Constitutional Vanguard: There Is No Originalist Case for Roe v. Wade
The latest newsletter is out, after a substantial break for a long trial I did. It is titled There Is No Originalist Case for Roe v. Wade. It begins with Ed Whelan’s recent post demolishing an alleged originalist case for Roe. After reading Ed’s post, I decided to dive a little deeper, since we have the Dobbs case from Mississippi being heard this year (and decided next year).
I’m going to work to get these out a little more frequently in the near future to make up for the gap — which I will have time to do since our last child is now out of the house . . . something I have been meaning to post about and hope to tonight.
Hope everyone is well. It’s nice getting back to a routine after being rudely yanked from it for weeks. I’m a guy who likes routine, so when I abandon one, you know it’s for something important.
Oh, you can subscribe here, if you like.
A link to Ed’s post, or to Arron’s (bad link at substack) would be helpful.Kevin M (ab1c11) — 9/22/2021 @ 9:08 am
Oh, and congrats to you and your wife on successful parenting.Kevin M (ab1c11) — 9/22/2021 @ 9:10 am
BTW, why is it important that there be an originalist case one way or the other? Certainly a textualist would not care. Nor would someone who tninks that a modern perception is important, such as Justice Kennedy’s bounded liberty arguments or (shudder) a Living Constitutionalist.
In an originalist )or textualist) sense, the argument over abortion is unchanged since 1973. In every other sense the change is immense. Some form of Roe is here forever.Kevin M (ab1c11) — 9/22/2021 @ 1:22 pm
I think this misses the point; When does the fetus become alive?
Prior to that point abortion is mostly a private medical procedure. After that point it’s mostly murder. (edge cases will exist, non-viable fetal development, complications that put the mother’s health at risk etc)
I think the subset of people that make up their mind based on constitutional legal theories is pretty small.
I think following the law is important and this legal question is interesting, but I think most people have made up their mind for other reasons and are looking for legal theory to support that.Time123 (9f42ee) — 9/22/2021 @ 2:53 pm
This will be dred scott decision II. Antifa = john brown. Tanny like anti-abortionists today think they will resolve the problem in their favor but will only get the opposite results. The majority will no longer put up with your BS. Slavery tore the whig party apart and abortion will force the democrat party to give the anti-abortionists a post natal abortion! Be careful what you wish for is an old chinese curse. If you think the pro choice democrats will just bend over and say thank you sir may I have another! You are badley mistaken.asset (b659d5) — 9/22/2021 @ 3:10 pm
I don’t get some of the issues here. If x state says abortion is OK up to 6 weeks, then they are saying abortion is fine. If the argument is no abortions are OK, that’s a different argument.Colonel Klink (Ret) (1367c0) — 9/22/2021 @ 3:16 pm
Freedom of choice. =mike-drop=DCSCA (f4c5e5) — 9/22/2021 @ 3:17 pm
It has been two generations since I briefed a case defending Illinois’s post-Roe v. Wade abortion law. It had a provision that the woman must be pregnant. Following Roe v. Wade, abortion boutiques (that’s the best word for them) had sprung up on Chicago’s Magnificent Mile performing abortions at $500.00 a pop. Whether the woman was pregnant or only believed she was. Is a pregnancy test an undue burden? Planned Parenthood? Governor Casey? Justice O’Connor? Bueller?
Anyway, I went back and reread Roe v. Wade. And it seems so quaint, now. “Why, nk?”, I hear you ask. Well, comrades, I’ll tell you. You see, before the Court got to the State’s interest in the unborn baby (and decided the best place to split it was prior to “quickening”), it first recognized the State’s interest in the health and safety of the mother herself.
“My body, my choice” people do not. If they ever did. From Planned Parenthood firing Leena Wen for framing the issue as women’s health to “Things gotta breathe, and that’s why I don’t wear underwear”, we have two generations of children who think the adults are there only to support their pleasures and to get them out of trouble.
There is an originalist argument for having the abortion in the first trimester. The Court starts laying out the history of abortions at p. 129. But, as the dissents will gladly point out to you, that does not mean that there is an originalist argument for a Ninth Amendment right to an abortion. But, again, a Ninth Amendment right is what enough people think is a right. Pass that doobie, won’t you?nk (1d9030) — 9/22/2021 @ 6:00 pm
Certainly the framers and adopters of the 14A did not think that the amendment could be applied against state regulation of abortion. But does that expected application foreclose the outcome? Constitutional interpretation should be faithful to the constitutional text and the meaning of the words at the time of adoption. And that meaning should be understood in light of underlying principles. For example, one can infer a right of self-defense from the 2A, although it is never mentioned explicitly in the text.
