JUDGE NAPOLITANO: Abortion and the Constitution

“The fetus has an interest in having a life.”
—Supreme Court Justice Samuel A. Alito Jr., Dec. 1, 2021

Last week’s oral argument in the Supreme Court about abortion was both humdrum and arcane. Humdrum because we already knew where the nine justices stand on the morality of abortion. Arcane because the questions and answers were largely not about abortion, but about stare decisis, the legal doctrine that calls for settled law not to be lightly disturbed. What brought this about?

Mississippi has enacted into law a statute that prohibits abortions after the 15th week of pregnancy. That statute directly conflicts with two major Supreme Court opinions on abortion, Roe v. Wade and Planned Parenthood v. Casey.

The 1973 Roe decision establishes a trimester system during which the state’s interest in protecting the life of the baby in the womb does not come into being until the third trimester of pregnancy. More importantly, Roe holds that the states may not ban abortions prior to fetal viability, roughly at the end of the first trimester, around 23 weeks.

The Casey opinion, 19 years after Roe and with a largely different membership in the court, upheld Roe’s no-abortions-until-viability standard and added a new rule that prohibited the states from imposing any undue burden on mothers seeking abortions.

Thus, Mississippi — and Texas, which prohibits abortions after six weeks, right behind it — is effectively asking the court to overrule both Roe and Casey. The Mississippi argument states that because the Constitution is silent on abortion or any kind of killing, its Framers must have intended to leave regulation of those subjects to the states. The counterargument is that women have personal autonomy over their bodies and that autonomy trumps any state interest at any time.

When the Roe court established the bright line of viability as the point before which no state could prohibit taking the life of the baby in the womb, it did so without legal justification or scientific basis. We know that from the posthumously revealed notes of Justice Harry Blackmun, the author of the Roe decision.

Yet, an unwanted pregnancy is just as unwanted the day before viability as it is the day after. Viability has been the bright line for 48 years, and during that time, over 62 million abortions have been performed in the U.S. in reliance upon it.

So, can the court change the bright line, and if so, should it? That was the essence of the argument last week. But that argument largely misses the constitutional point. There is nothing constitutional about viability. Justice Blackmun made it up out of thin air, and six other members of the court accepted it, just as Justice Sandra Day O’Connor made up “undue burden” out of thin air in Casey.

The constitutional point here is whether the baby in the womb is a person. Roe itself concedes in the text of the opinion that if the baby is a person — with an interest in having a life, as Justice Samuel A. Alito Jr. put it during oral argument — then Roe falls.

That’s because the 14th Amendment prohibits the states from taking life, liberty or property from any persons without due process — meaning a jury trial at which the state would need to prove fault. Such a demonstration would be impossible in the case of a baby in the womb. As well, the same amendment also requires equal protection of the laws.

Since all states protect life by enacting laws against homicide, they must enforce those laws equally so as to protect all persons from being murdered, irrespective of age or physical dependency.

The linchpin to the application of 14th Amendment jurisprudence to abortion is the concept of personhood. If the fetus is a person, the mother and her physicians may not lawfully kill the fetus any more than they could lawfully kill the father of the fetus. This is why the debate over viability misses the point. The court should have passed over the argument about viability and moved into the only constitutional issue here — personhood.

Is the fetus in the womb a person? Of course she is. The growing baby has human parents and all the genomic material within her tiny body to develop and mature into a post-natal child. The fetus, through a guardian, can sue and be sued; inherit assets and even bequeath them. These truisms and legal principles were known to the Framers when they wrote the Constitution and to the drafters and ratifiers of the 14th Amendment.

This business of denying personhood can be dangerous beyond compare. In 1857, the Supreme Court infamously held in Dred Scott v. Sandford that African Americans were not persons, and thus they could not sue for legal protection and could be brought as slaves into free territory.

The German Nuremberg laws in the 1930s hatefully declared that Jews were not persons and thus had no legal rights. We all know where these horrific principles brought us — a war that killed more Americans than all other wars combined and a holocaust of catastrophic proportions.

Do the justices have the moral courage to recognize babies in the womb as persons? I doubt it, though my college classmate Justice Alito seemed to be going in that direction. Yet, making such a declaration — broad and sweeping so as to cover all humans at all times and under all circumstances — would put to bed once and for all the debates over the rights of all, from babies in the womb to foreign detainees in American foreign jails.

All offspring of human parents are endowed with natural rights that they may enjoy and for the exercise of which they can require governmental protection. This is the only valid moral purpose of government, absent unanimous consent of the governed — to protect the lives, liberties and property of all persons.

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