A Fetal Right to Life?: Abortion and the Constitution Part 2

May 30, 2019

 

In part two of our discussion on abortion and the Constitution–David French of National Review and reproductive rights historian Mary Ziegler of Florida State College of Law join host Jeffrey Rosen. French and Ziegler break down the recent Supreme Court decision in Box v. Planned Parenthood, and the related legal debates surrounding “fetal dignity” and fetal rights. Exploring Justice Thomas’ concurrence in Box – French explains why he thinks Thomas is once again “throwing down the gauntlet” on the constitutional underpinnings of abortion rights. Next, these experts explore the history and resurgence of the “fetal personhood” movement, which asserts that fetuses have certain constitutional rights, including the right to life. French and Ziegler trace the movement’s history and analyze the strategies of states like Alabama and Georgia that have passed new laws attempting to protect the personhood of the fetus.

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PARTICIPANTS

David French is senior writer for National Review, a senior fellow at the National Review Institute, and a constitutional law attorney. French was previously the president of the Foundation for Individual Rights in Education (FIRE), a lecturer at Cornell Law School, and a senior counsel for the Alliance Defending Freedom.

Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University College of Law. She specializes in the legal history of reproduction, the family, sexuality, and the Constitution. She is the author of the award-winning book After Roe: The Lost History of the Abortion Debate, published in 2015, and the forthcoming book Abortion in America: A Legal History, Roe v. Wade to the Present.

​​​​​​Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” 


Additional Resources


Our Interactive Constitution is the leading digital resource about the debates and text behind the greatest vision of human freedom in history, the U.S. Constitution. Here, scholars from across the legal and philosophical spectrum interact with each other to explore the meaning of each provision of our founding document. 

The Fourteenth Amendment Due Process Clause by Nathan S. Chapman and Kenji Yoshino

This episode was engineered by David Stotz and produced by Jackie McDermott. Research was provided by Lana Ulrich, Jackie McDermott, and Michael Boyd.

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TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen president and CEO of the National Constitution Center and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan, nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people.

And welcome We the People friends to our discussion of the Constitution and abortion part 2. Last week we had very rich and important discussion about the Constitutional arguments for and against Roe v. Wade and Casey v. Planned Parenthood and whether they should or shouldn't be overturned. The homework was to write to me to tell me what you thought of the Constitutional merits of the decision and a shout-out to Joo An who wrote a really thoughtful essay about the equal protection arguments and is a rising law student. Thank you, Joo An, for taking the time to write in.

Today, I'm really excited to have a discussion about one of the most important developments in the debate about abortion in the Constitution. And that is the attempt by some states to recognize fetal personhood and joining us to illuminate this debate and explore its history are two of America's leading commentators on the question.

I'm so excited to have the chance to learn from both of them. David French is senior writer for National Review, a senior fellow at the National Review Institute, and a constitutional attorney. He was previously president of the Foundation for Individual Rights in Education, a lecturer at Cornell Law School, a senior counsel for the Alliance Defending Freedom, and a returning champion on We the People. David, it's wonderful to have you back on the show.

David French: [00:01:46] Well, thanks so much for having me. I appreciate it.

Rosen: [00:01:48] And Mary Ziegler is the Stearns Weaver Miller professor at Florida State University College of Law. She specializes in the legal history of reproduction, the family, sexuality, and the Constitution. She's the author of the award-winning book, After Roe: The Lost History of the Abortion Debate, published in 2015. And she's the author of the forthcoming book, Abortion in America: A Legal History Roe v. Wade to the Present. Mary, it is great to have you back with us.

Mary Ziegler: [00:02:13] No, thank you so much for having me.

