One of the objections to extending Fourteenth Amendment protections to unborn children is that it would be impossible for the Supreme Court and lower courts to meaningfully enforce such a ruling. Ed Whelan raised this objection in his initial response to John Finnis. Josh Craddock, Finnis, and Whelan published further replies and sur-replies. Most recently, Ramesh Ponnuru expressed his agreement with Finnis’s view on the Fourteenth Amendment, but argued that only Congress can enforce these protections. Finnis and Craddock convincingly explain, in broad strokes, how a Supreme Court ruling would translate into concrete legal protections for the unborn. While I largely agree with Craddock and Finnis, I would like to offer a few supplemental observations.
(1) The primary objection from a legal perspective is that courts do not have the power to mandate the types of government action needed to protect unborn children from abortion—namely, legislation and prosecution. First of all, it is important to keep in mind that Fourteenth Amendment personhood for the unborn would immediately result in the invalidation of any statutes that fund or facilitate abortions. So there would be a clear and concrete benefit before we even get to the more difficult question of whether and how courts can mandate affirmative government action.
Regarding legislation, Finnis argues that the Equal Protection Clause would require states to extend the application of existing statutes (homicide or feticide laws, for example) to cover abortion. This would be accomplished through court orders enjoining the discriminatory enforcement of these laws. (While states often react to findings of discriminatory enforcement by scrapping the challenged statute altogether, it is inconceivable that any state would take its homicide statute off the books). The Equal Protection Clause would be violated by (i) statutes that facially discriminate against the unborn (for example, California Penal Code 187, which defines murder as the “unlawful killing of a human being, or a fetus, with malice aforethought” and then includes a subsection expressly exempting abortion) or (ii) statutes that are neutral on their face but are enforced in a discriminatory manner (which the Supreme Court has recognized as unconstitutional since Yick Wo in 1886). This fits squarely within the Supreme Court’s Equal Protection jurisprudence for other constitutionally protected classes. Finnis surmises that, faced with orders enjoining discriminatory enforcement of existing statutes and regulations, states would then have the option of replacing the default arrangement with separate regulatory regime protecting the unborn (which would be subject to judicial review).
But what about the risk that some states will simply refuse to enforce these prohibitions against abortion? It is difficult to come up with a theory that could justify an injunction requiring prosecutors to indict particular offenses. (Although the recent attempt to prevent the government from voluntarily dismissing its prosecution of Michael Flynn might be a source for potential ideas!) Yet courts can still command a great deal of action just short of filing indictments. The example of civil rights consent decrees in the law enforcement context is instructive. A number of consent decrees are currently in place in cities like Los Angeles, Newark, New Orleans, and Ferguson. Pursuant to these consent decrees, police departments are required to comply with a detailed remediation program subject to the oversight of a court-appointed independent monitor and ultimately the court itself. Since a consent decree has the same force as a judgment, violations of the consent decree are punishable by contempt sanctions. A recent trend in consent decrees has been to require police to remedy discriminatory lack of enforcement by requiring law enforcement to affirmatively investigate certain types of crimes, like domestic violence crime. This is exactly the type of court-mandated action that Finnis’s critics say is impossible. (For more on the Equal Protection implications of non-enforcement, see this article (from a different ideological perspective).) The New Orleans consent decree, for example, requires increased staffing for the domestic violence crime unit, enhanced coordination with the prosecutor’s office, and detailed reporting of statistics about arrests, prosecutions, and convictions. The obvious effect of such requirements will be to force the government to prosecute domestic violence crimes. There is no reason why similar remediation measures could not be used against law enforcement agencies that refuse to protect the unborn.
(2) The practical objection merits less serious discussion. Courts have not shied away from issuing forceful remedies and exercising exacting supervision to vindicate the protections of the constitution, most famously in the desegregation context. In addition to the law enforcement consent decrees noted above, today there are many examples of far-reaching injunctions and continuing judicial supervision in the environmental, prison, and employment law contexts (to name a few). These types of continuing injunctions are common to the point of being routine. It is quite obvious, therefore, that courts could exercise these same types of powers in order to enforce the constitutional protection of the unborn—and there is no reason why pro-lifers should consider unborn children any less deserving of an energetic judicial response than victims of other injustices.
(3) Legal theories and strategies can always benefit from a dose of realism. Seeking legal protection of the unborn through the Fourteenth Amendment certainly will not be easy (and I am not aware of anyone suggesting it would be). But accepting reality also means acknowledging the enormous powers of the judiciary today—particularly in the context of civil rights. Pro-lifers should not be afraid to use those powers to protect the unborn. And they should do so without fear that they are sullying themselves through the use of illegitimate means. After all, the equitable power of today’s courts is not a novelty, even if it is often deployed in novel contexts. Equity has its origin in the English Court of Chancery, which drew upon canon law (and ultimately Roman law) to provide flexible remedies in instances where rigid (often procedural) rules would result in injustice. What could be more noble than deploying this ancient and venerable power to vindicate a fundamental command of the natural law, the protection of innocent human life?
Yves Casertano
Image: Illustration of the English Court of Chancery in the 19th century.
