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 14th 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 14th Amendment broadly enough to empower Congress to protect the unborn would be inconsistent with the 10th 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 14th 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:


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.

Related posts:
I’ve Changed My Mind
Next Stop, Legal Genocide?
It Can Happen Here: Eugenics, Abortion, Euthanasia, and Mental Screening
Creeping Euthanasia
PETA, NARAL, and Roe v. Wade
The Consequences of Roe v. Wade
The Old Eugenics in a New Guise
The Left, Abortion, and Adolescence
Law, Liberty, and Abortion
Don’t Just Take My Word for It
Oh, *That* Slippery Slope
Abortion and the Slippery Slope
The Cynics Debate While Babies Die
Privacy, Autonomy, and Responsibility
Peter Singer’s Agenda
The Slippery Slope in Holland
The Slippery Slope in England
The Slippery Slope in New Jersey
An Argument Against Abortion
Singer Said It
The Case against Genetic Engineering
A “Person” or a “Life”?
How Much Jail Time?
A Wrong-Headed Take on Abortion
The End of Slavery in the United States
Crimes against Humanity
Abortion and Logic

Substantive Due Process and the Limits of Privacy


David Bernstein of The Volokh Conspiracy discussesThe One and Only Substantive Due Process Clause,” (120 Yale Law Journal 408), by Ryan C. Williams, who is not a law professor but a living, breathing, practicing attorney. Here is the abstract of the article:

The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments are among the most debated topics in all of constitutional law. At the core of this debate is the question of whether these clauses should be understood to protect only “procedural” rights, such as notice and the opportunity for a hearing, or whether the due process guarantee should be understood to encompass certain “substantive” protections as well. An important though little explored assumption shared by participants on both sides of this debate is that the answer to the substantive due process question must be the same for both provisions. This Article questions that assumption by separately examining the historical evidence regarding the original public meaning of the Due Process Clauses of both the Fifth and Fourteenth Amendments with a single question in mind: did the original meaning of each clause, at the time of its enactment, encompass a recognizable form of substantive due process? At the time of the Fifth Amendment’s ratification in 1791, the phrase “due process of law,” and the closely related phrase “law of the land,” were widely understood to refer primarily to matters relating to judicial procedure, with the second phrase having a somewhat broader connotation referring to existing positive law. Neither of these meanings was broad enough to encompass something that would today be recognized as “substantive due process.” Between 1791 and the Fourteenth Amendment’s enactment in 1868, due process concepts evolved dramatically, through judicial decisions at the state and federal levels and through the invocation of due process concepts by both proslavery and abolitionist forces in the course of constitutional arguments over the expansion of slavery. By 1868, a recognizable form of substantive due process had been embraced by courts in at least twenty of the thirty-seven then-existing states as well as by the United States Supreme Court and the authors of the leading treatises on constitutional law. As a result, this Article concludes that the original meaning of one, and only one, of the two Due Process Clauses—the Due Process Clause of the Fourteenth Amendment—was broad enough to encompass a recognizable form of substantive due process [emphasis added].

What is substantive due process? Ryan helpfully contrasts it with procedural due process:

[T]he distinction between adjudication-related conduct and nonadjudication-related conduct is sufficiently distinct to serve as a useful dividing line for distinguishing between substantive and procedural rights.

Under the dichotomy sketched above, an interpretation of the Due Process Clauses can be categorized as “procedural due process” if it imposes no constraints on governmental deprivations of “life, liberty, or property” that do not relate to the form of adjudication that must be provided in connection with such deprivations and the procedures that must be observed in connection with such adjudication. By contrast, an interpretation of the Due Process Clauses can be classified as “substantive due process” if, and only if, it would prohibit governmental actors, in at least some circumstances, from depriving individuals of life, liberty, or property even if those individuals receive an adjudication in which “even the fairest possible procedure[s]” are observed. (Id. at 419)

Governmental power, in other words, has limits, and those limits may not (or should not) be breached simply by observing the niceties of judicial or legislative procedure.


Of particular interest are what Ryan calls “Police Powers” Due Process and “Fundamental Rights” Due Process. The former most famously (or infamously) prevailed in the U.S. Supreme Court’s so-called Lochner era (roughly 1897-1937), when the Court

invalidated state and federal legislation that inhibited business or otherwise limited the free market, including laws on minimum wage, child labor, regulations of banking, insurance and transportation industries.