Rosen: [00:02:15] Well, let's begin with the Box decision, which the Supreme Court handed down yesterday. In a per curiam decision, that's a unanimous unsigned decision, the Supreme Court in Box v. Planned Parenthood of Indiana and Kentucky upheld portions of an Indiana law relating to the disposition of fetal remains by abortion providers, but allowed a continued stay of the part of the law that banned the knowing provision of sex, race, or disability selective abortion by abortion providers. David, tell us about the significance of the courts brief per curiam opinion and what it signals about the future of the abortion debate at the Supreme Court.

French: [00:02:59] I think that the main significance or the most interesting aspect of the decision is its caution. The element of the decision where the Supreme Court reached a substantive ruling, where it reversed the Seventh Circuit, essentially just found that there's a  rational basis for the Indiana Law governing fetal remains and it was not actually a substantive decision on the abortion right itself.

The other element of the opinion is it essentially just said it's withholding any review of the sex-selective abortion prohibition in Indiana Law. This is not something that other circuits have taken up. It is not something that there's no circuit split. There are no other circuits taking a look at it.

And so essentially the Supreme Court just said, “Nope. We're going to wait - we're going to wait,” and this is fitting with previous action that the Supreme Court took in Louisiana admitting privileges case not long ago where it essentially said it's not going to take an opportunity to do an early look at the merits - the substantive merits of the Louisiana admitting privileges law.

It's going to wait and hear the case potentially and then in the normal course of business. And so, these two cases together in my mind signal that there are - not right now - four justices who are ready to take, at least under the procedural posture of these cases, a big bold look at substantive abortion law.

It is a decision that says time will tell about what the Supreme Court will do and that caution is warranted in making assumptions about what the Supreme Court will do.

Rosen: [00:04:54] Mary, Justice Ginsburg argued that the Supreme Court should not have reversed the Seventh Circuit without briefing or oral argument and she thought that Planned Parenthood would have prevailed under heightened review, which she thought was the correct test citing the 2016 Hellerstedt decision, which said that the precedent demanded close review.

What was at stake in the disagreement between Justice Ginsburg and the other justices about the standard of review, if anything, and what do you make of the significance of the Box per curiam decision?

Ziegler: [00:05:30] Well, rational basis, at least true rational basis, is quite deferential and so the court really spent very little time in it's per curiam opinion on whether the law actually had a legitimate purpose.

It is assumed that it did without a lot of analysis, referencing a past decision from 1983 involving an Akron model law, and the court acknowledged that the tailoring of the law wasn't perfect but in a deferential kind of posture, it didn't need to be. The difference would have been, if Justice Ginsburg had her way, that the court would have probably looked in greater detail at whether the law actually achieved some benefit which is I think a tricky question question when you're looking at something like fetal dignity, which isn't the sort of thing that's as easy to measure, for example as health outcomes for women, which was at issue in the Hellerstedt case and may also have taken more issue with the fact that the law wasn't perfectly tailored because Hellerstedt, it seemed, instructed courts to look at whether the benefits of the law outweighed the burdens or vice versa. And so if there was evidence, for example, that the law didn't particularly protect fetal dignity, which was a stance that I think the Seventh Circuit and the the trial court seemed to take at least implicitly, that might lead to a different result if the court had applied what Justice Ginsburg calls heightened review. But essentially the kind of beefed-up version of the undue burden test that we've seen in recent years.

Rosen: [00:07:03] David, Mary mentioned the notion of fetal dignity, and in its petition for certiorari, Indiana argued that the fetal remains provision expands on a long established legal and cultural traditions of recognizing the dignity and humanity of the fetus.

In his fascinating concurring opinion, Justice Thomas talks at length about the history of the Eugenics movement, namely the movement that aspired for the science of better breeding. He views sex selection and other forms of selective abortion as a kind of eugenics and does refer to the child rather than the fetus.

I want We the People listeners to check out a really fascinating panel discussion the Constitution Center had recently on Eugenics and its social and political history, which we've just published on the Live in America's Town Hall podcast, but David, I want to ask you what you made of Justice Thomas's very provocative concurrence and whether or not you believe him in it to be recognizing the dignity and perhaps even constitutionally-protected life of the fetus.

