Constitutional Persons: An Exchange on Abortion
Schlueter, Nathan, Bork, Robert H., The Human Life Review
Readers of First Things should by now be well-acquainted with the heated national debate-in part inspired by these very pages-over the role and legitimacy of the modern Supreme Court, armed with the power of judicial review, in a country that proclaims itself to be self-governing. Under the influence of a progressive jurisprudence the modern Court has issued controversial and innovative rulings on topics ranging from criminal due process to school prayer, rulings that often conflict with both the text and context of the Constitution, and with the history and traditional practices of our nation. But perhaps no issue better illustrates-and indeed magnifies-this conflict than abortion. Roe v. Wade and its progeny not only challenge the legitimacy of the Court, with their highly partisan and tendentious reading of the Constitution, they challenge the legitimacy of the entire government, a government that tolerates, and often even encourages, the mass destruction of those human beings who are most innocent and defenseless.
It is surprising, therefore, that on this most central constitutional and moral issue a preponderance of pro-life advocates and legal scholars continually misinterpret the Constitution. According to them, a proper reading of the Constitution would reject the concept of a privacy right to abortion, and thus return the nation to the pre-Roe status quo in which the decision of when, whether, and how to regulate abortion was left to the states. In offering this "restoration interpretation," they ignore or reject the proper interpretation, which would extend the protections of the Fourteenth Amendment to unborn persons. This is what I will call in this essay the "unborn person interpretation." They continue to do this despite the fact that both the majority in Roe and the appellants to the case conceded that if the personhood of the unborn could be established, "the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment."
To gauge the pervasiveness of the restoration interpretation among life advocates, one need only consult these pages. Forty-five leading pro-life advocates, including Gary Bauer of the Family Research Council, James Dobson of Focus on the Family, Clarke Forsythe of Americans United for Life, Wanda Franz of the National Right to Life Committee, and Ralph Reed of the Christian Coalition, signed a much heralded joint "Statement of Pro-Life Principle and Concern" published in First Things in 1996 in which the primary legal complaint was made that Roe "wounded American democracy" by removing the issue of abortion from "democratic concern." The statement suggested two legal remedies: first, the Supreme Court could reverse Roe, returning the issue to the states; second, the nation could pass a constitutional amendment that would extend Fifth and Fourteenth Amendment due process protection to unborn persons. The statement does not even hint at the possibility of a Supreme Court ruling that would extend due process and equal protection to unborn persons. The First Things statement seems to reflect the unanimous opinion of those Justices on the Supreme Court who have urged reversing Roe, not one of whom has attempted to make or even respond in their opinions to the unborn person interpretation.
However well-intentioned, the arguments of the restoration advocates are usually grounded in an epistemological skepticism that is alien to normal constitutional interpretation and harmful to the political morality on which free government is based. While I don't object to a constitutional amendment that would extend special protection to unborn persons-especially since such an amendment would presumably lodge protection for the unborn beyond the discretion of partisan courts, and also dispose of any potential problems with respect to state action-such an amendment is constitutionally superfluous. The issue of protecting the basic rights of persons from hostile or indifferent state governments was constitutionally resolved almost one hundred and fifty years ago in the Fourteenth Amendment, purchased with the blood of hundreds of thousands of American lives in the awful crucible of the Civil War. …