeded as if Blackstone had not headed his list of absolute (natural) “rights of the person” to security with the unborn child’s right not to be aborted (with a soon-to-be eliminated “stirring” or “quickening” precondition for applying homicide protection). The Roe review relied wholly upon an abortion-law reform advocate’s article, too recent to have been critiqued post-publication by peers, and soon—but too late—to be refuted. The Court thereby committed itself not only to Cyril Means’s radically distorted history of the common law, but also to his fundamental conceptual blunder. Here is the Court’s version of it:
[1] . . . It now appear[s] doubtful that abortion was ever firmly established as a common law crime even with respect to the destruction of a quick fetus. . . . [2] . . . At common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. [3] Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today.
The “doubt” alleged in [1] and taken for granted in [2] is entirely unwarranted by history. Besides Blackstone and the authorities he cited, actual trials and convictions in England (for instance, in Derby in 1732) and America (for instance, in Maryland in 1651 under non-Catholic governance) establish that, as even Means had earlier accepted, performing an abortion even at the woman’s request was, at common law—throughout the nation’s history—a serious indictable offense, certainly when it could be shown that the child had been “quick,” and quite possibly (as in both the Derby and the Maryland cases) even when that was not shown. And even in the states where pre-quickening abortion was not a triable common law offense, abortion induced however early in pregnancy was clearly unlawful. (Many sorts of unlawful behavior are not themselves triable offenses.)
Proposition [2] conceals the gravity of the crime of abortion, late or early, in all the state laws that began replacing the common law from 1821 onward.
Proposition [3]’s talk of a “right to terminate” is a blunder in relation to the common-law period, and simply absurd in relation to every statute replacing the common law in any “portion of the 19th century.” At the time of America’s colonization, forgery was not an offense at common law, nor was perjury, attempted burglary, or even attempted murder. But anyone who claimed to “enjoy a . . . right” (or what Means, less recklessly than the Court, called a “common law liberty”) to do any of these things, or to carry out abortions on consenting women, would quickly be disabused by the Crown’s other courts, coroners, and local justices.
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 Bl. Com. 129,” any attempt to induce an abortion on a consenting woman even prior to quickening is an act done “without lawful purpose,” and so, if it happens to result in her death, it is murder—even though it was intended to help her and she fully consented to the risk.
Thirty days after this judgment, Massachusetts enacted its first abortion statute to replace the common law; make abortion and attempted abortion punishable with one to seven years imprisonment without regard to quickening; and reduce the offense of thereby causing the woman’s death from murder to a crime punishable with five to twenty years. As that state’s Supreme Judicial Court said in 1858, “The statute . . . was intended to supply the defects of the common law, and to apply to all cases of pregnancy. . . . It is not necessary to allege that the child was alive or that the woman was quick with child.”
Three months after Iowa ratified the Fourteenth Amendment in 1868, its Supreme Court—citing (like Shaw in 1845) the page where Blackstone presents the right of the unborn to security as the first example of the common law’s respect for the absolute rights of the person—spoke of the common law as “a general guardian holding its aegis to protect the life of all,” for
its all embracing and salutary solicitude for the sacredness of human life and the personal safety of every human being . . . not only extends to persons actually born, but, for some purposes, to infants in ventre sa mere.
The Chief Justice then quoted Lord Hale, the mid-seventeenth-century English Chief Justice, affirming the unlawfulness of seeking to destroy any child with whom a woman is pregnant (without restriction of gestational age and regardless of her consent).
No American court at the time of the Fourteenth Amendment would have accepted the Roe Court’s second reason or contemplated its picture of the common law without a sense of incredulity.
That second (historical) reason offered by the Court has another element: a picture of the statutes that replaced the common law, first in England and then in many American states and territories before the enactment of the Fourteenth Amendment and during the two years of its ratification. The Court depicts these as few, and as concerned with preserving the life and health of pregnant women and the status of medical professionals, rather than with the unborn. This depiction is, and has been thoroughly proven to be, quite wrong.
The common law, so the Court claims, remained in effect in “all but a few states until mid-19th century,” and “it was not until after the War Between the States that legislation began generally to replace the common law.” Another two incorrect claims: By the end of 1849, eighteen of the thirty states had antiabortion statutes; by the end of 1864, twenty-seven of the thirty-six; and by the end of 1868, thirty of the thirty-seven states—including twenty-five of the thirty ratifying states, along with six territories. James Witherspoon’s masterly 1985 summary in the St. Mary’s Law Journal of these statutes, and of their successors close in time and content, takes nearly fifty printed pages.