 

French: [00:08:17] I think from his opinion, if you're looking at it he is walking right up to that line. He is essentially broadcasting where he stands on this really core question of the personhood of the fetus and he's also doing more than that here.

What he's doing is he's - by the language that he uses - he is acknowledging the humanity of the unborn child. He is also calling into question some of the fundamental motivations. Certainly not of, you know, all proponents of abortion rights, not of all pro-choice activist, but some of the fundamental motivations for the origin of the abortion right itself.

So he's - I think he's here doing two things at once and to anyone who sort of paid attention to Clarence Thomas's abortion jurisprudence over the years. Neither one of them should be all that surprising, but he is -he is adopting language that is very reminiscent and matches very closely and closely aligned with personhood language, personhood - the personhood movement, and at the same time he is very dramatically calling into question the, essentially, the motivation for the origin of the abortion right itself as fitting within a broader eugenics movement. And so here he is doing something that I would describe as: one, a Justice of the Supreme Court is throwing down the gauntlet not just on the Indiana law, but sort of on the fundamental underpinnings of the abortion right itself.

Which is interesting to see him do it, but of all of the justices, I think he's the one that most people would say would be most likely to do it. So I don't think we learned anything all that knew about where Clarence Thomas stands. It's just - it's just news every time he repeats that stance, is the way I would phrase it.

Rosen: [00:10:15] Mary, do you agree with David or not that Justice Thomas' reference to the child's race, to Margaret Sanger's belief that birth control could prevent unfit people from reproducing, signals his embrace of fetal personhood. And what do you make of this tie between the dark and undoubtedly disgraceful history of the eugenics movement, which as Justice Thomas accurately said, was used disproportionately to discriminate against African Americans as well as Jews and- and this far more contested notion of fetal person.

Ziegler: [00:10:54] Well, I think I absolutely agree with David that this isn't particularly new for Thomas. Thomas has written repeatedly to express his frustration with Roe and Casey and abortion jurisprudence writ large in some ways.

Actually, his criticisms of that jurisprudence were more muted here than I've seen in the past. I think the - the history, I mean, I'm a historian, he actually used a lot of the sources from a chapter of my book. I kept waiting, I'm you know, he should have cited me but the history obviously unsurprisingly is a lot more complicated than Justice Thomas painted it there.

Margaret Sanger did pitch very heavily to eugenicists, in part because eugenicists enjoyed so much popular support that's part of the dark history that this was not a right or a left cause in many ways. It was something that a lot of politicians and donors and foundations embraced. So I think in that way Sanger was more of an opportunist than a true believer and I think that there were certainly eugenicists who sought refuge in the population control movement that Thomas references and there were certainly members of the population control movement who supported legal abortion and there were members of the abortion rights movement who used population control arguments, but the population control movement was very complicated, it's - there's not a one-to-one correlation with the eugenic legal reform movement, and there's certainly not an easy one-to-one correlation between the contemporary pro-choice movement and the population control movement.

In fact, there was a very deliberate repudiation of population control arguments by pro-choice groups in the mid-70s because they did sort of smack of coercion and racism in a way that the feminists then leading those groups didn't like, so there's some grains of truth in Thomas's opinion when it comes to the history, but it's pretty over simplified, which is not particularly shocking when it comes to law office history, but it's worth pointing out.

Rosen: [00:12:56] David, let us now delve into the fetal personhood movement. You have written some important pieces recently in National Review describing the fetal personhood movement, and the preambles to several of the new laws explicitly refer to fetal personhood.

 Alabama, which on May 15th passed a full abortion ban states, in the United States Declaration of Independence the principle of natural law that all men are created equal was articulated, the self-evident truth found in natural law that all human beings are equal from creation was at least one of the bases for the anti-slavery movements, and similarly the Missouri fetal heartbeat bill says, “in recognition that almighty God is the author of life, that all men and women are endowed by their creator with certain unalienable rights, that among these are life, and that the Missouri Constitution provides that all persons have a natural right to life, it is the intention of the general assembly to defend the right to life of all human beings born and unborn,” and so forth.

