John Finnis’s recent piece in First Things, “Abortion is Unconstitutional,” has sparked a great deal of controversy in conservative legal circles in the short time since it was published. In his piece, Finnis argues on originalist grounds that the Fourteenth Amendment prohibits abortion, and that the Supreme Court should therefore reverse Roe v. Wade and declare abortion unconstitutional. (This argument is similar to one given earlier by Josh Craddock.) Finnis argues that abortion is precluded by the original public meaning of “person” as used in the Fourteenth Amendment’s Equal Protection Clause or its Due Process Clause. One might be forgiven for thinking that such an argument, from such a man, in such a publication would be entirely uncontroversial in pro-life circles.
The controversy came, however, after Ed Whelan responded. (Josh Craddock responded to Whelan in defense of Finnis, and Whelan responded to Craddock, but this piece will focus on the initial response since that was the cause of the controversy.) Whelan said that he “fully agree[d] with Finnis that ‘prohibiting the killing of the unborn is a matter of simple justice to the most vulnerable among us.’” He further admitted that Finnis’s argument was better than Roe. But he then proceeded to state that it got the Fourteenth Amendment all wrong, due in large part to the lack of explicit discussion of abortion among the drafters of the Fourteenth Amendment and further, because if the Fourteenth Amendment indeed obliged states to prohibit abortion from conception, the American states without such prohibitions would have recognized such an obligation by banning it following the passage of the Fourteenth Amendment. His position is that the Constitution, including the Fourteenth Amendment, is silent on abortion and therefore the issue should be reserved to the states. Further, he argues that courts lack the capacity to enforce a positive obligation of protection against the states. (The enforcement point deserves a longer reply than can be given here. Suffice it to say for now that the courts have been able to enforce nondiscrimination obligations in a great number of other settings.)
Whelan’s argument met with immediate criticism on Twitter. Whelan seemed surprised, and indeed, angered by this response, which, Twitter being what it is, was not always very temperate nor very respectful. Many other conservative commenters came to Whelan’s defense with bromides about civility and hand-wringing about younger social conservatives taking their eyes off the ball when victory was at hand. Indeed, many seemed to object to the Finnis/Craddock argument, despite it being entirely originalist, on the grounds that it was a stalking horse for smuggling in the entire natural law tradition. (We should be so lucky, but there is no reason to think Finnis or Craddock is insincere, and Craddock is on the record as being an originalist).
Ordinarily this sort of squabbling is best left on Twitter where it belongs, but there are a few points that bear closer examination.
First, the priorities of much of the entrenched conservative movement appear dangerously out of line with their professed beliefs. If you believe, as Whelan sincerely does, that abortion is the murder of untold millions, why reject a more than plausible argument, framed in your preferred judicial philosophy, just so that you can reserve matters to the individual states? Although it bears emphasising that Whelan himself is vehemently anti-abortion, it is no wonder that many who aren’t familiar with him wonder which he cares about more, states’ rights or ending abortion.
This leads to the next point: there’s something strangely tone-deaf about saying a first-order evil such as abortion should be a matter of states’ rights. This is made all the more acute by the fact that Finnis and Craddock argue very plausibly and persuasively that abortion is just such an evil as was prohibited by the original public meaning of the general and sweeping language of the venerable Fourteenth Amendment. A reply of “this is an issue of states’ rights” in such a context is, even if not insincere, at the very least tone-deaf. And indeed, more than that, there is something deeply contradictory about simultaneously saying that abortion is a first-order evil, that the Constitution leaves abortion to the states where many will opt for unrestricted abortion, and that the Constitution is just. A system that leaves the fate of the “most vulnerable among us” up to a mere show of hands is by that very fact an unjust system. The “states’ rights” reply echoes not only Stephen Douglas but also Mario Cuomo’s assertion that while he himself was personally opposed to abortion, he believed every woman should choose for herself.
Furthermore, the response makes short-term strategy opposed to long-term strategy. Set aside the originalist debate for a moment. As a matter of strategy, it may well be that given the current set of Justices, it is prudentially advisable to advance the “reserved to the states” argument first and foremost. This would be, after all, better than the current precedent. But strategically, there is no reason to stop there, nor should the pro-life movement be satisfied with such a limited victory.
It’s worth stressing what a limited victory this really would be. Reserving the matter to the states would certainly mean that every blue state would have permissive abortion laws, for one thing. For another, President Biden has promised that should the Supreme Court reverse Roe, he would immediately ask Congress to pass legislation making Roe the law of the land. The argument sometimes given that the commerce clause would prevent this is, ironically enough, a much more far-fetched argument than any made by Finnis or Craddock. The situation that would result from Whelan’s proposed argument would also lead to a very unstable equilibrium where half the states allowed (and even encouraged) abortion, while the federal goverment flipped back and forth between mandating and forbidding it, depending on which party controlled Congress and the White House. More than that, even if abortion is left to the states, the states that ban abortion will not be left alone: enormous corporate and private power will be brought to bear to pressure them, as happened with the religious freedom law in Indiana, etc.
Returning to the point above, nothing about the long-term strategy of using the Fourteenth Amendment to outlaw abortion prevents the strategic and prudent deployment of more modest arguments when and as appropriate. If Whelan had made the strategic argument that Finnis’s argument was unlikely to succeed with the current Justices and therefore a more modest argument ought to be considered, it is unlikely there would have been any controversy. Instead Whelan insisted that Finnis’s argument was wrong about the Constitution in principle. But even this strategic argument is limited. The reality is that what was far-fetched yesterday is dogma tomorrow. As Josh Craddock put it on Twitter: “There are numerous examples of ‘fringe theories’ that made their way into the legal and popular mainstream, such as the originalist commerce clause challenge to the ACA and the argument for an individual [Second Amendment] right adopted in Heller.” Examples could be multiplied almost ad infinitum.
Finally, most relevant to the project here at Ius & Iustitium, this is yet another example of the deficiency of positivist legal reasoning. Originalism has had 50 years to overturn Roe. Not only has it not done so, but it has failed to stop a steady stream of defeats for social conservatives, culminating in Bostock, where textualist reasoning was itself used to give the defeat. Now Whelan and many others are telling us that real originalism requires sending abortion back to the states. As the eminent jurist Anton Chigurh once put it, “If the rule you followed brought you to this, of what use was the rule?”
