Wednesday, May 11, 2022

The Equal Protection Clause of the 14th Amendment Supports a Constitutional Right to Abortion


David Mills has made some interesting comments on my post arguing for there being a constitutional right to abortion in the 14th Amendment's "equal protection" clause.  He thinks a better constitutional text for this would be the Third Amendment (on the quartering of soldiers in someone's house), which implicitly suggests a right to privacy that could include the right to have an abortion.

I thought I should respond to one of his comments in a separate post.  Here's the comment:

"The equal protection clause is just one more amendment that tries to put a round peg in a square hole. Equality implies a comparison between two similar things. In the case of a woman applying to membership with the bar she can be compared with men. In the case of homosexual couples, they can be compared with heterosexual couples.
"But in the case of pregnancy, what is the thing you would compare it to? Well nothing, unless you want to compare a fetus with a tumor, which as you point out does not have the possibility of becoming a person like a fetus does.
"So that is why I think the 3rd amendment should be looked at as by far the best amendment to support abortion. No other amendment makes as good a case for the right to privacy.
"And I really don't like the idea of abortion being a state matter. Under amendment 3, it is difficult to see how a state could whittle away the right."

For my response, I can quote the words of Jack Balkin ("Abortion and Original Meaning," 322-23):

"One might argue that, because only women can become pregnant, laws restricting abortion do not violate sex equality, because they do not treat women differently from similarly situated men.  There are no similarly situated men.  The principle of equal citizenship, however, is not limited to the requirement that laws be formally equal in this way.  The relevant question is not whether men and women are different in their capacity to bear children, but the difference that this difference should be allowed to make in terms of women's status in society and their enjoyment of basic rights of citizenship.  The text of the Fourteenth Amendment, and principles underlying the Amendment stand for the proposition that the state may not create or maintain a lower caste of citizens, impose second-class citizenship, or effect subordination of a social group through law.  When the state uses women's capacity to become pregnant as a lever to subordinate women, assign them a second class status in society, or deny them full and equal enjoyment of their rights of citizenship, it violates the equal citizenship principle.  It may not use pregnancy as a device to deny women equal citizenship or subordinate women precisely because only women can get pregnant."

So, for example, I assume that we would all agree that prohibiting women from admission to law schools and from practicing law, as was done in the 19th century, was a denial of their equal rights.  Now, in many law schools, there are as many women as men; and women have excelled in the practice of law.  

But for many of those women, their success as students and lawyers in achieving equality with men in their careers has depended on their being free to delay motherhood when it would interfere with their careers.  For many of these women, if they had been denied the right to abortion and thus forced to become mothers early in life, and forced to have many children, that would have prevented them from achieving success in the legal profession equal to that of men.  Thus, laws that criminalize abortion tend to reinforce the subordination of women to men, and in this way, they violate the Equal Protection Clause of the Fourteenth Amendment.

I have written previously about how women in a liberal society naturally desire to become a mother, but they need to balance this desire with other natural desires.  When women pursue professional careers, and they want to have children, they have to decide how to organize their lives to balance one desire with another.  In the United States, most women (80% to 90%) will become mothers before they reach the end of their reproductive lives; but many of these women decide to delay motherhood until they have become established in their professional careers.  For many of these women, the freedom to decide on abortion is an important part of their decision-making, which is taken away from them by laws forbidding abortion.


At some points in his opinion overturning Roe, Justice Samuel Alito resorts to a rhetoric of deception that shows he is writing as a political partisan advancing a policy preference rather than as a judge interpreting the law.

It is true, as he says, that the "right to abortion" is never explicitly mentioned in the Constitution.  But he admits that, of course, the Supreme Court has recognized many constitutional rights that are not explicitly enumerated in the Constitution.  The Court must do this to comply with the 9th Amendment's declaration that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

The question then is how does the Court identify those rights "retained by the people" but not enumerated in the Constitution?  The answer must be that these rights can be inferred as implicit in the original meaning of the constitutional text.  But then, again, the Court looks for some help in interpreting that original meaning.

Alito's answer is to appeal to a doctrine stated in the opinion in Washington v. Glucksberg (1997).  The question in Glucksberg was whether a Washington state law criminalizing assisted-suicide for terminally ill patients was an unconstitutional violation of a person's right implicit in the Due Process Clause of the 14th Amendment to make fundamental decisions about their life and health.  The Court unanimously said no.  Their reasoning was that the Court recognized rights as implicit in the Fourteenth Amendment only when these rights were "so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment" (727).

Alito appeals to this language in Glucksberg in arguing that there is no constitutional right to abortion because it is not "deeply rooted in our history and traditions."  (See page 5 of his opinion.)

But in the oral arguments on the Dobbs case in December, when Alito made this argument, one of the lawyers pointed out to Alito that this passage in the Glucksberg opinion has a footnote--note 19 on page 727--identifying the decision in Roe v. Wade as one of the many decisions of the Court that rightly identified rights "deeply rooted in our history and traditions," because in the common law, abortion was not a crime when it was done before "quickening"--that is, before the mother felt the fetus moving in her womb.  The states that began towards the middle of the 19th century to criminalize abortion at every stage of pregnancy were violating this deeply rooted common-law tradition of allowing abortion before quickening.  (See pages 75-76 of the oral arguments.)