Tell us please about this fetal personhood movement. To what degree is it a new turn among the pro-life movement, to what degree does it have a history, and how significant is it that several states are now explicitly recognizing the right to life of the fetus?

French: [00:14:25] Alright, so this is a complicated question. But let's - let's say, is it new? No. Its - its origin really goes back to at least, as a - as a - as a fundamental aim of the pro-life movement, goes back to a sentence in the 1973 Roe decision. Where Justice Harry Blackmun said, “If the suggestion of personhood is established, Roe's case collapses for their fetuses right to life would then be guaranteed specifically by the Fourteenth Amendment.”

Now, Blackmun was speaking about personhood under the Federal Constitution, but what you will hear when you talk to some of these state legislators who are involved in drafting these - these state laws is that they're saying, “okay, there is a separate line of Supreme Court authority that essentially says it is within the province of states to expand - a state cannot contract individual liberty to a degree less - protect, in other words, if - if you have a first amendment protection, a state cannot limit your amendment protections because federal law is supreme over state law, but what the state can do is actually protect your right to free speech greater, to a greater degree, than the first amendment does. So the ability of states, with regard to individual liberty, is to be a one-way ratchet.

In other words, they can make you more free than the Federal Constitution. They cannot make you less free. And so essentially what they're arguing is, that by establishing personhood, they are granting greater liberty to the fetus - to the unborn child - and they are trying to move that one-way ratchet in the direction of liberty for the unborn child.

Now in the abortion context, that one-way ratchet has tended to work differently. In other words, a state can pass a law that grants a woman greater freedom to obtain an abortion than federal law protects. Here, the states are trying to do something different they're trying to locate the liberty interest in the child - in the unborn child.

And so that's the strategic, the legal strategic, move here. That's the legal strategic attempt here and it's located directly in that sentence and make no mistake, this is about, these are, these laws are designed from the outset to be fundamentally in opposition to the holding of Roe so that there would be no way for the Supreme Court to rule to uphold these - these laws without undermining, fatally undermining Roe.

That's the purpose of the law and the personhood provision is designed to place that law in the most favorable possible legal posture when it makes that appeal. That's that's the goal of it. And this is something that's relatively new, not in the attempt to raise personhood, it's relatively new in the success and in passing through these various state statutes

Personhood amendments, for example, have tended to fail at the ballot box in the recent past, but these are being passed by state legislators - often by supermajorities - so the success at establishing fetal personhood under state law is what's new. The attempt to establish legal personhood is not new.

Rosen: [00:17:51] Thank you for that helpful history of the fetal personhood movement. And for noting that, although the attempt is not new, it's having more success recently and it does represent a direct assault on the Constitutional premises of Roe. Mary, can you tell us about the history of the fetal personhood movement? I'll just give a call out to a timeline that Propublica published on the personhood movement, which says that it was 1986 where Minnesota became the first state to pass a fetal homicide law, that it was in 2013 that North Dakota lawmakers became the first in the U.S. to pass a personhood amendment, and then it notes the recent successes in 2014. You've written extensively about this and are the world expert. Tell us about the history of the fetal personhood movement and its current success.

Ziegler: [00:18:43] Well, I think often when people refer to personhood they're referring to a strategy, but I think to understand the pro-life movement, you have to understand that in many ways, starting in the 1960s, the pro-life movement was a personhood movement. So prior to Roe, when pro-lifers argue that the constitution already recognized a right to life, they often use the idea of personhood to make that point. Arguing that the fetus was a person for the purposes of both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment and looking to many of the sources you see being invoked - and States like Missouri or Alabama or Georgia now including the Declaration of Independence and natural law and the Fourteenth Amendment even the 13th Amendment that abolished slavery.

