At Volokh Conspiracy, Jonathan Adler: Why the 14th Amendment Does Not Prohibit Abortion. From the introduction:
Some Pro-Life advocates … argue not only that Roe was wrong as an original matter, but also that the Fourteenth Amendment, properly interpreted, protects unborn life and prohibits abortion. This is the argument made in this amicus brief filed in Dobbs on behalf of John Finnis and Robert George and this Finnis article in First Things. …
Last month, I was asked to debate this question with Josh Hammer by the University of Chicago student chapter of the Federalist Society and UChicago Law Students for Life. It was a fun event in front of a packed house. The remainder of this post (after the break) summarizes my argument for why the Fourteenth Amendment does not prohibit abortion.
In order to argue that the 14th Amendment prohibits abortion, one needs to establish two separate propositions: 1) That the unborn are "persons" within the Fourteenth Amendment; and 2) That the failure of a state to prohibit abortion constitutes a denial of either Due Process or Equal Protection. Both are necessary to sustain the argument, but in my view, the Constitution's text, structure and history do not support either. … [extensive analysis follows].
From an originalist perspective, I entirely agree. Among other things, to show the Fourteenth Amendment prohibited abortion when enacted, one would need to show (a) that the word "person" at the time of enactment included fetuses, and (b) state laws generally at the time categorically prohibited abortions, or there was a broad understanding that the Fourteenth Amendment would override existing state laws in this area. I don't think either proposition can be established, for the reasons Professor Adler describes in the substantive part of his post.
I think that explains why no originalist or originalist-oriented Justice has ever shown any sympathy for the George/Finnis argument, even Justices (such as Scalia) whose personal views of abortion point strongly the other way. Originalism does constrain originalist Justices. It constrained Scalia to say that states could allow abortion, much as he hated that result.
It's also critical to see (as Justice Kavanaugh said in the Dobbs oral argument) that the position Mississippi takes in Dobbs is an intermediate position — that the question of abortion should be left to the states. One can argue, with Professors George and Finnis, that the Justices should take that question away from the states and declare statutes permitting abortion to be unconstitutional. I agree with Professor Adler (and Justices Scalia and Thomas) that originalism does not permit that result.
But for a living constitution analysis … I suppose it depends on who the Justices are. Take away originalism, and I don't see why conservative Justices who find abortion objectionable on policy/moral grounds should not also find it unconstitutional. That's the way living constitutionalism works.
Posted at 6:12 AM