Is Abortion Already Illegal?

Because abortion is ultimately a question of basic human liberty and not just good or bad policy, I have never agreed with those conservatives who think “leaving it to the states” is a sufficient solution to the issue (though it would be far preferable to the anti-democratic status quo forced upon us by Roe v. Wade). I instead support a Human Life Amendment to the U.S. Constitution, to protect the right to life nationwide. States should be able to do many things, but treating certain classes of human beings as property is not among them.
However, until the HLA becomes reality, I have also been wary of banning abortion via an act of Congress, for fear of violating the boundaries of Congress’s enumerated powers under Article I, Section 8 of the Constitution. The 14th Amendment, which was enacted to guarantee political rights to newly freed black Americans after the Civil War, seemed to come close to authorizing Congress to ban abortion, but the language about “all persons born” was always a hang-up for me.
But is that really a barrier? After closer contemplation of the 14th Amendment’s language, I’ve concluded the answer is no. Here are the relevant passages in their entirety:
Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
There’s no question that this empowers Congress to prevent states from treating their inhabitants unequally or depriving them of life, liberty or property. But do the unborn count among those inhabitants? Let’s go line by line:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
So whatever else you are, you’re not a US citizen until you’re born.
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; […]
When taken with the first sentence, this pretty clearly indicates that the unborn aren’t entitled to the full slate of “privileges or immunities” a citizen enjoys. So no guns or voting for fetuses. Sorry.
However, the sentence continues:
[…] nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
“Nor” sets up another set of requirements, separate and distinct from the preceding clauses. Here, the amendment discusses protections applicable to “any person,” not “any citizen.” So while some legal protections and entitlements only come with American citizenship, others apply to every human being within our borders, regardless of their legal status.
This makes perfect sense. Legal rights are merely the terms of an agreement made by a particular group of people in their constitution, whereas natural rights are, according to the Declaration of Independence, God-given qualities possessed by every human being, which cannot be justly denied or violated by anyone.
There are obvious reasons why countries don’t want to have to give foreign nationals exactly the same legal protections and benefits as their citizens—for instance, we shouldn’t have to go through a full-blown jury trial every time we want to deport a violent illegal immigrant. But at the same time, we would never want to set the standard that people can do whatever they want to someone just because he’s not an American.
This certainly seems to fit with the original intent behind the measure—as President Ronald Reagan wrote in his famous essay, “Abortion and the Conscience of the Nation”: 
When Congressman John A. Bingham of Ohio drafted the Fourteenth Amendment to guarantee the rights of life, liberty, and property to all human beings, he explained that all are “entitled to the protection of American law, because its divine spirit of equality declares that all men are created equal.” He said the right guaranteed by the amendment would therefore apply to “any human being.”
If the unborn are people—and from both scientific and philosophical perspectives, they clearly are—then the Constitution already requires that their right to life be protected, even without a new amendment explicitly saying so. Any state that prohibits the murder of fully-grown humans while allowing the murder of those in the womb is unconstitutionally discriminating against the latter.
All right-of-center observers agree that the Constitution doesn’t require the right to abortion, but the understanding I’ve just proposed—that the Constitution actually forbids it—is much rarer. Even Justice Antonin Scalia believes the Constitution is silent on the question. Further, conservatives tend to dislike enacting their policy goals through unelected courts on principle. For these reasons, pro-lifers should continue to support the Human Life Amendment anyway, so that when abortion’s long-overdue end finally does come, nobody can plausibly question its democratic legitimacy. But if we manage to save lives by convincing even a few courts that the right to life is an equal-protection issue, so much the better.

Three Lousy Objections to Susan B. Anthony’s Pro-Life Pledge…and One Real One

Republican presidential candidates Mitt Romney and Herman Cain have come under fire for refusing to sign the Susan B. Anthony List’s Pro-Life 2012 Citizen’s Pledge, which reads:
I PLEDGE that I will only support candidates for President who are committed to protecting Life. I demand that any candidate I support commit to these positions:

FIRST, to nominate to the U.S. federal bench judges who are committed to restraint and applying the original meaning of the Constitution, not legislating from the bench;

SECOND, to select only pro-life appointees for relevant Cabinet and Executive Branch positions, in particular the head of National Institutes of Health, the Department of Justice, and the Department of Health & Human Services;

THIRD, to advance pro-life legislation to permanently end all taxpayer funding of abortion in all domestic and international spending programs, and defund Planned Parenthood and all other contractors and recipients of federal funds with affiliates that perform or fund abortions;

