How to Constitutionally Win

Pro-life sign in front of the Supreme Court in June 2014. (Jim Bourg / Reuters)

Over in First Things, John Finnis made the case that abortion is unconstitutional. You should read it. He bases his case on the 14th amendment, in particular on the first section. In my opinion, he strongly believes that the due process clause should also apply to the unborn when the original public meaning of “persons” was broad enough to include coloring as legal persons.

Ed Whelan has voiced his doubts here in NR and remains committed to Justice Antonin Scalia’s view that the best one can constitutionally hope for is that Roe v. Wade overturned or undermined at Supreme Court level Abortion law jurisdiction is being returned to states. And Joshua Craddock responded to Whelan.

The disagreement has turned into a bunch of useless snipers. I’m not going to link to these as some of them are clearly the result of too much alcohol or radicalization in a private chat room. But a number of critics of legal originalism or “Conservatism Inc.” have claimed that conservatives who have not yet given up originalism as a failure are demonstrating their bad faith or possibly their corruption.

These critics would lead us to abandon originalism as failure or nonsense and press for a court ruling that instantly recognizes the unborn child’s personality and immediately criminalizes any abortion while the Supreme Court oversees the state’s murder laws. Some proponents support this with the theory that the majesty of this change in the law would convince even many abortion advocates to change their minds, just as the shocking legal advances in same-sex marriage seemed to move public opinion.

Well, for what it’s worth, I am in favor of an “any good idea” strategy to stop abortion. I do not contribute my efforts to all but only to those I believe are the smartest or best suited, but I would welcome any positive contribution made by any of them.

I’m for people who believe in personality change and re-read the 14th change. I am for crisis pregnancy centers and sidewalk counseling. I am in favor of acting directly and crossing the boundaries of exposé journalism. I’m particularly interested in the direct, almost tailor-made personal interventions of groups like Let Them Live. I am for prayer and fasting. I am for all that can be achieved through pro-life feminism or pro-life atheism and even ecumenical events. I am in favor of trying to directly undermine abortion with the law and activism. I am in favor of undermining it more indirectly with good art that aims to direct our cultural deafness against unselected commitments.

Finnis’ case on the 14th Amendment has been part of the anti-abortion movement for decades. If I remember correctly, I believe our own Ramesh Ponnuru believes it rightly prohibits legal abortion. I do that too. One of the most important anti-abortion activist groups has spoken out in favor of either a reading of the 14th Amendment, which bans abortion, or the adoption of a “personality amendment” that clarifies this meaning and regulates it in a permanent way across the country.

The challenge is that this theory has even less support in the judiciary than originalism. Perhaps one day it will, but in the meantime, states trying to put worthwhile restrictions on abortion or personality laws are being hampered by the higher courts. They could be given more space if authority were returned to the states. If you believe that the millions of people trying to get Republican candidates to make the pledge are appointing originalist judges in the hopes of giving these states the relief and freedom of action they deserve on this matter , insincere, or some kind of conspiracy, you need help. Yes, the Republicans have been extremely slow on this, and yes, the Pro-Lifers have given them too much leeway to signal the cause. Fifteen years ago I was utterly desperate, but the flood of good laws in some states over the past decade has changed my mind. The appointment of Amy Coney Barrett to the Supreme Court gives me hope that despite having many elected Republicans, even if they try to deceive pro-lifers, we could achieve some victories despite them.

And I doubt the judiciary power of the law to act so dramatically against the flood of public opinion in the United States on this matter. By the time the Obergefell ruling was passed, opinion in favor of same-sex marriage had already gone from being extremely marginal to near-tossing a coin. The other side is not only assertive, they are extremely smart with how they move forward. We have to be like that. Ireland’s eighth amendment, passed not long after Roe and made for fear of a similar decision in Ireland, was worded to make it very clear that the state had no right or legitimate authority to give a legal abortion. This amendment was made by referendum after decades of being undermined by the people themselves.

But my stance here is similar to that of other critics of right-wing conservatism. You accuse us that “liberalism won all its battles with you”. I shrug my shoulders. As far as it is true, it also won all of its battles with you. If we want to change American law on this issue, it is a matter for all Americans, not just one faction or sect within that faction.

I would be surprised if one of our strategies works, given the state of affairs. I expect more daunting reversals and pleasant surprises. But we have to keep pushing. The real problem that the current originalist approach will encounter is the American people, their expectations and their ambitions. Where those expectations and ambitions go against the law – such as laws restricting marijuana – the law’s teacher dwindles. A claim cannot eliminate this problem. It has to be met manfully and creatively.

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