Though making no unequivocal finding, the Roe Court gives the last word to Means and other advocates who claimed that protecting prenatal life was not even a purpose of these statutes, that “most state laws were designed solely to protect the woman,” and that any statutory attention to quickening (even only in relation to penalties), or any failure to incriminate the pregnant woman for her complicity in abortion, “impliedly repudiates the theory that life begins at conception.” Witherspoon’s exposition and analysis shows the error of these claims.
By the end of 1868, twenty-seven of the thirty states with antiabortion statutes criminalized attempts to terminate pregnancy before (as well as after) quickening. In most statutes, quickening had no bearing at all on penalties, and where quickening remained relevant at all the point was—not unlike at common law—to help establish that the abortion had caused a death. In a majority of statutes, proof that the abortion had caused the death of the unborn—something irrelevant to the health of the mother—increased the penalty.
Various other features of these statutes against voluntary abortion underline the concern of legislatures with the life and security of the unborn. Most of them, unlike Massachusetts, provided the same range of punishments for killing the unborn child as for causing the mother’s death. Most of them designated the killing of the unborn child as “manslaughter.” Most of them, unlike the Massachusetts consolidators of 1860, categorized abortion with homicide, related offenses, and offenses against born children. Most of them, unlike Massachusetts and following instead the example of Connecticut in 1830 and New York in 1845, required proof of intent to “destroy the child.” Most of them, unlike Massachusetts, incriminated the mother’s own participation in her unlawful abortion. In these and other ways they showed their concern with protecting the right to life of the unborn, even if they may also often have aimed to discourage women from courses of action then so perilous to their own life and health.
About a month after Ohio had ratified the Fourteenth Amendment, its legislature acted again to tighten up Ohio’s 1834 antiabortion statute by abolishing the distinction it made, though only in relation to the severity of punishment, between pre- and post-quickening. That distinction, said its Senate select committee, was “ridiculous,” because physicians “have now arrived at the unanimous opinion that the foetus in utero is alive from the very moment of conception.” The committee wrote that “no opinion could be more erroneous” than “that the life of the foetus commences only with quickening, and . . . that to destroy the embryo before that period is not child-murder.”
The committee report approvingly quoted Thomas Percival’s influential Medical Ethics (published in Manchester, England, in 1803, six months before the English antiabortion statute of that year): “To extinguish the first spark of life is a crime of the same nature . . . as to destroy an infant, a child, or a man.” In the committee’s words, it should be proclaimed to the world and to consciences “that the willful killing of a human being, at any stage of its existence, is murder.”
State legislators such as these from Ohio, if asked whether, in the third and fourth sentences of the Amendment’s first section, the phrase “any person” properly includes the unborn, would have answered: Yes, that goes without saying. Do you think a state should be allowed to deprive unborn children of some disfavored race, or of foreign nationals, of those “absolute” rights and legal protections that the unborn have because of what they are by nature? Why, the first chapter of our first law book tells how the unborn have all those rights of the person—of every human being—that befit their condition and circumstances. We are legislating now, before the Amendment comes into force, to ensure that our law here in this state is adequate to those circumstances and that condition, as science and our physicians now understand them. So, yes!
In seeing that only some such answer, or its core, would have been acceptable to those involved anywhere in ratifying the Amendment, one sees that to reverse Roe on personhood would be to restore a one-hundred-fifty-year-old plain meaning too obvious to need discussion among those who, as legally learned (or informed) elected legislators, were concerned or content to include it as an implied part of their constitutionalizing project of tersely putting certain matters beyond the powers of the legislators of any state.
The Roe Court’s third reason for answering “No” is equally slender but perhaps the most interesting of the three. For it gives, I think, a clue to a mystery: Why have the Justices who in or since Roe have rejected its other main holding, about the existence or weight of the woman’s Fourteenth-Amendment due-process liberty or privacy right, been unwilling to challenge or question, even in passing, its logically prior but erroneous holding that her child is not a Fourteenth-Amendment person until birth? Why do they put up with the dogma that the Fourteenth Amendment’s makers and ratifiers willed that their guarantee to “any person” should remain a nullity until another second had passed and another inch been traversed by one and the same child?
The Court presents this third reason, primarily, in a long footnote asserting that those who say the unborn are persons face a dilemma. The footnote shies away from ever articulating a dilemma (a pair of inconsistent positions), and retreats to a set of rhetorical questions. To get a dilemma we must convert what the questions insinuate into assertions. Thus: A person or legislature that holds unborn children to be persons must, to be self-consistent, (i) prohibit all termination of pregnancy even to save the life of the mother, (ii) treat the mother as criminally complicit in any termination she requests or permits, and (iii) treat all abortion as murder punishable with “the maximum penalty for murder prescribed by . . . the Texas Penal Code.” But no state abortion statute does any of these. So (this argument concludes), all are inconsistent with any claim that the unborn are persons, protected by the Fourteenth Amendment.