That note 19 in Glucksberg also identifies the right to use contraceptives (Griswold) and the right to interracial marriage (Loving v. Virginia) as examples of constitutional rights that are not explicitly enumerated in the Constitution, but which can recognized as implicit in the original meaning of the Fourteenth Amendment, just like the right to abortion.

Notice that in his opinion (page 5), Alito remains completely silent about this point--that he was distorting the decision in Glucksberg by claiming that its standard of constitutional interpretation would support overturning Roe.  This kind of deceptive distortion of the law is characteristic of a political partisan who has a policy preference against abortion rather than a judge interpreting the law.

This is one of many flaws in Alito's opinion that reveal it to be an exercise in raw political power rather than an impartial interpretation of the law.


Anonymous said...

"When the state uses women's capacity to become pregnant as a lever to subordinate women, assign them a second class status in society, or deny them full and equal enjoyment of their rights of citizenship, it violates the equal citizenship principle."

Abortion REALLY assigns the fetus to second class status, no status actually, and denies them all their rights, even to life..

Larry Arnhart said...

As I have indicated in my previous post, a fetus is not a constitutional "person." The Constitution speaks of "persons" many times in ways that would make no sense for fetuses.

georgesdelatour said...

Poland has the most restrictive abortion laws in the EU. Abortion is only permitted when the pregnancy is the result of a criminal act or when the woman’s life or health is at risk.

Yet, within the EU, Poland is second only to Latvia for the number of women who hold managerial jobs; 41.8 % of all Polish managerial posts are held by women. 37% of new companies are set up by women. In Poland - as in virtually all first world countries - women are generally more academically qualified than men.

Larry Arnhart said...

Poland has one of the lowest birth rates in the world. According to the UN, Poland ranks 189th out of 200 countries!

Polish women have no need for abortion because they so rarely become pregnant.

Anonymous said...

"As I have indicated in my previous post, a fetus is not a constitutional "person.""
"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."

This is the most laughably pathetic argument ever. Are the citizens allowed to use their own reason to determine that a fetus IS a person? Are they then allowed to use the democratic process to express their conclusion that it is therefore entitled to rights?

Larry Arnhart said...

No justice of the Supreme Court has ever said that constitutional personhood begins at conception.

But you have the right to persuade Congress to define constitutional personhood as beginning at conception (under its 14th Amendment, Section 5, power). That would prohibit all state governments from allowing abortion at any stage of pregnancy, and it would require that women having abortions to be punished as murderers (violating the right to life of zygotes).

I encourage you to persuade Republican leaders to campaign for this. It would be very interesting for our political debate. It would also be very helpful for the pro-choice advocates.

Larry Arnhart said...

I assume that you would want to persuade the Congress to say that all the zygotes produced by IVF are persons, so that women will be compelled to have all these zygotes implanted in their wombs and brought to term, lest they be charged with murder. Is that right?

Anonymous said...

No need for only conception being the standard (nothing wrong with it either). You can reasonably be convinced that heartbeat, ability to feel pain, or viability are the relevant criterion.

Anonymous said...

Also, your consequentalist argument that we cant treat fetuses as persons because that would morally require us to bear these inconvenient burdens is disgusting and reprehensible.

Larry Arnhart said...

Viability? I agree.

Heartbeat? There can be no heartbeat until there is a fully formed heart, which comes about 18-20 weeks into pregnancy. Prior to that, there might be some electrical activity in the cardiac cells, but no heartbeat, because there are no valves.

Ability to feel pain? Does that require a fully developed brain and nervous system? Non-human animals feel pain. So are you saying that all animals have constitutional personhood? Are you an animal liberationist?

Anonymous said...

I'll throw it right back at you: birth is completely arbitrary since it can be induced willy nilly by drugs, viability isn't really acceptable either since it changes with technological advancement, not anything in the nature of the fetus, and "ability to reason" would mandate infanticide up to, what, age 4 or so. Please run on THAT position. Truly conception is the only reasonable position.

Anonymous said...

Also, "But you have the right to persuade Congress to define constitutional personhood as beginning at conception (under its 14th Amendment, Section 5, power)." I'm glad you concede it is an issue for the legislature, not the judicial philosopher kings.

Larry Arnhart said...

I never said "ability to reason."

"Truly conception is the only reasonable position." As I have said, I am encouraging you to persuade the Congress and the Republican Party to adopt that position. The pro-choice people will be happy to debate the issue on those terms.

Anonymous said...

Some pro-choicers do argue for "ability to reason" and I was addressing their point. Since your "looks like us" is a joke I'm just going to interpret your stance as admitting conception is the only defensible position but are willing to murder for convenience and since the victims can't complain or defend themselves. Since you've conceded it is an issue for the legislature I guess you're against Roe V Wade and in favor of overthrowing it.

