Yesterday, the Supreme Court denied certiorari in Doe et al. v. McKee (No. 22-201), an appeal from the Rhode Island Supreme Court presenting squarely the question of whether unborn persons are entitled to Fourteenth Amendment protection. The petitioners, including pro-life organizations, had challenged a 2019 Rhode Island law that permitted abortion prior to viability and, importantly, repealed an earlier law that established that “human life commences at the instant of conception and that said human life at the instant of conception is a person within the language and meaning of the fourteenth amendment of the constitution of the United States . . . .” The Supreme Court’s denial of certiorari has been reported as a setback for the personhood argument. No doubt it is.
One can read the certiorari petition if one wants to get the full story, but Rhode Island courts ultimately affirmed the trial court’s ruling upholding the 2019 law because they held that the unborn plaintiffs (Baby Mary Doe and Baby Roe) lacked standing because they were not persons under the Fourteenth Amendment. The petitioners urged the Supreme Court to grant certiorari primarily to address the Fourteenth Amendment personhood argument, advanced notably by John Finnis and Josh Craddock (and others besides). In other words, the Rhode Island case presented directly the question deferred in Dobbs, namely whether there are any positive protections for the unborn under the Constitution.
The petitioners followed Finnis and Craddock’s lead, framing their discussion in originalist terms, discussing the historical meaning of the word “person” (as opposed to narrower terms, like “citizen”) in Anglo-American jurisprudence, including in the thought of John Bingham, the primary drafter of the Fourteenth Amendment. For my part, the petitioners make a compelling argument that “any person” as it would have been understood in the 1860s was broad enough to encompass any human being. The petition also does a masterful job marshaling the various decisions of courts from the Supreme Court on down to state courts finding that unborn children are persons with rights of various kinds. In other words, the original public meaning of “any person” should be read in conjunction with the tradition of various court decisions holding that unborn children are human beings with rights.
However compelling the argument may be in originalist terms, the Rhode Island attorney general declined on September 6 to file any response to the petition for certiorari and yesterday the Supreme Court denied the petition summarily. Court watchers naturally will caution reading too much into any summary denial of certiorari, but the Fourteenth Amendment personhood argument was present even during the oral argument in Dobbs. While Justice Alito’s opinion for the Court leaves the matter open, Justice Kavanaugh’s concurrence (and questions he asked during oral argument) indicates his strong disagreement with the argument.
The originalist argument of the petition did not seem to sway enough justices to grant certiorari—or even to direct the Rhode Island attorney general to file a response. Under such circumstances, one does wonder what the advantage of not articulating a broader argument, rooted in two thousand years of jurisprudence (as opposed to fifty or so) would be. The parties and their counsel, for all I know, could be committed to originalist argument, and that’s as may be. However, for litigants and lawyers open to classical argument, there may well be few reasons not to make a full-throated classical argument.
At any rate, Justice Kavanaugh was the crucial fifth vote for the Dobbs opinion. If one disregarded the sober advice of Court watchers, one might assume, therefore, that Justice Kavanaugh’s distaste for the Fourteenth Amendment argument is an important factor here. Justice Kavanaugh argued in his separate opinion that “[o]n the question of abortion, the Constitution is . . . neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.” Recognizing that “any person” in the Fourteenth Amendment includes unborn children would make Justice Kavanaugh’s preferred outcome—letting the states decide for themselves what to do about abortion—extremely difficult.
Additionally, Justice Amy Coney Barrett was quoted in the context of a memorial piece about Judge Laurence Silberman by David Lat as saying (for some reason) “I am not a fan of common-good constitutionalism.” While the debate over common-good constitutionalism is separate in many respects from the debate over personhood under the Fourteenth Amendment, I suspect that the two are linked (somehow) in the minds of many observers. One could really throw caution to the wind and make some deductions about what Justice Barrett thinks about the Fourteenth Amendment argument. One could also really cut loose and ask whether declining to consider the sound originalist argument of the Rhode Island petitioners is not judges imposing their subjective policy preferences on the Constitution.
Such speculation will have to remain speculation for now. However, I am far from sure that the question of personhood can be deferred forever, not least since some states are passing laws like the one Rhode Island repealed. While the Constitution may be silent on the question of abortion (I am far from sure it is), “any person” is contained in the text of Section 1 and it seems highly implausible that Congress meant to leave to the several states the definition of “person.” Indeed, allowing states to affect by legislation the definition of “person” for the purposes of the Fourteenth Amendment seems liable to undercut significantly the entire thrust of the Civil War Amendments.
Pat Smith
