The Original Meaning of the 14th Amendment Supports a Constitutional Right to Abortion

The leak of a draft opinion written by Justice Samuel Alito of the Supreme Court indicates that a majority of the justices are preparing to strike down Roe v. Wade (1973) and thus deny that there is a constitutional right to abortion.  

The possibility of doing this raises three questions.  The first is a moral question:  Is it morally wrong for a mother to abort her pregnancy, because this is murder?  The second is a constitutional question:  Does the Constitution secure a mother's right to abort her pregnancy?  The third is a political question:  What are the political consequences of striking down Roe v. Wade?  In a previous post, I have answered the first and third questions.  

THE MORAL QUESTION

I have argued that the moral question can be understood in the light of the evolutionary psychology of moral judgments about the parental care of children.  The more a zygote, an embryo, a fetus, or a newborn resembles a human person, the stronger the moral claim it makes on our evolved moral feelings of care for children.  This combines reason and emotion: we must reason about the natural process of human embryology and child birth and the natural moral emotions that might be evoked by that process.  Since zygotes or embryos do not look like human persons to us, we do not feel the same moral revulsion against aborting them that we feel against killing a newborn child.  That explains why for thousands of years, abortions early in pregnancy were not punished as murder.  Even today, among the most fervent pro-life people, who profess to believe that human life begins at conception, most of them do not want women who abort early in pregnancy to be punished as pre-meditated murderers.

Notice that even in Alito's opinion, he does not say that abortion is murder, because if he had, he would have had to say that abortion is unconstitutional because it would violate the constitutional right to life of unborn persons.  Instead, he leaves this to the state governments to decide.

THE POLITICAL QUESTION

Previously, I have answered the political question by predicting that if the Supreme Court were to overturn Roe v. Wade, that would become a huge political blunder by the Republican Party, because it would outrage the majority of American voters who want to preserve the constitutional right to abortion, which then would become a political weapon for the Democrat Party to defeat the Republicans in the mid-term elections and beyond.

My prediction is now being confirmed.  Why don't we see Republican leaders celebrating the overturning of Roe?  Why aren't they saying:  You see, our Republican-appointed justices are doing exactly what we promised they would do?  No, instead, Mitch McConnell and Fox News are saying the leaking of Alito's draft opinion is a trick by some Democrat who wants to provoke public anger against Republicans!

What this shows is that Republican leaders have pretended to want to overturn Roe in order to win the votes of the minority of Americans who want that, but they have hoped this would never happen, because of the backlash it would provoke from the majority of Americans who want Roe upheld.

Gallup polls have consistently reported large majorities in favor of preserving the constitutional right of mothers to choose abortion.  In 2021, 58% of Americans opposed overturning Roe; and only 32% supported overturning it.  In 2007, it was 66% in favor and 25% opposed.  That's why McConnell and Fox News are so worried.

If the Supreme Court does finally issue Alito's majority opinion overturning Roe in June, then the Congress has the constitutional power to overturn this decision.  In Section 5 of the 14th Amendment, it is said that "the Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."  This allows the Congress to pass legislation declaring that the original meaning of the 14th Amendment recognizes a constitutional right to abortion.  If Republicans prevented the passage of such legislation, the Democrats could use this against Republican candidates in the mid-term elections.

THE CONSTITUTIONAL QUESTION

I have not yet written a post on the constitutionality of the right to abortion.  But I have written one arguing that the original meaning of the 14th Amendment supports the Obergefell decision that there is a constitutional right to same-sex marriage.  I can make a similar argument for the Roe decision.

I should emphasize, however, that I agree with Alito that the Court's reasoning for its conclusion in Roe was sloppy and unpersuasive in trying to ground the right to abortion in the Due Process Clause of the 14th Amendment.  But incorrect reasoning can often support correct conclusions.  And that's what happened in Roe.  It is possible to develop some correct reasoning about the original meaning of the Equal Protection Clause and the Privileges or Immunities Clause that supports a constitutional right to abortion.  

Here my thinking has been much influenced by Jack Balkin (2005, 2007, 2011), a professor at Yale Law School who expounds what he calls "living originalism" in the interpretation of the Constitution.  He argues that the traditional opposition between the "living Constitution" approach and "originalism" is a false dichotomy because they are actually two sides of the same coin.  Asserting a constitutional right has no legitimacy if it is not grounded in the original text and principles of the Constitution.  But the original meaning of the constitutional text goes beyond the original intent and original expected application of those who wrote and ratified the text.

Like Balkin, I would ground the constitutional right to abortion in the original meaning of the text and principles of the 14th Amendment rather than the original intent and original expected application of those who drafted and adopted the 14th Amendment.  The 14th Amendment does not specifically say that there is "a constitutional right to abortion."  And there is no evidence that the framers of the 14th Amendment intended or expected that this Amendment would be interpreted as supporting a constitutional right to abortion.  But then neither did they intend or expect that the 14th Amendment would be interpreted as supporting a constitutional right to interracial marriage, as happened in Loving v. Virginia (1967).  And yet most of us would agree that the Loving decision was correct, because we can see that there is a good argument for saying that state laws prohibiting interracial marriage violate the original meaning of the 14th Amendment's text and principles.