What were the authors of the 14A text trying to achieve by choosing the words that they chose? One of the purposes of the Equal Protection Clause was to secure equal citizenship and civil equality of all of its citizens. It could be reasonably interpreted as abolishing class legislation (arbitrary and unreasonable distinctions among citizens, treating people as second-class citizens). The EPC is abstract in its form and thus requires enabling doctrine….meaning tests that say what’s in and what’s out. The tests themselves may run out of gas in time or not do justice to the underlying principle. Just like the narrow read of the P&I clause significantly limited individual liberty in the Slaughter-House Cases. This “mistake” then pushed others to look for fundamental liberties in the due process clause…and we have an unfortunate trajectory in the law.
Then with Carolene Products the Court drifted toward classifications rather than equal citizenship. But government can create unfair burdens without overt classification. The point being that some constitutional doctrines designed to fill in abstraction under-protect principles originally envisioned. Do abortion laws make women second-class citizens? You might argue that a whole slew of laws in 1868 kept women from being civilly equal to men, so that couldn’t have been its purpose. But that was attitudinal driven and not text driven. In fact, men did not adequately represent women’s interests as later borne out by the need for the 19A.
But no man can be similarly situated to a pregnant woman – it’s biologically impossible. So abortion restrictions are not sex discrimination. However, when the state uses women’s capacity to become pregnant as a lever to disadvantage them, then it might violate the principle of equal citizenship by imposing a sex-specific role for women. Abortion restrictions both compel women to bear children against their will, risking health and life, and potentially compel motherhood and all of its corollary responsibilities. Responsibilities asymmetrically borne by the woman. A large portion of the poorest of the poor are single mothers. These laws deny women a significant choice in the direction of their lives. Our current sex discrimination doctrine misses the boat on what was intended by the EPC. I’m not talking about equality of outcome but equality of imposed burdens. This is different from everything goes and the court just making stuff up. I think the EPC and P&IC arguments have merit. [Sorry for the length Noel!]AJ_Liberty (a4ff25) — 9/22/2021 @ 8:18 pm
Two disbarred lawyers, one from Illinois and one from Arkansas and a doctor who does or did abortions in San Antonio, Texas, are trying to spoil the careful plan of Texas Right to Lifers to get places that do abortions to stop themselves.
https://www.nytimes.com/2021/09/20/us/texas-abortion-lawsuit-alan-braid.htmlSammy Finkelman (51cd0c) — 9/22/2021 @ 8:32 pm
I really thought this was the setup to a joke, probably from nk.
A real shame.Dustin (219457) — 9/22/2021 @ 8:45 pm
Rolling Stone’s is better and no behind a subscription wall:nk (1d9030) — 9/22/2021 @ 9:28 pm
“The right-to-lifers need to hope that the lawsuits get dismissed for lack of standing.”
I’m pretty sure that the law is written such that anyone who wants standing gets it.Davethulhu (017f04) — 9/22/2021 @ 10:50 pm
Excellent comment, AJ.
Abortion is a sticky wicket.
People love them some absolutes, but this issue isn’t as cut and dried as some would like it to be.norcal (b9a35f) — 9/22/2021 @ 11:37 pm
Clearly once the fetus passes through the vaginal canal, which sprinkles magic fairy dust on the glob of cells and then…poof! It’s alive!Hoi Polloi (121542) — 9/23/2021 @ 5:28 am
“When does the fetus become alive?”
Or, when does the fetus become a “person” owed Constitutional protection? The fetus is arguably in a different category than most other uses of the word “person” in Constitutional or legal terms. Yes, pregnant mothers killed can result in enhanced sentencing. Scientifically there is a clear continuum of life that argues that one stage is no less important than another. Also, there is no new information provided after conception….food and protection are required just like a new born. But the state’s inability to assume custody of the fetus prior to viability distiguishes this case from any other case where the state is asserting a need to protect a right. And technology…even with experimental sheep wombs….is no where near being relevant for 1st trimester fetuses….where most abortions occur. First trimester miscarriages happen….many times prior to implantation….and the woman even knowing. Legally this doesn’t trigger investigations….and doesn’t demand close state monitoring. Most people recognize the privacy of the matter…and though it is a tragedy for a couple struggling to conceive….society does view it differently from the death of an infant or toddler. That suggests a different status. Again, is abortion immoral? Yes, but not everything immoral is made illegal. Just like end-of-life issues…these are immensely personal questions where I question the intrusion of the blunt considerations of the state pre-viability.AJ_Liberty (a4ff25) — 9/23/2021 @ 6:06 am
Personhood and Constitutional protection are relevant only when the person is threatened by government action. A government may extend its protection to anyone and any thing, anywhere it has a legitimate interest. Does the government have a legitimate interest in ensuring a live baby is born? That is the threshold question. Whether a fetus is a person may be a moral question but it is a red herring as a legal question.nk (1d9030) — 9/23/2021 @ 7:01 am
13. Davethulhu (017f04) — 9/22/2021 @ 10:50 pm
Bu Texas courts could rule that you just can;t give anyone a right to sue.