FOURTH, advance and sign into law a Pain-Capable Unborn Child Protection Act to protect unborn children who are capable of feeling pain from abortion.
Romney’s instead offered his own pro-life pledge, consisting of good-but-mild promises regarding thinks like opposing Roe and backing the Hyde Amendment, and explaining where SBA goes too far:
It is one thing to end federal funding for an organization like Planned Parenthood; it is entirely another to end all federal funding for thousands of hospitals across America. That is precisely what the pledge would demand and require of a president who signed it. 
I could ask why somebody who claims to understand conservative principles and the original intent of the Constitution is so hung-up on ensuring that hospitals continue to receive federal funding, but here it’ll suffice to echo SBA’s reminder that the pledge doesn’t say anything about defunding hospitals, which “has never been considered by Congress [and] is not part of public debate,” and ask why it would be a bad thing to make abortion so radioactive that hospitals know even tangential dealings with abortion providers could risk their access to the public trough. And frankly, the 5% of hospitals that SBA says do perform abortions should be defunded.
The pledge also unduly burdens a president’s ability to appoint the most qualified individuals to a broad array of key positions in the federal government. I would expect every one of my appointees to carry out my policies on abortion and every other issue, irrespective of their personal views.
Actually, the pledge doesn’t cover a “broad array” of federal posts; merely those “relevant” to life issues, namely “National Institute of Health, the Department of Justice, and the Department of Health and Human Services.” Romney says, “oh, my guys will do what I want, regardless of their own views,” but that’s simply not good enough. For one thing, it’s not enough for the president to have confidence in a public servant; the American people must be able to trust that they’ll execute the law the way we voted for. Can anybody seriously say that they’d be comfortable with a pro-abortion Health and Human Services Secretary, even with a self-described pro-lifer in the White House? For another, abortion is a question of basic liberty, so you can’t just separate someone’s position on abortion from his position on other issues and expect someone who thinks it’s okay to let babies be murdered for convenience to be just fine on everything else.

As someone who strongly supported Mitt Romney last time around (a decision I stand by, as the viable alternatives were still worse), this is the most damning evidence yet that he doesn’t truly take the pro-life cause seriously. (Charles Krauthammer and Bill O’Reilly are full of crap on this issue.)

Herman Cain, meanwhile, says his problem was the wording of point four:
I support right-to-life issues unequivocally and I adamantly support the first three aspects of the Susan B. Anthony pledge involving appointing pro-life judges, choosing pro-life cabinet members, and ending taxpayer-funded abortions. However, the fourth requirement demands that I “advance” the Pain-Capable Unborn Child Protection Act. As president, I would sign it, but Congress must advance the legislation.
Cain seems to be alluding to the fact that presidents don’t have a constitutional role in the legislative process until a bill reaches their desk, which is true, but come on. Rejecting an entire pledge because of one word that wasn’t quite precise enough for Cain is awfully nitpicky, even for a disgruntled constitutional purist like me. Cain’s pro-life street cred is far better than Romney’s, but this is just the latest in a string of bungles by Cain that convince me he’s not ready for primetime.

Now that we’ve got the candidates’ crappy reasons for rejecting the SBA pledge out of the way, we must unfortunately turn to a real problem with it that few people have touched upon. David Kopel explains why the Pain-Capable Unborn Child Protection Act may be constitutionally problematic:
The federal version of PCUCPA is S. 314, introduced by Sen. Mike Johanns (R-Neb.). After the definitions section of the proposed statute, the bill states: “Any abortion provider in or affecting interstate or foreign commerce, who knowingly performs any abortion of a pain-capable unborn child, shall comply with the requirements of this title.”

Federal abortion control under the purported authority of congressional power “To regulate Commerce…among the several States” is plainly unconstitutional under the original meaning of the interstate commerce.

Even under the lax (but non-infinite) version of the interstate commerce power which the Court articulated in Lopez,  a federal ban on partial-birth abortion is dubious, as Glenn Reynolds and I argued in a Connecticut Law Review article. Indeed, in the 5–4 Supreme Court decision upholding the federal ban, Gonzales v. Carhart, Justices Thomas and Scalia, who voted in the majority to uphold the ban as not violating the Casey abortion right, concurred to point out “that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”

In other words, if the attorneys who challenged the federal ban on partial-birth abortions had been willing to raise all plausibile constitutional claims, instead of losing the case 4–5 they probably could have won 6–3, by assembling a coalition of 4 strongly pro-abortion-rights Justices, plus Scalia and Thomas on the commerce issue.
Clearly, using the Commerce Clause for authorization is every bit as invalid as when liberals do it. Congress’s power to regulate interstate commerce was meant to prevent the states from placing onerous restrictions on interstate commerce. Using it to justify regulations on abortions that cross state lines violates the spirit of the clause, and using it to justify regulations on abortions that don’t cross state lines violates both the spirit and the letter of the law.

