Addressing the ‘Originalist’ Argument for Abortion

Published Date: November 2, 2021 | Topics: Civil Rights and Liberties, Constitutional Issues, Politics and Current Affairs

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WASHINGTON, DC – NOVEMBER 01: Anti-abortion demonstrators rally outside the U.S. Supreme Court on November 01, 2021 in Washington, DC. On Monday, the Supreme Court is hearing arguments in a challenge to the controversial Texas abortion law which bans abortions after 6 weeks. DREW ANGERER/GETTY IMAGES

[This article was co-authored by Robert P. George and John Finnis.]

For the first time ever, a state has asked an originalist Supreme Court to overturn Roe v. Wade. Given the current composition of the Court, many now suspect Dobbs v. Jackson—scheduled to begin oral arguments next month—will finally repudiate the idea of a constitutional basis for legalized abortion.

But is there an originalist argument for keeping in place some right to abortion? In an op-ed for The Washington Post, Professor Aaron Tang argued that there is. According to Tang, William Blackstone—a “preeminent” authority for originalists—”wrote that abortion is unlawful only after a ‘woman is quick with child’ because that is when life ‘begins in contemplation of law.'” Tang concludes that, at the Founding, “abortion was legal so long as it was performed before quickening, the first fetal movement that occurs at 15 or 16 weeks.” There was, in other words, a “right to abortion” until quickening. So an originalist Supreme Court today could find, right here, “a middle ground” between Roe‘s rule that states cannot ban elective abortion until viability (24 weeks) and allowing them to ban it from conception: allow states to ban abortion, if they choose, but only after “quickening.”

The op-ed adapts an argument that Tang made at greater length in an academic article last month. Two weeks before the op-ed appeared, we had published a 72-page paper pointing to more than 50 serious historical errors in that article, which has since seen several revisions. Tang contested none of those errors, but accepted many of our charges silently, ignored many, confessed to a couple and replaced some with new ones awaiting yet another refutation. The Post op-ed relies on the errors that remain.

The argument that Blackstone establishes a common-law right to pre-quickening abortion is wrong. So is the claim that—at the time they ratified the 14th Amendment establishing “equal protection of the laws” for all persons—most states only opposed abortion after quickening, if at all.

States began to prohibit pre-quickening abortion in the 1820s, and accelerated through the 1840s and 1850s. By 1858 a majority of states had statutes criminalizing abortion at all stages. By the end of 1868, the year the 14th Amendment was ratified, a good three-quarters of the states had them. (By 1883, all but two or three, and eventually all, adopted such laws.) Tang’s claim that at ratification 21 of 37 states “recognized the lawfulness of pre-quickening abortion” is simply false.

The twists and turns of this argument matter because they help reveal what states understood “person” to mean when they ratified the 14th Amendment. When the 14th Amendment said “nor shall any state deny to any person…the equal protection of the laws,” the word “person” had a settled public meaning for its drafters and ratifiers. That meaning certainly included, among “natural persons,” any child living in the womb—and among “artificial persons,” corporations.

The Supreme Court, after nearly 20 years, accepted that corporations are entitled to equal protection under the 14th Amendment; it now should accept that Roe was wrong to hold that unborn children are not entitled to the same. The state of Texas made this argument in Roe v. Wade, but the Roe majority rejected it on weak grounds, while justices opposed to Roe have just ignored it. We filed an amicus brief in the pending abortion case to revive the argument.

The amendment’s settled original public meaning indeed depends in large part on Blackstone’s great treatise. “Persons” is a key term, organizing the whole work—and thus the whole frame of legal thought, for the legally informed Founding generation and ratifying generation alike.

So is it true that Blackstone “wrote that abortion is unlawful only after a ‘woman is quick with child,'” as Tang contends? No. The partly quoted sentence from Blackstone says something very different in context: that under the old common law, “if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb…whereby… she is delivered of a dead child, this…was…homicide or manslaughter. But at present it is…[only] a very heinous misdemeanour.” Here Blackstone says nothing whatsoever about abortion being lawful before a woman is “quick with child.” He deals with that question on two other pages, pointing to two other rules about elective abortions.

On one, Blackstone lists examples of felony murder—expounding a doctrine that makes one liable for murder when one “intends to do another felony, and undesignedly kills a man.” And here he identifies abortion—at any stage—as a kind of felony, capable of grounding a felony murder conviction: “if one gives a woman with child”—not “quick with child”—”a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it.” Blackstone here cites Matthew Hale, the great English 17th-century scholar chief justice: “if a woman be with child”—again, not “quick with child”—”and any gives her a potion to destroy the child within her, and she takes it, and it works so strongly that it kills her, this is murder, for it was not given to cure her of a disease, but unlawfully to destroy her child within her, and therefore he…must take the hazard, and if it kill the mother, it is murder.”

Here Blackstone states unequivocally that abortion measures taken at any stage of pregnancy are always “unlawful,” even though early abortions are not also indictable (i.e., subject to criminal penalties) unless the abortion drugs, pressures or instruments happen to kill the mother or (as the other page of Blackstone’s treatise says) result in the child dying after birth.

All American lawyers unhesitatingly accepted these rules. So any talk of a right to abortion at the Founding, and of pre-quickening abortions being permissible until the reforming state statutes of 1829-1883, is fantasy.

Indeed, common law applied numerous other legal penalties to abortion-related activity. All contracts for abortion services were void for illegality. Every place used for abortion was liable to summary closure as a disorderly house, on pain of criminal penalty for non-compliance. Advertising or publicly offering abortion services was criminal. Conspiracy was always a possible charge in relation to any of these activities. All of this is totally incompatible with regarding abortion as a legal right.

Tang’s errors about the common law lead him to read into state statutes terms and principles that are not there. His theory that a common-law right to pre-quickening abortion prevailed over plain statutory language asks the Supreme Court, in effect, to believe that for over 70 years, while most states read “any woman” or “any pregnant woman” to mean any woman or any pregnant woman, other states read those very same words as meaning only any woman more than 15-16 weeks pregnant—and that no law book or anti-abortion activist anywhere ever noticed! It also suggests, for example, that indictments for abortion in Texas had to say “a woman quick with child” even though decade after decade the court-annotated Penal Code indictment forms said “a pregnant woman.”

We’ve seen this argument before. In 1971, Cyril Means, an abortion activist and law professor published an article about a supposed common-law right to abortion. Full of fantastical misrepresentations, it was soon exploded by scholars. But before the article’s falsehoods could be exposed, Roe took Means as its sole legal-historical authority, citing him seven times.

Not again, please.

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