The Court also floats a secondary version of this third reason: All state laws, by explicitly or implicitly permitting abortion to save the mother’s life and treating abortion as less culpable than first-degree murder, acknowledge that the unborn are not persons (and that what begins at conception is not a life, but only a “potential life”).
But in both its versions this reason, like the other two, wholly fails. Those nineteenth-century exponents of medical ethics, and the medical associations and legislators who held most firmly that “the willful killing of a human being, at any stage of its existence,” is a crime, were perfectly consistent in holding that it can be right to save one person’s life by actions that immediately cause the death of another, that among wrongful killings there are grades of culpability, and that there can be good and sufficient reasons for granting immunity from prosecution to a participant in wrongful killing. The Court’s “dilemmas” are each absurd, once one starts thinking seriously about homicide law as it actually is, or indeed, about the rest of what law and reasonable standards stipulate—or treat as justifiable or at least excusable—about how far one person must, or need not, put up with being harmfully impinged upon, even quite innocently, by another.
One can speculate, however, that the Court’s conservatives have been reluctant to revisit Roe’s peremptory and unjustified dismissal of the unborn from the status of being persons with a Fourteenth-Amendment right not to be deprived of life without due process and equal protection of law. Acknowledging that status and those rights would entail the Court’s retaining (for as long as the Fourteenth Amendment endures) the responsibility of supervising state laws—or indeed any Congressional law enacted under the Fourteenth Amendment’s fifth section’s grant to Congress of power to “enforce” the Amendment “by appropriate legislation.” But as that word “appropriate” signals, the Fourteenth Amendment was not enacted to make easy the role of the Court and its justices.
Still, however massively controversial in the public square, the task of supervision would not outrun the competence of a Court mindful of its duty of fidelity to the Constitution as meant. For with that fidelity come the historic standards that settle at least the contours of the application of “due process” and “equal protection” to the unborn. As we have seen above and will see below, precisely those standards were under discussion and legislative deliberation across the whole country, albeit not simultaneously, in the years from about 1820 to about 1880. With virtual unanimity the country settled on a regulative regime in which preserving the life of the mother was firmly accepted as due and compelling. Almost everywhere that was entirely explicit; few were the places that, like England and Massachusetts, buried it in an “unlawfully” whose reference to that exception was left unarticulated but well-understood.
Moreover, even if there were no such clear historic standard contemporaneous with the Fourteenth Amendment’s adoption (a standard virtually universal down to 1960), the task of legislatures and of the Court, once the constitutional truth is acknowledged that the unborn are persons according to the Fourteenth Amendment, would not be to replicate the reasoning and judgments of a moralist (or other conscientious person) defining the contours of fully reasonable respect for the basic human good of life. The jurisdiction of human law is not to secure purity of morals or good character. It is to do and preserve justice among persons in their dealings and interactions with each other—a justice that is a matter of external acts that are reasonably fair, rather than of fully upright (let alone heroic or saintly) motivations and reasonings.
Judgments about what it is reasonably fair to permit do not have the permanence and precision that one can hope for in relation to the relatively few moral norms that exclude intentional destruction of basic human goods. This relative imprecision is all the more to be expected when the question is what conduct, and what end-results—in a uniquely intimate competition of interests—should be prohibited, or can fairly be permitted, by state law. But whether in determining what is to be legally permissible or in settling upon penalties for the prohibited, doing what is reasonably fair depends on candidly acknowledging the true facts of the matter about whose interests are at stake.
That is what legislatures all over America judged they were bound to do as the facts of human life—facts gradually freed by empirical findings from the obscurity of Aristotelian guesses about the first six weeks of gestation—impelled the nation’s doctors to crusade for a more adequate justice for the unborn. It was a crusade whose arguments about the facts and their moral implications were regarded as irrefutable, and almost everywhere prevailed with substantial unanimity.
In the journal Academic Questions for winter 1994, I displayed and documented the gross deceptiveness of the Amicus Brief of 281 Historians filed in Webster v. Reproductive Health Services (1989) and again in 1992 in Planned Parenthood v. Casey—deceptions about that crusade’s core claims and motivation. In Issues in Law & Medicine in 2006, John Keown detailed more of the Briefs’ impostures (and Roe’s historical distortions and mistakes); Joseph Dellapenna’s Dispelling the Myths of Abortion History (2006) documents the whole Means-Roe-Historians’ Brief fiasco over some thousand pages.