Texas Right to Life doesn’t want this lawsuit.
https://www.wsj.com/articles/why-texas-abortion-opponents-arent-suing-dr-alan-braid-over-new-law-11632262448Sammy Finkelman (51cd0c) — 9/23/2021 @ 7:22 am
This is mine:
A little twist here is that, should the Supreme Court make even asmalll chhange in Row vWadde, and the abortion organizations don’t make any change from the previous policy, they could lose their constitutional defense.
And a lawsuit can be filed up to four years after the abortion, and the winner is not allowed to collect legal fees.
The whole idea it looks like secretly is for this law to be self-enforcing.Sammy Finkelman (51cd0c) — 9/23/2021 @ 7:22 am
I think a lot of this history is a lie and a fraud was perpetrated on the court. (in that there they claim that there was no moral objection to abortion until the late 19th century.)Sammy Finkelman (51cd0c) — 9/23/2021 @ 8:46 am
The term is in terrorem, Sammy. To scare people into doing or not doing something. A captious person might say that most laws based on the concept on deterrence are like that, but one as especially egregious as Texas’s can only exist in a judicial system which is slightly less primitive than the Taliban’s. Which Texas’s judicial system is. Below the level of the Taliban’s. At least they don’t have “$5,000 for dead bank robbers, not a penny for live ones” and Texas Rangers shooting cattle rustlers on sight anymore. That we know of, that is.nk (1d9030) — 9/23/2021 @ 9:06 am
I haven’t read the Vanguard essay yet. I will soon but you have nothing to “make up for,” Patterico. This time you were doing something important for work, and other times you have done important things for your family. Those things matter more.DRJ (02d0b8) — 9/23/2021 @ 9:08 am
Texan women, on the other hand, rightfully remain a point of pride for the state.nk (1d9030) — 9/23/2021 @ 9:09 am
You are a protector of women, nk. Let us try to do the same by protecting babies.DRJ (02d0b8) — 9/23/2021 @ 9:11 am
Abortion is Unconstitutional
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.
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.Rip Murdock (d2a2a8) — 9/23/2021 @ 9:14 am
The Court presents [the] 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.
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.
John Finnis is the Biolchini Family Professor of Law Emeritus at the University of Notre Dame. He has filed a amicus brief in Dobbs v. Jackson Women’s Health Organization.
Thank you, DRJ! You are also a point of pride for these comment threads as well as for Texas.nk (1d9030) — 9/23/2021 @ 9:14 am
This may or may not be a good law, but I think it is time for States to find ways to help babies. And doing that may mean we find ways to help mothers, especially single mothers. There must be other ways because it has been almost 50 years and I don’t think this is making better children, families or women.DRJ (02d0b8) — 9/23/2021 @ 9:16 am
I don’t like to make the law about anecdotes because it makes the issue about emotion instead of intellectual analysis. But it occurs to me that not many people know a woman who got an illegal abortion. I do.
My suitemate in college had an abortion in 1972. I didn’t know the details then but we knew it was illegal and done secretly. We might never have known but she had medical problems that night and needed help. She would not let anyone call an adult, which tells you all you need to know about her and our maturity. She eventually got better, but it was an awful 36 hours for her and us. We never wanted anyone else to go through that.
But what she did that day was about her convenience and guilt, not about her health and especially not her baby. IMO the law should not encourage that level of self-centeredness in men or women.DRJ (02d0b8) — 9/23/2021 @ 9:27 am
Having said that, the answer to me is not to make all abortion legal. All but the most extreme among us believe these are not babies being killed. We all believe they are more than cells at some point before birth. There is a moral component for me but the law needs to change because technology has changed.DRJ (02d0b8) — 9/23/2021 @ 9:32 am
All but the most extreme among us believe these areDRJ (02d0b8) — 9/23/2021 @ 9:35 am
notbabies being killed.
