How the Supreme Court Should Approach Dobbs v. Jackson Women's Health Organization

Stephen Kershnar

The Constitution Does Not Protect Fetuses

Dunkirk-Fredonia Observer

November 29, 2021

 

            This Wednesday, the Supreme Court will hear Dobbs v. Jackson Women’s Health Organization concerning Mississippi’s abortion law.

Mississippi banned abortions performed after the first 15 weeks of pregnancy. The law does not permit abortion in the case of rape or incest but permits it when there is a medical emergency or severe fetal abnormality. The 15-week period is odd. A fetus begins to have a heartbeat after 6 weeks, forms a brain after 6 weeks, and – on one influential account - does not become conscious until 24 weeks. It is unclear what happens at 15 weeks.

            Other states have also passed other pro-life laws. The Texas Heartbeat Act prevents abortions after fetal heartbeat, which usually occurs 6 weeks after conception. Georgia banned abortions after 6 weeks. The three states’ laws conflict with Roe v. Wade (1973), a landmark Supreme Court case that held that a woman has a right to an abortion up to 24 weeks because fetuses up to that time are not viable. A fetus is viable when it can survive outside the womb.

            One issue is whether the Constitution protects fetuses. There are two provisions that someone might think protects the fetus. The Due Process Clause says, “[No state shall] deprive any person of life, liberty, or property, without due process of law.” The Equal Protection Clause says, “[No state shall] deny to any person within its jurisdiction the equal protection of the laws.” Emphasis added. The issue here is in part whether “person” refers to fetuses. Oxford University’s C’Zar Bernstein argues that the Due Process Clause is less relevant because, in the context of abortion, the life-takers are private citizens rather than the state. He also notes that the argument over abortion does not concern procedure.

            The most plausible way to way to interpret the Constitution involves originalism. Originalism asserts that the meaning of a Constitutional provision was set at the time it was passed. The idea is that Constitutional provisions have meaning, and this meaning persists over time. This can occur only if the meaning is set when it was originally passed. On different interpretations, the meaning of a provision is fixed by the authors’ or ratifiers’ intention, the ordinary meaning of the language to the public when it was passed, or its inherited common-law meaning. On this last view, the law incorporated the common law – specifically, English-judge-made law – because it used common-law words and phrases.

            The meaning of “person” should be understood in common law terms because it – along with other terms such as “cruel and unusual punishment” – was intended and understood to be a term of art, that is, a word whose meaning tracked specific legal meaning rather than ordinary meaning. One reason for this is that the Constitution’s authors and ratifiers thought about and wrote the Constitution with common-law meanings in mind. Another reason for this is the way in which language works in specialized fields. Consider, for example, how commerce, science, and sport use terms of art.

            Bernstein argues that the common law set the meaning of person according to the Born Alive Rule. This rule states that a human being becomes a person only after live birth. This can be seen in English common law regarding homicide (homicide applied only to the killing of a born human being), tort law (no liability for pre-natal injury), and inheritance (a human being may inherit only if he is born). This matters because the 14^th Amendment’s Due Process and the Equal Protection clauses used some of the same language as the 5^th Amendment’s Due Process Clause, language that came from the British common law.

            If this common law interpretation is correct, then the Constitutional term, “person,” does not refer to a fetus. It still might be the case that as a matter of constitutional law, states have a compelling interest in protecting fetal life and that the ban on abortion is a necessary means by which to do this, but this involves the sort of moral reasoning that originalists hesitate to engage in.

            Consider the moral debate over abortion. It comes down to three issues. (1) Is the fetus a person in the metaphysical sense? That is, were we ever fetuses? (2) Does the fetus have a moral right to inside the woman? (3) If the fetus does not have a right to be inside the woman, may the woman kill it as a way of protecting her body against invasion? That is, is an unwanted pregnancy a body-invasion similar to a rape? These philosophical issues are outside of the Supreme Court’s expertise and ones that it botched in the past. Perhaps the court must address these issues in deciding what the Equal Protection Clause means, but then it seems to blur the distinction between interpreting and making law. That is, addressing (1) to (3) appears to be legislating.

            If the common-law interpretation is correct, then professors – for example, Oxford University’s John Finnis – who argue that the Constitution requires that abortion be made illegal because the Constitution protects “persons” - are mistaken because fetuses are not Constitutional persons. In addition, if the common-law interpretation is correct, then the Justices should be wary of putting too much weight on precedent - especially Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) - because the Court decided these decisions without acknowledging that a fetus is not a Constitutional person and because it did not show its moral reasoning, particularly with regard to issues (1) to (3). In addition, its focus on viability is best seen as a political compromise rather than a good faith attempt to interpret the Constitution.

            Instead, the Court should do one of two things. It should engage in explicit moral reasoning regarding women’s and fetuses’ rights. Alternatively, it should declare that such reasoning is legislating and hold that Constitution does not address the issue. The issue would then get kicked back to the states.