Tuesday, October 8, 2019
The first ingredient in the recipe for overruling Roe v. Wade is Prenatal Equal Protection.
The most basic function of any government is the protection of persons within its jurisdiction. In the United States, the Fourteenth Amendment imposes on States a duty of supplying the equal, protection, of the laws, to all persons, within its jurisdiction.
This constitutional duty is worded negatively: "No state ... shall deny to any person within its jurisdiction the equal protection of the laws." But it imposes an affirmative duty. As Christopher Green explained in two articles ten years ago (here and here), the original legal meaning of this Equal Protection of the Laws Clause was precisely about the duty of equal protection: no separate laws or patterns of law enforcement for disfavored groups of people; no license for some—such as the Ku Klux Klan—to harm others with legal impunity.
If unborn human babies are persons within the meaning of the Fourteenth Amendment, then this duty of equal protection prohibits the state from licensing lethal private violence against them without some justification tied to their location in the womb to authorize differential treatment. There may be very good reasons for states to have legal rules that differ in some respects for the born and the unborn. After all, equality means treating like things alike, and the born and unborn are unlike in some respects. One way in which they are alike, though, is that they are persons.
The Supreme Court infamously held otherwise in Roe v. Wade, interpreting "person" to exclude unborn human babies. The Court's reasoning on this issue was pretty thin throughout and demonstrably flawed in part.
The demonstrable flaw came in Justice Blackmun's claim that, if unborn humans are persons, the case for a right to abortion "collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment." Justice Blackmun here had in mind the Due Process Clause, as context makes clear.
The belief that the Due Process Clause protects against private lethal violence is a common mistake, one which has ensnared many pro-lifers as well. When one private party kills another, something bad has happened. But not a violation of the Due Process Clause. Only state action violates the Due Process Clause.
While this state-action limitation had been established since well before Roe, post-Roe decisions have made even clearer that the state-action requirement for the Due Process Clause cannot be met by redescribing state failure to intervene against private violence as state action.
The leading case is DeShaney v. Winnebago County Department of Social Services. In Deshaney, the Court held that a “State’s failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services.”
More recently, the Court stood by the general rule of Deshaney in Castle Rock v. Gonzales, holding that police failure to enforce a restraining order, which resulted in the death of children, did not violate the Due Process Clause; this grievous law enforcement lapse was state inaction rather than state action.
Taken together, Deshaney and Castle Rock refute Justice Blackmun’s operative assumption in Roe that a state’s failure to prohibit and to punish abortion would violate the Due Process Clause.