Larry Arnhart said...

If "conception is the only defensible possible," then you can prove that by persuading the American public and the Congress to define constitutional personhood as beginning at conception, so that every zygote is a person, and all abortion and all IVF procedures are murder. You can start by persuading all Republicans to campaign on that issue in the mid-term elections. You should also persuade the Republicans to attack all of the Republican appointees on the Supreme Court who have failed to define personhood as beginning at conception. I will be fascinated to see what happens.

Anonymous said...

I want to apologize for my tone. I got heated and nothing good can come from arguing on the internet while heated. But my point is that I've been lead to the conclusion that conception is the only acceptable solution partially for the reasons we have discussed here: all the other positions stink. This conlusion was reached through good-faith reasoning, even if it open to rational debate. Then, that in a democracy people should be allowed to see their honest views represented and adopted into law if they can. Separate issue whether the debate should happen at the state or federal level.

Anonymous said...

And so I assume you're going to write a retraction called "The Constitution does not support a right to abortion" because the constitution protects the right to life for all persons and whether a fetus is a person is a matter for the people, and preferably the states, to decide.

Larry Arnhart said...

What are you saying? Are you saying that reasonable people cannot disagree about the original meaning of the Constitution? Are you saying that the original meaning is whatever the majority of the American people believe to be the original meaning must be true? Right now the majority of the American people do not believe a zygote is a constitutional person, because the majority believe that Roe v. Wade should be upheld. Does that mean that you must be wrong? I would say no. Rather it means that you will have to try to persuade people that they are wrong. Similarly, if the people were to change their minds and say that a zygote is a constitutional person, I would have to try to persuade people that they are mistaken. That's what happens throughout American constitutional history: interpretations of the Constitution have changed many times, and the debate continues. The Supreme Court shows this whenever it overturns its own past decisions, and thus tells us that they are often wrong and therefore open to challenge.

Anonymous said...

No, my point is that the Constitution protects the right to life for all persons. Whether the fetus is a person is up to the legislature; the legislature is within the bounds of the Constitution to decide that the fetus is a person. If the legislature decides a fetus is a person then the killing of a fetus would be the killing of an innocent person. Killing an innocent person is a violation of its right to life and would be prevented by the Constitution. Therefore, since the Constitution doesn't prevent the legislature from declaring that a fetus is a person, and if the fetus is declared to be a person the Constitution would justifiably prevent the killing of a fetus, it is within the bounds of the Constitution to justifiably forbid the killing of a fetus. If the Constitution could justifiably forbid the killing of a fetus, then it doesn't protect the right to kill a fetus per se. The killing of a fetus is abortion. Therefore the Constitution doesn't protect the right to abortion.

Larry Arnhart said...

To persuade the Congress that the original meaning of "person" in the Constitution is fertilized human egg, you will have to go through the Constitution and show how every use of the word "person" was originally meant to include all fertilized human eggs. For example, you will have to argue that all fertilized eggs must be counted in the census for the purpose of apportionment of representatives. All of the fertilized eggs in IVF clinics will have to be counted. The count will fluctuate according to the number of spontaneous abortions.

Larry Arnhart said...

If you haven't already noticed it, you might want to read the amicus curiae brief in the Dobbs case by John Finnis and Robert George arguing that the 14th Amendment was originally understood to identify fetuses as persons:

Anonymous said...

Your terms are acceptable.

MP said...

Professor Arnhart,

I am commenting on your most recent blog post on this topic, though my response is primarily to your first post.

I find your equal protection argument compelling; I especially wonder about the protection of property rights. In the Dobbs draft, Alito argues that abortion has no basis in our country's deep legal history.

Do you think that this is true, especially considering the influence of Locke on the founders? The Lockean derivation of property right seems to rest on bodily autonomy, in fact. Do you think this should be considered in the opinion? I was struck by the omission, but perhaps political theory is not usually considered important in constitutional interpretation.


Larry Arnhart said...

In Anglo-American common law, abortion before quickening was never a crime. To me, that looks like a "deep legal history" for the right to abortion.

I agree with your suggestion that the Lockean conception of self-ownership as the ground for rights to life, liberty, health, and property would seem to embrace the right to abortion. Surely to force a woman to bear a child is a violation of her bodily liberty.

Anonymous said...

But it's super-duper against the fetus' bodily autonomy and right to life.

MP said...

I agree, and I find Alito’s argument about doctors being considered murderers when they killed the mother with an abortion suspicious, because it could simply refer to post-quickening abortions. I wonder if Alito is arguing in good faith.

Larry Arnhart said...

Early in his opinion, Alito says that the "assertion that abortion was probably never a crime under the common law" is "plainly incorrect" (2). But then elsewhere he says that abortion was never a crime under the common law "in at least some stages of pregnancy," that is, before quickening (15-16, 17-19, 20-22, 24, 26, 44, 69). So there is some evasiveness here.