At the center of these discussions was the scholarly though manipulative book Abortion in America (1978), by the historian James C. Mohr. Incredibly, Mohr was a signatory of the first iteration of that Brief—incredibly, because on pages scrupulously avoided by the Brief, his book had summed up the real position of the doctors (and of the legislators, nearly unanimously in agreement with them), in a chapter titled “The Physicians’ Crusade Against Abortion, 1857–1880”:
Logically, then, if a child could legally exist in utero at some stage of gestation, say at eight months, when the law recognized it as a victim, it just as logically existed at all other stages of gestation. Most physicians considered abortion a crime because of the inherent difficulties of determining any point at which a steadily developing embryo became somehow more alive than it had been the moment before.
Yet equally the physicians held that if the presence or development of the unborn child threatened the life of the mother, state law must not prohibit the taking of medically indicated steps likely or certain to terminate the child’s life. Medical ethicists among them could see nuances in the question where the balance of fairness lay in particular cases of mother and child, but there was agreement about the coherence of the reformed laws’ project of giving equal protection to both the persons involved, ignoring neither their basic equality as human beings nor the obvious inequalities and unique interdependencies between them.
Thus, the public meaning of “any person” in the due process and equal protection clauses of the Fourteenth Amendment included the unborn, who in 1868 were protected, imperfectly though really, by the common law in some states, but in a growing majority much more sufficiently (though still variably) by recent reforming statutes. That historical fact about public meaning provides a sufficient basis for a judicial rectification of Roe’s great error about the constitutional status of the unborn.
The truth that human beings are persons is not of primary concern to the Supreme Court. Only if there were genuine uncertainty—and there isn’t—about the historical facts (original public meaning) would constitutional adjudication need to take into consideration this other sort of fact, to resolve the uncertainty. But it could also be of relevance to Justices seeking assurance that the historic positions were not inherently or substantially religious and have not been overtaken by new knowledge or superior explanations of reality. For legislators, by contrast—such as those who settled the laws presupposed by the Fourteenth Amendment, or closely consorted with it in time, or who ratified the Amendment—the secular truth about human beings was, as it needed to be, the primary and central concern.
The unborn in their circumstances, whether immediately (or soon) after conception or during birth or at any time in between, each share in the quality of being human. So, despite any emergent inequalities with one another, they are each by their nature—prior to all convention and law—fit to be treated, unlike all other animals and creatures, as an equal of all who share that human nature.
These facts—of direct concern to citizens and legislators or constitution-makers—are partly biological and physiological, and partly not. For consideration of them extends natural-scientific concerns (concerns with understanding and explaining specific fields of data) into concerns with the datum that there are beings like us—beings who have the capacity not only to be aware of data but to understand and explain it to one another.
At the outset of a human life, those capacities are more or less undeveloped, and at intervals regular and irregular they are dormant or damaged or blocked or decayed. But human beings always have radical capacities that animals of other kinds never have. It is a sober truth—more and more intelligible as our knowledge of genetic complexity and the nanophysics of DNA expands—that the one-cell human embryo has, right then and there, radical capacities, to think, talk, and laugh, which a frog embryo simply lacks. And these radical capacities are the rational foundation of human equality. Their possession by every member of our species, from conception until death, justifies communities in undertaking the burdens of envisaging and securing equal protection of law, and in setting out on the course of acknowledging rights of persons. It took Blackstone a weighty volume to outline the law that, in one political and legal culture, imperfectly but aspirationally “established” those rights—acknowledged them in principle, and tried to give them a fair specificity, treating like cases alike and different cases differently on a foundation of human equality.
My Intention and Identity (2011) analyzes the inevitably unsuccessful attempts of philosophical colleagues in Oxford and Cambridge to make sense while they deny that you or I were once an embryo, indeed a zygote. I analyze similarly doomed efforts by some German legal scholars to be scientifically and morally credible while they reject their own country’s admirable, informed insistence on the legally and constitutionally equal dignity, as persons, of even the most embryonic human. And I analyze failed efforts of a priest-philosopher to find a point after conception (the union of male and female gametes into one cell) when many human organisms become one human individual. All such attempts break down because the fact of the matter is as stated frankly by Robert G. Edwards, the first person to bring a human person from conception in a Petri dish to birth from her mother’s womb. Work on in vitro fertilization, into which ethical considerations “hardly entered,” enabled him, he wrote, to “examine a microscopic human being—one in its very earliest stages of
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