So I think if you want to understand the history of personhood arguments, you have to understand that in many ways it's the history of the pro-life movement as a whole. So after Roe, for example, pro-lifers, who are very fragmented strategically in some ways, all united in the idea that the Constitution had to be amended to recognize fetal personhood and abolish abortion.

So when we were talking about personhood strategies now, we're often talking about one way of chipping away at Roe or directly attacking Roe, but I think the end goal for pretty much all abortion opponents is the same, and that would be the establishment of fetal personhood and rights to life, not simply the overturning of Roe.

I think David's absolutely right that recently, and really for some time going back really into the early 1980s, personhood arguments have not been strategically ascendant in the pro-life movement, in part because it was thought that they weren't either appealing to political majorities and therefore not likely to appeal to politicians, particularly in the GOP, and because they weren't thought to yet appeal to popular majorities of voters or to the Supreme Court.

So instead you saw what a lot of pro-lifers and scholars call incrementalist strategies, that would focus on laws said to be constitutional under Roe that would limit the number of abortions or access to abortion and also make Roe, and the cases following it, seem either incoherent or unworkable in such a way that you could ultimately make a case for overturning Roe down the road.

 Personhood arguments always existed. There were always Pro lifers who thought either that incrementalism was cowardly or that it was counterproductive. Essentially that if you didn't ask for what you wanted from other politicians, the public, or the Supreme Court you were never going to get it.

But those groups mostly were on the losing end of strategic battles for some time and often found themselves sometimes outside of legal and political strategies all together. Operation Rescue, for example, the group that mounted major clinic blockades in the 80s and 90s sometimes appealed to people who are impatient with the pace of change. So, it is new to see groups taking personhood positions doing so well in state legislatures - seeming to have really strong appeal to politicians who might have been worried that those arguments in the past would alienate voters in the middle and I think demanding more of a politician.

So I think you see a different expectation of what the Supreme Court is going to deliver. And you also see a different attitude among at least some state legislators about the political payoff that they're going to get from taking personhood positions than you might have seen in the past.

Rosen: [00:22:12] David, I want to ask you about the Constitutional basis for the state's authority to define personhood, and remember Dear, We the People listeners when we have these discussions of abortion in the Constitution I want you to separate your political from your constitutional views. You may be pro-life but believe that Roe and Casey were correctly decided or you might be pro-choice and believe that they're wrongly decided, but let's focus on what you think the Constitution allows or prohibits.

David, what is the basis for the states' ability to define fetal personhood and would Congress have a similar ability to define fetal personhood under the Constitution or not?

French: [00:22:54] Yeah, that's a - that's a really good question. So,  and as a general matter, if you're looking at sort of the Constitutional background, that the Constitutional distinction between a state government and the federal government is the federal government constitutionally is, in theory at least, a government of enumerated powers.

It only has the power that the federal Constitution gives it. The remainder - the states by contrast in general have had something called the police power. The police power is essentially - look at it as a reverse - that states have power, have a general governmental power that is restricted by their constitution, not so much just granted by their constitution, but restricted by their constitution, and this is one of the - traditionally in American law, the vast majority of this - of the laws that govern human behavior are - have been state laws to this day, you know, if you're talking about prison populations and in persons interaction with criminal law you're talking about as a general matter of the large majority of people it's state law and so states have had some have had traditionally a very broad authority over defining criminal statutes, defining criminal penalties.

 And so the real conflict here then becomes to what extent does that state police power begin to conflict with federal constitutional rights ever since the incorporation of the Bill of Rights. For example to the states, states have not had the ability to pass laws that violate the First Amendment or the Fourth Amendment or the Fifth Amendment and so the real question is how - to what extent - is the general background State autonomy restricted by federal constitutional principles and that the essential holding of Roe and Casey is to say that the abortion right is a federal constitutional right that no state can infringe upon or at least impose an, after Casey, undue burden upon.