The text of the Constitution includes both enumerated powers and rights and unenumerated powers and rights.  Some of the enumerated powers and rights are so clearly specified that there can be no debate about their original meaning.  For example, the specification that the President must be at least 35 years old is so clear that there is little controversy about it.  But some of those enumerated powers and rights are stated as general concepts that are more difficult to interpret.  For example, the original meaning of the right to the "the freedom of speech" in the First Amendment is open to some debate as to what exactly is included in "freedom of speech."

The unenumerated powers and rights are stated as abstract principles that are even more difficult to interpret.  That the Constitution protects rights that are not specifically enumerated in the Constitution is made clear in the 9th Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."  The language of "retained by the people" suggest natural rights that people have prior to government.  I have written about this in my post on how the Lockean political philosophy of the Declaration of Independence is implicit in the Constitution, particularly in the 9th and 14th amendments.  

This was made clear by Representative John Bingham in 1866 when he first proposed the 14th Amendment, and he said that this amendment would give the federal government the power "to protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State."  Notice that Bingham did not specify exactly what those "inborn rights" were.  Similarly, Senator Jacob Howard in 1866 said that the privileges and immunities protected by the 14th Amendment "cannot be fully defined in their entire extent and precise nature."

The original meaning of the text of the 14th Amendment is expressed in abstract principles of justice--such as "the privileges or immunities of citizens of the United States," "life, liberty, or property," and "the equal protection of the laws."  Throughout the history of the United States, Americans have participated in a continuing discussion--including ordinary citizens, elected representatives, presidents, and judges--about how to interpret the original meaning of this text and how to apply it to the changing circumstances of the times.

The original meaning of the constitutional text goes beyond the original intent and original expected application of those who framed and adopted the text.  For example, those who framed and adopted the language of "equal protection" in the 14th Amendment assumed that this would not disturb the common law coverture rules, under which married women gave up their common law rights under the principle that their legal identity was merged into their husband's.  In his 1873 concurrence in Bradwell v. Illinois, which upheld a general prohibition on women becoming members of the Illinois Bar, Justice Bradley explained: "it is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule.  The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.  This is the law of the Creator.  And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases."  But now we can see that the common law rules of coverture were mistaken in assuming that men adequately represented women's interests.  And we can see that a legal prohibition on women becoming lawyers violates the original meaning of "equal protection of the laws" in the 14th Amendment, even though this was not the original intent and original expected application of the amendment.

When the 14th Amendment was ratified in 1868, most states had laws that criminalized abortions throughout the pregnancy.  There is no evidence that anyone at the time expected that the 14th Amendment would make these laws unconstitutional.  In his dissenting opinion in Roe v. Wade, Justice Rehnquist argued that this proved that the 14th Amendment was not originally intended to establish a right to abortion.  But this conflates original intent and original meaning.

Just as today we can see that laws prohibiting interracial marriage violate the original meaning of the 14th Amendment, we can also see that laws criminalizing abortion violate the original meaning of "privileges and immunities" and "equal protection."  Laws that criminalize abortion force women against their will to submit their bodies to the strains and risks of pregnancy and childbirth, and they require women against their will to become mothers with all the responsibilities that come with motherhood.  Criminalization of abortion thus denies women the liberty to choose whether or not they want to endure a pregnancy and become mothers.

Critics of the right to abortion argue that this right denies the rights of the unborn.  But we must consider whether the unborn have constitutional rights that take precedence over the rights of the mother.  There can be no right to abortion if the unborn are constitutional persons with their own rights.

Actually, none of the justices in Roe v. Wade and none of the justices in any of the abortion cases since Roe has ever claimed that the unborn are constitutional persons.  It's hard to find any text in the Constitution that would support this.  The Fifth Amendment says that "no person . . . shall be compelled in any criminal case to be a witness against himself."  How could a zygote or a fetus be compelled to testify against itself?

Section 1 of the 14th Amendment says: "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."  Does this mean that unborn "persons" are not eligible to be citizens?  Or, more likely, does it assume that all persons are born somewhere, and those born in the United States and those born elsewhere but subsequently naturalized are citizens?

Even if the unborn are not persons, they have the potential to become persons--that is, individual human beings--and consequently the state can take some interest in protecting potential human life.  The abortion cases have allowed for this by allowing state governments to regulate and even prohibit abortions once the unborn potential for human life has become evident, particularly after the point of viability.  This allows for a balance between the mother's freedom of choice early in the pregnancy and the value of potential human life later in the pregnancy.

But this recognizes that while the mother is a person with all the constitutional rights of persons, the unborn is not a person, although we might rightly give some value to the unborn as potential persons.

REFERENCES

Balkin, Jack, ed. 2005. What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision. New York: New York University Press.

________.  2007. "Abortion and Original Meaning." Constitutional Commentary 24:291-352.

________.  2011.  Living Originalism. Cambridge: Harvard University Press.