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19. SF: The whole idea it looks like secretly is for this law to be self-enforcing.
21. nk (1d9030) — 9/23/2021 @ 9:06 am
And the thing is, I don’t think that aborton, or aiding and abetting an abortion, is not a violation of the criminal law at all in Texas.
It’s a tort. A tort in which anyone can sue, whether they have any connection to the baby/fetus/embryo that got aborted or not. I think maybe they can be in its place. They get $10,000 and if they lose the case, they don’t have to pay legal fees.
I don’t know.
There are many things that people don’t do because of fear of liability. Close and even destroy tourist sites, for instance.
The Taliban once destroyed a tourist attraction in Afghanistan, but they did that on their own, within the threat of being sued.
https://en.wikipedia.org/wiki/Buddhas_of_Bamiyan The only thing different here is that fear of liability has been deliberately engineered so as to cause all people who perform abortions to stop doing those that are within the scope of the tort.
I wonder what else you could do using tort law.Sammy Finkelman (51cd0c) — 9/23/2021 @ 10:39 am
22. DRJ (02d0b8) — 9/23/2021 @ 9:32 am
That;s what the Mexican Supreme Court just did the other day, but the precedent has to be applied separately to each Mexican state.
Previously it was, a crime for the woman to obtain an abortion. And everybody has been thinking for years that that was an impossible position. It was the law in Mexico all the time!!
and they were prosecuted and sentenced to jail.
https://www.nytimes.com/2021/09/08/world/americas/mexico-abortion-access.htmlSammy Finkelman (51cd0c) — 9/23/2021 @ 10:46 am
Could a state pass a law saying that a pregnantKevin M (ab1c11) — 9/23/2021 @ 11:27 am
womanperson could not smoke cigarettes or imbibe alcohol after the nth week of pregnancy? Arguably there is a state interest in avoiding medical expenses for damaged children. How would the arguments be different than the abortion argument?
But Texas courts could rule that you just can;t give anyone a right to sue.
Again, the way to attack this is not via the “abortion right” but through the cockamamie and chaotic enforcement methodology. Essentially, the law substitutes mob action for government, which is kinda against the general flow of civilization and the Rule of Law.Kevin M (ab1c11) — 9/23/2021 @ 11:30 am
https://www.texastribune.org/2021/09/03/texas-republican-abortion-civil-lawsuitsSammy Finkelman (51cd0c) — 9/23/2021 @ 11:38 am
Of course environmental law and Medicare fraud are not a “fundamental constitutional right” as defined by the Supreme Court.Rip Murdock (d2a2a8) — 9/23/2021 @ 12:04 pm
I would like to see a law that allowed anyone to sue a politician for lying.Kevin M (ab1c11) — 9/23/2021 @ 12:14 pm
Of course environmental law and Medicare fraud are not a “fundamental constitutional right” as defined by the Supreme Court.
But they always could be.Kevin M (ab1c11) — 9/23/2021 @ 12:15 pm
#40 awaiting moderation for quoted bad wordKevin M (ab1c11) — 9/23/2021 @ 12:21 pm
“My suitemate in college had an abortion in 1972”
It’s tough. I’m guessing she was not married, had not yet completed her degree (so had no immediate career to leverage), and may not have had family who would have stepped up and helped financially and possibly to help raise the child. I’m guessing she wanted sex….not a baby….and was not ready financially, psychologically, emotionally, or socially….to go through the pregnancy and then either go through adoption or start being a mother. We shouldn’t romanticize the choice. Many people dream of having a baby….others dread it. Who should decide? How much skin do the deciders have in the game? There’s obviously no going back….I don’t envy the decision….and there will always be women in that situation…AJ_Liberty (ec7f74) — 9/23/2021 @ 2:33 pm
Off-topic: Appeals court strikes down sweeping order to house L.A.’s skid row homeless
A federal appeals court on Thursday unanimously overturned a judge’s decision that would have required Los Angeles to offer some form of shelter or housing to the entire homeless population of skid row by October.
>A three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that U.S. District Judge David O. Carter, who issued the homelessness order in the spring, failed to follow basic legal requirements.
The panel said most of those who sued L.A. city and county had no legal right, or standing, to bring the case. Carter deployed “novel” legal theories that no one had argued, and ruled on claims that no one had alleged and on evidence that was not before him, the 9th Circuit said.