The era takes its name from Lochner v. New York (1905), in which the Supreme Court struck down a State statute that attempted to impose a maximum-hours limitation on bakers. (I discuss this case in “Substantive Due Process, Liberty of Contract, and the States’ Police Power.”) Ryan writes about the “police powers” emphasis of the Lochner era:

The Lochner-era Court’s application of the Due Process Clauses encompassed review of both the ends that the legislature sought to achieve and the means employed to achieve such ends; if the Court determined that either the ends or means chosen exceeded the legislature’s legitimate authority, the law was condemned as a violation of due process. This more flexible conception of due process allowed for legislation to be upheld even if it interfered with preexisting rights or affected identifiable interests in different ways, so long as the government could point to some legitimate justification for the legislature’s decision. Conversely, legislation that fell outside the scope of the state’s traditional police powers could be invalidated even if it did not deprive individuals of preexisting property rights and did not operate unequally. The Lochner-era police powers cases also differed from the earlier property-focused vested rights and general law interpretations by placing principal emphasis on the protection of individual “liberty” rather than “property.” (Id. at 426-7)

The Court’s embrace of substantive due process was broken by the exigencies of the Great Depression, in which a “chastened” and reshaped Court found adequate justification to repudiate the Constitution in favor of the New Deal.


The Court nevertheless resumed its embrace of substantive due process, in a different guise, when various majorities discovered “fundamental rights” in the emanations and penumbrae of the Constitution:

[A] new paradigm of substantive due process decisionmaking began to emerge in cases such as Griswold v. Connecticut [1965, contraception], Shapiro v. Thompson [welfare as a newcomer to a State, regardless of residency requirements, 1969], and Roe v. Wade [1973, abortion]. This new approach, which is the Court’s currently prevailing framework for dealing with substantive due process claims, places principal emphasis on identifying a narrow category of liberty interests that are deemed sufficiently “fundamental” to warrant heightened scrutiny and “forbids the government to infringe . . . ‘fundamental’ liberty interests at all . . . unless the infringement is narrowly tailored to serve a compelling state interest.” (Id. at 427, links added)

Why substantive due process for individuals proclaiming “lifestyle” rights but not for individuals and business owners striving to better their economic lot?

It is likely no coincidence that … early twentieth-century critics of the Supreme Court’s Lochner-era substantive due process jurisprudence, who conducted the first detailed examinations of the pre-Fourteenth Amendment meaning of “due process of law,” failed to identify much support for substantive due process. Nor is it a coincidence that more recent critics of post-Lochner substantive due process decisions have tended to endorse the conclusions of the Lochner-era critics. (Id. at 509-10)

In other words, it all depends on the ideological complexion of the Court. Perhaps even a Court with a solid originalist majority (i.e., a Court with one less Kennedy and at least two more Thomases) would not roll back the precedents of Griswold v. Connecticut and Lawrence v. Texas (2003, homosexual sodomy), but I would be surprised if it did not roll back the precedent of Roe v. Wade et seq.

If there is a fundamental right to privacy, surely it does not encompass everything that flows from private acts. And yet through judicial sleight-of-hand, Roe v. Wade moved constitutional interpretation in that direction.


I have written elsewhere about Roe v. Wade:

Abortion was considered murder long before States began to legislate against it in the 19th century. The long-standing condemnation of abortion — even before quickening — is treated thoroughly in Marvin Olasky’s Abortion Rites: A Social History of Abortion in America. Olasky corrects the slanted version of American history upon which the U.S. Supreme Court relied in Roe v. Wade.

Because abortion was not a right at the time of the adoption of the Ninth Amendment, there is no unenumerated right to abortion in the Constitution. The majority in Roe v. Wade (1973) instead seized upon and broadened a previously manufactured “privacy right” in order to legalize abortion….

In effect, the Roe v. Wade majority acknowledged that abortion is not even an unenumerated right. It then manufactured from specified procedural rights enumerated in the Bill of Rights — rights which are totally unrelated to abortion — and from strained precedents involving “penumbras” and “emanations,” a general right to privacy in order to find a “privacy” right to abortion….

It is therefore unsurprising that the majority in Roe v. Wade could not decide whether the general privacy right is located in the Ninth Amendment or the Fourteenth Amendment. Neither amendment, of course, is the locus of a general privacy right because none is conferred by the Constitution, nor could the Constitution ever confer such a right, for it would interfere with such truly compelling state interests as the pursuit of justice. The majority simply chose to ignore that unspeakable consequence by conjuring a general right to privacy for the limited purpose of ratifying abortion.

The spuriousness of the majority’s conclusion is evident in its flinching from the logical end of its reasoning: abortion anywhere at anytime. Instead, the majority delivered this:

The privacy right involved, therefore, cannot be said to be absolute. . . . We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

That is, the majority simply drew an arbitrary line between life and death — but in the wrong place. It is as if the majority understood, but wished not to acknowledged, the full implications of a general right to privacy. Such a general right could be deployed by unprincipled judges to decriminalize a variety of heinous acts.

The Fourteenth Amendment may countenance a lot of things, but it should not be used to countenance murder.