And so that's why I say that if you're going to talk about the fetal personhood elements of these state laws - they are in conflict with this holding - the holding of Casey - they are in conflict with the holding of Roe. And so as they're being passed, everyone who's passing them knows that and understands that they cannot go into effect.

Unless Casey or - and or Roe are overturned. They just cannot do it because they're in conflict with what is currently a federal constitutional principle. And so, no one who's passing these laws is passing them with the belief that they're going to go into effect tomorrow. Even if they have an immediate, you know, even if on paper they have immediate applicability, they're going to be enjoined instantaneously.

This is a - this is a strategic legal maneuver that also has a very strong moral element to it as well. So, you know, one of the things that I think that it's important to understand is we're talking about some of these changes is: you cannot understand this - these recent moves - without understanding larger American polarization and the way Americans are clustering and various supermajority States.

And so you have supermajority red states, you have supermajority blue states, and in that circumstance a lot of the sort of the national polling or even discussions about kind of a mushy middle on these issues becomes less relevant. So these are super majority red states passing laws that are designed specifically to challenge and change the federal constitutional framework.

Rosen: [00:26:41] Mary, let us really delve into this constitutional question of who decides when life begins. David says that, unlike Congress, the states have a general police power that allows them to recognize interest in fetal life that might exceed that recognized by the federal Constitution. But can the Supreme Court avoid deciding for itself when life begins? In an article called The Right to Privacy in- published in 1989- Jed Rubenfeld said that Justice Blackmun was wrong to say that the court could refuse to decide when life begins because only if the fetus is a life at the moment of conception could its interest be strong enough to override the woman's constitutionally recognized autonomy rights. So, if a bunch of states continue to recognize fetal personhood, will the Supreme Court in fact have to decide on its own whether or not it agrees that, for constitutional purposes, that the fetus is a person and and on what basis in the Constitution, could it make such a decision?

Ziegler: [00:27:47] Well, I don't think the court has to take the personhood route to overturning Roe and I would actually be somewhat surprised if they did. We already know that there's, as David pointed out earlier, a lot of caution that seems to have gripped the Supreme Court. We know that Chief Justice Roberts is an institutionalist who cares about the court's reputation, which in his mind seems to have sometimes something to do with partisan concerns, and we also know that a personhood jurisprudence  could have consequences beyond abortion.

So if a fetus or an unborn child is a person, they are going to be a person for a variety of legal purposes, not just for abortion purposes. So I think for many years, pro-life attorneys were wagering that the court would be much more likely to say simply that the Constitution doesn't recognize a right to abortion, which would leave states free to do what they wanted with the question.

They could outlaw abortion or they could fund and make abortion legal or they can do something in between, but it wouldn't forbid states from allowing abortion. And I would still anticipate that that kind of overturning of Roe is far more likely than something involving personhood. The case for personhood interestingly has always been, and I think continues to be, partly based on scientific evidence not simply on legal evidence.

So usually the idea is that you could argue, for example, that the framers believed that a fetus or unborn child was a person, both from the standpoint of biology and from the standpoint of legal philosophy. And those arguments continue to be made pretty forcefully by abortion opponents now. Arguments for example that we have better scientific evidence than we did in 1973 of the humanity of a fetus or unborn child, whether that involves genetics or other forms of evidence.

So I would expect you to see sort of a combination of laws that rely heavily on constitutional history, but also on science and scientific evidence. And that in many ways isn't new either. If you look at briefs in Roe or even in earlier cases, there were lots of arguments that relied on new, what were then new at the time, forms of science or medicine like fetology, with the argument being that personhood would always depend on this combination of scientific fact and constitutional law.