Can the bill be justified on other grounds, though? The Fourteenth Amendment says no state can “deny to any person within its jurisdiction the equal protection of the laws,” and empowers Congress to enforce that promise. As Ronald Reagan famously pointed out, the architect of the Fourteenth Amendment, Rep. John Bingham, said the amendment’s guarantee of “life, liberty, and property” would apply to “any human being.” I think a case can be made that the Fourteenth Amendment gives Congress the constitutional authority to prohibit abortion (more on that later), but then we come across another problem: does a measure designed to merely discourage abortion constitute protecting fetuses?

I’m not sure. (UPDATE: Here’s my first stab at the issue.) As much as I want Republicans to fight abortion harder, I also want them to do it constitutionally. At the very least, pro-life policymakers cannot justify exploiting chinks in the Constitution’s armor first made by the Left. And that the trickier legal issues involved can be vexing even among pro-lifers is all the more reason to support the Human Life Amendment.

Of course, any progress on that front would require statesmen of a higher caliber than Mitt Romney and Herman Cain.

UPDATE II: Ramesh Ponnuru has another, more substantive beef with the pledge: 

But this pledge, taken seriously, would preclude me from voting for Mitt Romney against Barack Obama in 2012 — which is to say, that given these entirely imaginable options, it would preclude me from doing what I can to advance the pro-life cause. (It would have precluded me from supporting Bush over Gore in 2000, too, since Bush made no such commitment on personnel.) It would preclude me from voting for Romney in the primaries even if I believed he offered pro-lifers our best shot at replacing Obama with someone who would appoint good justices to the Supreme Court.

Who Said Anything About Repealing the 14th Amendment?

Jill Stanek is a tremendous pro-life blogger, but she’s unfortunately framed the question of birthright citizenship for illegal immigrants all wrong. She asks her readers: “Do you think the 14th Amendment should be repealed?” But nobody’s talking about repealing the 14th Amendment. Some people have suggested a constitutional amendment repealing birthright citizenship, but all this would do would be to modify one aspect of the Amendment. To suggest anything like a full repeal is on the table is unfounded and absurd.

Second, those talking amendment are mistaken: the 14th Amendment as originally written and intended does not automatically give citizenship to the children of illegals born on American soil. Dr. John Eastman explains:

The text of the Fourteenth Amendment’s Citizenship Clause provides that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  That text has two requirements: 1) Birth on U.S. soil; and 2) Being subject to the jurisdiction of the United States when born.  In recent decades, the opinion has taken root, quite erroneously, that anyone born in the United States (except the children of ambassadors) is necessarily subject to its jurisdiction because everyone has to comply with our laws while physically present within our borders.  Those who drafted and ratified the Fourteenth Amendment had a different understanding of jurisdiction.  For them, a person could be subject to the jurisdiction of a sovereign nation in two very different ways: the one, partial and territorial; the other full and complete.  Think of it this way.  When a tourist from Great Britain visits the United States, he subjects himself to our “territorial jurisdiction.”  He has to follow our laws while he is here, including our traffic laws that require him to drive on the right rather than the wrong (I mean left!) side of the road.  He is no longer subject to those laws when he returns home, of course, and he was never subject to the broader jurisdiction that requires from him allegiance to the United States.  He can’t be drafted into our army, for example, or prosecuted for treason for taking up arms against us.

So which of the two understandings of jurisdiction did the drafters and ratifiers of the citizenship Clause have in mind?  Happily, we do not need to speculate about that, as the drafters of the Fourteenth Amendment were quite explicit when asked this very question.  Senator Lyman Trumbell, a key figure in the drafting and adoption of the Amendment, stated that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction, “[n]ot owing allegiance to anybody else.”  And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction” requirement as applied under the 1866 Civil Rights Act, which afforded citizenship to “all persons born in the United States and not subject to any foreign power.”  Although the subsequent ratification debates are not very comprehensive, one thing is quite clear: Everyone understood that the Fourteenth Amendment was at least designed to constitutionalize the 1866 Civil Rights Act, with the birthright citizenship caveat that one not be “subject to any foreign power.”

We have to understand the 14th Amendment before we can defend it.
(Hat tip: Lisa Graas)