Abortion and the Fourteenth Amendment

“Assessing the Presidential Candidates on Abortion, Supreme Court,” by Robert George, includes this intriguing passage:

Many believe that we need a constitutional amendment to overturn Roe v. Wade. However, Section Five of the Fourteenth Amendment expressly empowers the Congress, by appropriate legislation, to enforce the guarantees of due process and equal protection contained in the Amendment’s first section. As someone who believes in the inherent and equal dignity of all members of the human family, including the child in the womb, would you propose to Congress appropriate legislation, pursuant to the Fourteenth Amendment, to protect human life in all stages and conditions?

Political reasons aside, why not? George asked his question of Michele Bachmann, Herman Cain, Newt Gingrich, Ron Paul, and Mitt Romney at the Palmetto Freedom Forum on September 5, 2011. Ron Paul’s objection is of special interest. According to George,

Ron Paul responded to my question not by embracing judicial supremacy, but by denying that the 14^th Amendment authorizes Congress to legislate to protect the unborn. Interestingly, Paul himself has a perfect pro-life voting record–in Congress. In his view, however, the abortion question is one that the Constitution leaves ultimately to the individual states, not the national government.

In his exchange with me, Congressman Paul argued that reading the 14^th Amendment broadly enough to empower Congress to protect the unborn would be inconsistent with the 10^th Amendment–the constitutional provision reminding us that powers not delegated by the Constitution to the federal government are reserved to the states and the people. But the Constitution, in its 14^th Amendment, plainly does delegate to Congress power to enforce its guarantees of due process and equal protection. Congressman Paul, like the other Republican candidates, believes that the unborn, no less than those human beings at later developmental stages, are members of the human family–in other words, persons–entitled to the same protections as others. And he is right to believe it.

I am hard-pressed to understand Paul’s objection. If the Constitution grants a power to the central government, then the central government possesses that power. Should it be up to the States, individually, to decide the abortion issue? If it should, then why not leave slavery up to the States, individually? In other words, why should the Fourteenth Amendment any less binding than the Thirteenth Amendment? It seems to me that Paul is more enamored of “States’ rights,” than he is of liberty. And make no mistake about it, abortion is anti-libertarian.

P.S. Paul Linton, a pro-life lawyer and special counsel to the Thomas More Society, enters a dissent:

Conclusion

The Supreme Court’s abortion decisions can be overturned only by an overruling decision of the Court itself or by a federal constitutional amendment. Congress has no power under § 5 of the Fourteenth Amendment to define the unborn child as a “person” for purposes of § 1 of the Amendment, when the Court has held (in Roe) directly the opposite. Removal of the Supreme Court’s appellate jurisdiction over abortion cases would not affect the binding force of those decisions and would actually prevent a differently constituted Court from overruling Roe and Casey. The proposals made to the Republican presidential candidates at their “Tea Party” forum do not offer a realistic means of overturning Roe v. Wade and do not deserve the support of the pro-life community.

Roe can be overturned only by a decision of the Court itself overruling Roe or by a federal constitutional amendment–neither a federal statute enacted under § 5 of the Fourteenth Amendment defining the word “person” as used in § 1 of the Amendment, nor a statute removing the Supreme Court’s appellate jurisdiction over abortion cases would have that effect.

This is where “departmentalism” comes in. William J. Watkins Jr. explains departmentalism by way of example:

Departmentalist theory is perhaps best examined in the context of President Jefferson’s approach to the Sedition Act. Upon entering office, Jefferson ordered the cessation of all federal sedition prosecutions and he pardoned those who had been convicted. In 1804, Jefferson received a letter from Abigail Adams criticizing his handling of the Sedition Act controversy. Mrs. Adams argued that because the judges had upheld the Sedition Act, President Jefferson had overstepped his constitutional bounds when terminating prosecutions and pardoning offenders.In a polite response, Jefferson reminded Mrs. Adams that “nothing in the constitution has given [the judges] the right to decide for the executive, more than the Executive to decide for them.” Both branches, continued Jefferson, “are equally independent in the sphere assigned to them.” Jefferson recognized that the judges, “believing the law constitutional, had a right to pass a sentence of fine and imprisonment, because that power was placed in their hands by the constitution.” However, this did not bind him when performing his duties as chief executive. Because he believed the Sedition Act was unconstitutional, he “was bound to remit the execution of it.”

It is conceivable that a Republican-controlled Congress could pass the law suggested by Robert George, and that a Republican president would enforce the law. Perhaps even a Democrat president would enforce the law as long as he was confronted by a Republican-controlled Congress and popular opinion on the morality of abortion, which has been shifting toward the pro-life position. The Supreme Court would be well advised to make like the Three Wise Monkeys.

My main concern is that the precedent of blatant departmentalism on a salient issue would be a dangerous one. Use of the doctrine would invite a Democrat-controlled Congress to conspire with a Democrat president to ignore, say, a Supreme Court ruling that overturns Obamacare or the McCain-Feingold Act.

P.P.S. In “Human Personhood Begins at Conception.” philosopher Peter Kreeft presents the arguments commonly used to explain why the unborn child is not a human person and then shows clearly and simply why each of these arguments cannot possibly be true.

Politics and Prosperity

“Government is a disease masquerading as its own cure.”

Abortion and the Fourteenth Amendment

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