The Originalist Case for an Abortion Middle Ground
66 Pages Posted: 13 Sep 2021 Last revised: 1 Sep 2022
Date Written: September 13, 2021
In the aftermath of oral argument in Dobbs v. Jackson Women’s Health Organization, the question is no longer whether the right to abortion will be curtailed, but rather how far. Several justices evinced a desire to roll the right back entirely. Others probed at a position that might allow states to ban some—but not all—procedures. As Justice Gorsuch asked Solicitor General Elizabeth Prelogar, if the Court “rejects the viability line, do you see any other intelligible principle that the Court could choose?”
For reasons both principled and strategic, the Solicitor General answered in the negative. But if (as now seems certain) there are five or more votes to discard the viability rule, Justice Gorsuch’s question takes on crucial significance. Rather than eviscerating reproductive autonomy, might there be a legal principle capable of grounding a narrower—yet still meaningful—right to abortion at a point prior to viability?
This Article identifies such a principle in a surprising source—the Constitution’s original meaning. The argument starts with a view advanced by prominent originalists such as Michael McConnell and Randy Barnett: that the Fourteenth Amendment’s original meaning enshrines rights that individuals enjoyed in a substantial majority of states over a lengthy period of history, including as a matter of statutory law. The Court’s history- and tradition-focused substantive due process cases reflect a similar approach.
This understanding plausibly supports a narrower abortion right. As of the founding, every state respected the right to abortion before quickening, or the first noticeable fetal movement that often occurs at 15 or 16 weeks in pregnancy. To be sure, some states took a different view by the time of the Fourteenth Amendment’s ratification, punishing pre-quickening abortion due in part to misogynistic views of women’s proper “role” in society. But contrary to both the received scholarly wisdom and Mississippi’s claim in Dobbs, this Article shows that this was only a minority position among the states. As of ratification, 21 of 37 states continued to recognize the very pre-quickening abortion right that was universally embraced at the founding. In other words, throughout America’s early history, pregnant people in most states enjoyed a right to abortion during roughly the first 15 weeks of pregnancy. This is the originalist case for an abortion middle ground.
[Author's Note on 9/15/21: After further research, I've concluded that an earlier draft made two errors. First, I uncovered an additional case from Iowa leading me to conclude that the state actually prohibited abortions throughout pregnancy when the Fourteenth Amendment was ratified. I also found a case in which the State of Oregon argued that its abortion law as of the amendment's ratification did not apply to pre-quickening procedures, leading me to move that state to the set that permitted abortion before quickening.]
[Author's Note on 9/23/21: An updated draft makes three changes. First, in response to incisive feedback from Prof. Larry Solum and other scholars, I no longer rest my argument exclusively on an application of the Court's due process precedents. The draft now presents an additional first principles originalist case for the right to pre-quickening abortion grounded in the Privileges or Immunities Clause. Second, Professors John Finnis and Robert George have identified a Rhode Island statute that has evaded previous scholarly attention. Their finding indisputably moves that state into the category of those that banned pre-quickening abortion at the 14th Amendment's ratification, and I am grateful for their discovery. Third, I respond to Finnis and George's attempts to move other states to the same category, showing why their arguments are deeply misguided.]
[Author's Note on 10/21/21: Professors Finnis and George have now posted a new, lengthy response paper. As with their initial reply, I am grateful for the arguments and discoveries they present. I am especially persuaded by their discussion of Massachusetts, which convinces me to move that state to the set that banned pre-quickening abortions. An updated draft reflects this change, other revisions, a slight reorganization, and a substantial new discussion of Virginia law in light of a recently discovered statutory error to which all parties in this debate have succumbed.]
[Author's Note on 11/3/21: I have made two substantive revisions in an updated draft. The first is to reference important arguments in a new book by Professors Randy Barnett and Evan Bernick concerning the original meaning of the Privileges or Immunities Clause; the second is to update counter-arguments against my reading of Virginia law based on a recently discovered historical source.].
[Revised on 12/15/21 with a new abstract reflecting developments at oral argument in Dobbs].
[Author's Note on 8/31/22: Given the Court's ruling in Dobbs, I will no longer update this draft. I have, however, posted a new article (forthcoming in the Stanford Law Review) that considers the implications of much of this abortion history for efforts to ban abortion nationwide. For any who are interested, that article can be found here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4205139]
Keywords: abortion, originalism, constitution, constitutional law, due process, history, legal history, roe v. wade, dobbs
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