On Monday, we discussed how interpreting the Constitution from an originalist perspective reveals that there is no constitutional right to abortion. I concluded that post by challenging pro-choicers to put constitutionalism above ideology and demonstrate whether they recognize any areas where their agenda must yield to higher principles, such as judicial honesty.
In the interest of fairness and clarity, today we’ll turn that question around: what constitutional limits must pro-lifers recognize while pursuing our goals?
The first, obviously, is the prospect of pro-life judicial activism. As Justice Antonin Scalia told CNN’s Piers Morgan earlier this month:
Just as the pro-choice people say the Constitution prohibits the banning of abortion, so, also, the pro-life people say the opposite. They say that the Constitution requires the banning of abortion, because you’re depriving someone of life without due process of law.
I reject that argument just as I reject the other one. The Constitution in fact, says nothing at all about the subject. It is left to democratic choice.
Colonial laws at the time of the American Founding and the English common law preceding it generally recognized abortion as a crime, but the Constitution left it up to the states to define and punish most crimes. So a pro-life judge would be on very shaky ground if he tried to pull an anti-Roe and argue that the Constitution forbids states from allowing abortion.
Second, some pro-life legislative efforts have unfortunately relied on some of the same shoddy theory that the left employs. For instance, David Kopel at the legal blog Volokh Conspiracy explains that federal versions of the Partial-Birth Abortion Ban and Pain-Capable Unborn Child Protection Act have cited an expansive, activist interpretation of the Commerce Clause as justifying the legislation:
Any abortion provider in or affecting interstate or foreign commerce, who knowingly performs any abortion of a pain-capable unborn child, shall comply with the requirements of this title.
Obviously, getting an abortion from an abortionist within your own state isn’t “interstate commerce,” nor can it be said to “affect” interstate commerce in any concrete way the Founders would have recognized as applicable to the Commerce Clause. Ironically, this weakness is unlikely to spell either act’s doom because liberals wouldn’t dare undermine a precedent that is so vital to so many other aspects of their agenda.
But can those laws be upheld on other grounds? Does the Constitution allow the federal government to do anything about abortion? Fortunately, the answer is yes.
The Fourteenth Amendment forbids states from “depriv[ing] any person of life, liberty, or property, without due process of law” and “deny[ing] to any person within its jurisdiction the equal protection of the laws.” President Ronald Reagan noted that the amendment’s framer, Congressman John Bingham, declared his intention that its protections extend to “any human being.” The amendment empowers Congress to “enforce, by appropriate legislation, the provisions of this article.”
Now that we know without a doubt that the unborn are human beings, it follows that the Fourteenth Amendment gives Congress sufficient power to restrict abortion and even ban it entirely, on the grounds that the unborn cannot be denied the same protection against being killed that everyone else enjoys. And courts could obviously enforce whatever “appropriate legislation” the government enacted on the subject.
There are lines pro-lifers mustn’t cross while pursuing their goals, but the good news is that our goals are far more compatible with the Constitution than those of abortion advocates. That’s no coincidence, considering that the pro-life movement’s core principle – the equal rights of all human beings – is the same principle at the heart of the Constitution. Abortionism, by contrast, is an attack on that principle, and therefore cannot help but come into conflict with our founding documents.