Rosen: [00:30:09] David, Mary may well be right that the court will want to dodge this question. But if it were to squarely confront the question of fetal personhood could it take refuge in original understanding or our notions of fetal personhood based more in natural law philosophy, easier to route in the Catholic natural law tradition rather than in the original understanding of the Framers. Since before the mid-nineteenth century many states allowed for abortions before fetal quickening, according to common law. It's a complicated historical debate. But do you believe that the Supreme Court will have to take a position on whether or not the Constitution recognizes fetal personhood and how do you think it's likely to play out?

French: [00:31:01] Yeah, I don't think the Supreme Court is going to have to do anything. The Supreme Court does what it wants and I think that you know, what they're - what we have is a range here of possibilities the Supreme Court could simply - because I doubt that any Circuit Court will uphold any one of these new heartbeat bills or uphold the Alabama law, for example. I doubt a circuit court will justify Supreme Court precedent and do so and even if a three-judge panel did en banc, I would imagine that circuit courts would uphold existing Supreme Court authority. So the Supreme Court could just choose to not hear one of these cases at all.

Now, I do think that if you continue to have them volleyed up to the court, especially as legislature after legislature after legislature passes these things, the possibility of the Supreme Court hearing one of these cases increases. I don't know if it becomes a probability, but I think the possibility, the odds, of them hearing increased by some amount.

And in that circumstance, the court could just simply say it's upholding Roe or Casey. It could essentially just say what we are looking at is the Federal Constitution and the Federal Constitution. We're going to repeat essentially the Blackmun formulation from Roe that under the Federal Constitution that the the right to life is not guaranteed specifically by the federal 14th Amendment and then there's the federal right of privacy that is supreme over any effort the states try to make so they don't actually have to grapple with the state definition.

But if it does, if they do, I completely agree. That the battle is probably going to be far more of a scientific battle, then it will be a battle rooted in natural law, for example, and I think the pro-life side of the argument would probably circle its wagons far more around science than perhaps many people are who are outside the pro-life of movement would anticipate. That there is just information that we have now that we did not have even in 1973 - certainly not in the first wave of abortion legalizations that were in the waves of abortion legalizations in the 60s. For example that there's just information we have now we didn't have and under that information at the very least the Supreme Court should acknowledge personhood - the state personhood declarations.

 And is it's possible the Supreme Court will examine that kind of argument. I don't know that it's probable. I would say if I was betting on this, I would say that it is not probable, but I do think it is possible and at least the thinking behind those folks who have drafted these laws is that if it is possible the state personhood determination just puts them in the strongest possible, intellectually consistent, scientifically consistent position to make that argument to the Supreme Court.

Rosen: [00:34:24] Thanks very much for that thoughtful weighing of the possibilities. Mary, if the court were to confront the question of fetal personhood under the Constitution, which David just said is possible but not probable, what should an originalist Justice - that is a Justice who believes in interpreting the constitution in light of its text and original understanding and the original public meaning of that text - conclude about whether or not the fetus is a person from the moment of conception?

Ziegler: [00:34:51] Well, I think it's a pretty tricky question, which is one of the reasons why it may not be probable that they'll decide that issue at all, in addition to the kind of optics and political backlash concerns.

I think an originalist who wanted to reach that conclusion would probably point to the fact that criminal abortion laws were widespread at the time of the ratification of the Fourteenth Amendment and in fact had spread relatively recently, so there was a relatively new and seemingly widespread legislative consensus that abortion was wrong.

The challenge, of course is that the enforcement of abortion laws even at that time - and common law interpretations of them were murky in many ways in the sense that abortion was often not treated as murder, women were not treated as having committed a homicide if they had abortions ,abortion laws weren't that evenly enforced often - they were enforced predominantly when women died during an illegal abortion.

So, I think there's this sort of the letter of the law versus the implementation of the law interpretation of the law by subsequent courts combined with the fact that those ratifying the 14th Amendment probably weren't thinking about abortion at all one way or another, it seems to me though.

