The radical future of the pro-life movement
Pro-lifers are abandoning originalism. Look out.
For the past several decades, the progressive nightmare on abortion rights has involved a conservative majority on the Supreme Court overturning Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). This would immediately return the issue to states, where many legislatures would ban the procedure, leaving women's reproductive rights secure only in the most liberal regions of the country.
But this is by no means the most radical pro-life scenario.
Conservatives now have a 6-3 majority on the high court. We don't yet know if these justices are willing to strip abortion rights from the federal Constitution, sending decision-making back to the states for the first time in 48 years. But among conservative intellectuals, this is now the milquetoast option, with another line of argument fast gaining ground.
The more extreme argument goes like this: The 14th Amendment gives "equal protection of the laws" to all persons. Genetics as well as ultrasound technology tell us that fetuses and even embryos are human beings and hence persons. The 14th Amendment therefore protects unborn life, rendering every state law permitting abortion unconstitutional. Instead of sending abortion back to the states, pro-lifers should thus be working to convince conservative justices to use the equal protection clause to ban abortion outright, from conception on, throughout the entire United States.
That is where the pro-life movement is headed — and the rest of the country better be ready for it.
Now, to be clear, a Supreme Court decision along these lines is nowhere in sight. As far as I know, none of the current justices affirm this reading of the equal protection clause. Yet it is undeniable that pro-life debate has shifted in this direction over the past couple of decades, just as the Republican Party has moved further right and become less interested in trying to win electoral majorities. If both trends continue, the judges who emerge in the future from the conservative movement's formative legal institutions are likely to be much more open to such claims than the justices currently serving on the high court, whose views were formed decades ago during a very different political moment.
To get a sense of the long-term trajectory of conservative constitutionalism, consider the ideas and career of Robert Bork. Thirty-four years ago, Bork was considered so far right that his nomination to the Supreme Court by Ronald Reagan went down to defeat in the Senate when six Republicans joined with 52 Democrats to oppose him. Bork's position on abortion — that Roe was a jurisprudential travesty that deserved to be overturned so that the issue could once again be decided democratically at the state level — is quite likely the view of all six conservatives on the high court today. The only question is whether these justices are willing to break from 48 years of precedent to overturn Roe and Casey outright, or whether they would prefer, as a matter of institutional restraint, merely to allow states to nibble away at the margins, enacting piecemeal restrictions on abortion a little at a time, leaving Roe and Casey technically intact but increasingly neutered.
The story of how Bork's position moved from unacceptably radical in 1987 to dominating the nation's highest court by the end of the Trump administration is an important one. A revealing chapter in that story took place when I worked as an editor at First Things magazine in the early 2000s. Back in 2002, a little-known assistant professor of political science at St. Ambrose University in Davenport, Iowa, named Nathan Schlueter pitched an article making the case that the equal protection clause of the 14th Amendment applied to fetuses, rendering abortion unconstitutional in all cases.
This argument was not new to the magazine. As a journal aimed at advancing pro-life arguments in the public square, First Things published a range of views against abortion. Some members of the magazine's inner circle, including Robert P. George and Hadley Arkes, were sympathetic to this highly unorthodox reading of the 14th Amendment. But the journal's founder and editor-in-chief, Richard John Neuhaus, considered it too far out of the conservative-movement mainstream to stand in our pages unchallenged. So he invited Bork to write a response and ran the two pieces together, with Bork's evisceration of Schlueter's arguments getting the last word.
Bork (who died in 2012) was an originalist. Just as he had long argued that there was no possible right to abortion in the Constitution because those who wrote and ratified the document did not envision it containing any such right, so the 14th Amendment couldn't be construed to protect the lives of the unborn because those who wrote and ratified it showed no sign of thinking the amendment applied in utero. For Bork, the originalist restriction on judicial interpretation was the only thing preventing Supreme Court justices from acting like black-robed tyrants willing and able to substitute their own personal predilections for the text of the Constitution and the outcome of democratic deliberation.
But today's conservatives are on the whole less concerned about the dangers of judges countermanding democracy — though the change isn't universal. On the one hand, renowned legal philosopher John Finnis has an essay in the April issue of First Things, titled simply "Abortion is Unconstitutional," that updates the view that Schlueter articulated 18 years ago. On the other hand, Ed Whelan of the conservative Ethics and Public Policy Center has penned a highly critical response in National Review that defends the originalist side of the dispute with arguments very similar to those Bork deployed back in the early 2000s.
That makes it sound as if the debate has been frozen for the past two decades. But that isn't the case. For one thing, the 2021 version of First Things sees no need to pair Finnis' essay with a rebuttal. For another, whereas in 2003 the personhood side of the argument was advanced by an unknown scholar, today it's defended by a man as eminent in his own field of legal philosophy as Bork was in his (and Finnis' arguments build on the formidable intervening scholarship of others). As for the argument itself, I'm convinced that Whelan's defense of originalism comes out on top, but as he himself concedes, Finnis nonetheless manages to do some serious damage to those who have long dismissed the 14th Amendment argument — and First Things has already run a sharply written rejoinder to Whelan making the case that "John Finnis is right."
But the bigger change can be found in the larger context of the American right. Very few conservatives rose in defense of Schlueter's arguments back during the first term of the George W. Bush administration. That's because on the high court, in the Federalist Society, and in conservative-movement think tanks and magazines at the time, originalism was the only game in town. But today, the intellectual energy is almost entirely on the other side, with those who favor "common good conservatism" eager to use of state power to impose theologically grounded ideals of a Highest Good, even in the face of democratic resistance. These idealistic and ambitious conservatives believe that if they wield power with confidence and moral righteousness, the people (or at least enough of them) will ultimately go along with the program.
Think of it as a potent synthesis of comprehensive moral certitude, Trumpian pugnaciousness, and a broader Republican indifference to winning popular majorities. Put those trends together and you get a drift toward the position that conservative judges should use every power at their disposal to expel abortion rights from both the Constitution and the country at large, even if it pits them against a tidal wave of furiously hostile public opinion.
It's too early to know how likely it is that such ideas will become the new conventional wisdom on the right, ultimately rising all the way onto the Supreme Court. But it's not too early to note their ascendancy and do everything we can to stand against them.