Ouch. You would think that this would lead to a disciplinary action of some kind. Judge Carter is 77 years old and was appointed by Bill Clinton in 1998.Kevin M (ab1c11) — 9/23/2021 @ 3:28 pm
Many young people want sex with minimal consequences. IMO Roe and its progeny have been used by some States/politicians to make that happen. I don’t think that approach has made people’s lives (perhaps especially mothers’ and children’s) or society better, and it is time to try something new.DRJ (02d0b8) — 9/23/2021 @ 8:13 pm
FWIW she was wealthy and her family could have handled a baby or adoption, but the whole point of the abortion was to make sure her family never found out.DRJ (02d0b8) — 9/23/2021 @ 8:16 pm
Making abortion illegal is a difficult topic. Young people typically don’t see any downside from making abortion legal, and they see benefit from avoiding the dangers that come with back alley abortions. I certainly felt that way at the time. I was wrong.
Abortion is safe and legal but it is not rare. We are not better off making abortion legal because it has become accepted and easy.DRJ (02d0b8) — 9/23/2021 @ 8:22 pm
“but it is not rare”
However, the abortion rate (abortions per 1000 women age 15-44) has steadily fallen since 1979 and is at its lowest rate since Roe. This tracks with the number of pregnancies and births dropping, so people are having fewer babies generally. There are about 3.8M live births per year compared to around 0.8M abortions. Delaying marriage and more contraceptive use are likely the drivers.
I agree that abortion has always been the backup (and in some cases the primary) birth control. Is there any thought this will change by making medical abortion illegal and chasing the practice back to back alleys, homebrews, and out-of-state journeys (for those well off)? Whether a pregnant woman takes her pregnancy to term or not, there are physical, emotional, and sociological consequences. Is there any sense of collective guilt if a woman has serious medical consequences (strokes, infection, diabetes, depression, preeclampsia, etc.) after being compelled to take a pregnancy forward? It’s fair to ask the same of the post effects of a legal abortion.
It’s not too long ago that society was arguing about whether contraceptives should be available…..even to couples that were married. The debate is marvelously quaint by today’s standards. But were the prohibiters right or wrong? Polls suggest that most are still a bit skeptical about compelled motherhood. There are really no new arguments here…..AJ_Liberty (a4ff25) — 9/24/2021 @ 3:17 am
I don’t know but the Texas law doesn’t make abortion illegal until there is cardiac activity. Maybe the change will make self-managed abortions more dangerous or common, although I am not convinced medical abortions are everyone’s choice now. Self-managed abortions still exist for a variety of reasons. Perhaps the New law will make people more proactive about contraceptives or methods of pregnancy avoidance? If so, that is a good thing to me.
California is experimenting, too, by making it easier to keep abortions private from partners and family. I am glad to see different approaches tried. The results should be interesting and instructive.DRJ (02d0b8) — 9/24/2021 @ 8:17 am
DRJ (02d0b8) — 9/24/2021 @ 8:17 am
I don;t think it makes it illegal at all, or at least there is no criminal penalty.
It just makes it a tort.
Gov Abbott just signed a second law making use of abortion inducing drugs illegal after seven weeks. This one has criminal penalties.
https://www.theguardian.com/us-news/2021/sep/22/texas-abortion-inducing-drugs-law-greg-abbottSammy Finkelman (51cd0c) — 9/24/2021 @ 8:31 am
Thank you that correction, Sammy. I suspect the law will change the willingness of some abortion providers to act, whether the law makes it illegal or subject to civil action.DRJ (02d0b8) — 9/24/2021 @ 8:45 am
That confuses me. Are you simply satisfied with the status quo or do you really see no problems with abortion?DRJ (02d0b8) — 9/24/2021 @ 8:47 am
Try a poll of abortion survivers and people who were given up for adoption, and their children.DRJ (02d0b8) — 9/24/2021 @ 8:49 am
IMO polls like that demonstrate the drawbacks of majority rule and why our system also protects minority rights.DRJ (02d0b8) — 9/24/2021 @ 8:53 am
49. DRJ (02d0b8) — 9/24/2021 @ 8:45 am
It has already. It stopped them cold.
The law does allow any recovery for the loser for litigation costs, and they are not assured of winning in the end because the United States Supreme Court might change Roe v Wade to make not constitutional for a state to prohibit at least some of what now cannot be prohibited. And they have four years to sue.
I’m not sure how much abortion providers stand to lose. Is it $10,000 per abortion plus legal expenses? Or more?Sammy Finkelman (51cd0c) — 9/24/2021 @ 9:15 am