Obviously, they had pretty important questions on their mind when it came to the aftermath of slavery in the rights of free people of color. So, I think even finding an original intent when it comes to abortion would be a challenging thing to do. I know there are Scholars who have written that there is an originalism case to be made either for or against abortion rights.

I'm personally a little skeptical of those arguments and think that they - then this might just be my prejudice as a historian - but I don't think the history here is a that helpful a guide if you're an originalist justice

Rosen: [00:36:39] David, same question for you. How should an originalist Justice rule on the question of fetal personhood if he or she were to rule on it? And do examine that complicated Fourteenth Amendment history. One of the scholars that Mary may have been referring to is Reva Siegle who has a very interesting series of articles saying that the reason that states around the time of the passage of the Fourteenth Amendment began to restrict abortion far more significantly than had been restricted at the time of the founding was as an effort by doctors to reinforce traditional and stereotypical roles of women as caregivers, which might raise equal protection concerns, but give us your take on the originalist question.

French: [00:37:23] You know, I think the fundamental originalist issue isn't so much centered around personhood as it is centered around the the right of privacy argument and so an originalist is going to have a hard time with the - and originalist justices have had for a long time a very hard time with the development of Privacy Law.

The penumbra's and emanations line from Griswold is almost a sort of a bitter joke in originalist judicial circles. This idea that there are these zones of privacy that emanate from and are implied from the explicit elements of the Bill of Rights is not an originalist proposition. And so the originalist who's looking at Roe by and large doesn't really dive into the personhood element. They're instead looking at what's the originalist case for the statement that the right of privacy.

This sort of broad right of privacy exists and abortion is encompassed within it. So, as I understand in my experience with originalist argument has not so much centered around the 14th Amendment and the personhood element of it. I think that is far more centered around the existence of the broader right of privacy itself.

And so that's why I say one of the reasons why the court as a matter of law and sort of originalist logic doesn't necessarily have to deal with the personhood issue at all. It can instead look at Roe through this right of privacy lens and essentially just say - declared that the constitution is silent on abortion.

And then therefore that punts the issue back to the States. And so I think the, as far as the originalist case on whether the 14th amendment guarantees a right to life, I think that that is a tougher argument for an originalist to make. I think there's not a lot of evidence that the drafters of the Fourteenth Amendment had in mind unborn children when they were thinking about what was far, as was just said, what was far more front and center in people's minds and these Civil War amendments was the immediate cause of the Civil War.

And was the resolution of the Civil War which was granting full and equal legal equality to freed slaves. And so the originalist case on personhood I think is a very different argument, in a very different case, than the originalist case on the right of privacy itself.

Rosen: [00:40:08] Mary, you mentioned that if states were to recognize fetal personhood there'd be lots of consequences. A recent piece in the Washington Post, “If a fetus is a person, it should get child support, due process, and citizenship,” by Carliss Chatman, sums up some of the consequences that would follow from the recognition of fetal personhood. Others have noted that in vitro fertilization might be illegal because the destruction of fertilized embryos could be considered a form of murder and so forth. So, what is the legal consequence of these declarations of fetal personhood likely to be and and how will that affect the abortion debate?

Ziegler: [00:40:51] Well, I think that the potentially complicated, maybe even unintended, consequences of fetal personhood offer probably one of the most prominent reasons the court isn't likely to go that direction, beyond their being a less solid originalist case. I know Josh Craddock wrote a recent piece arguing that there is an originalist case for fetal personhood, but I that was relatively unique I guess or unusual in taking that position.

I think one of the related kind of interesting questions is that: if you do recognize fetal personhood, where does abortion begin? And so there would be questions about common forms of contraception. There's a debate about whether those contraceptives prevent implantation or prevent fertilization.

If they prevent implantation then those forms of contraception may be considered abortifacient, so we would be looking potentially at things like IUDs or the birth control pill. And that would be true even if states that criminalize abortion without necessarily mentioning fetal personhood, but they would certainly be implicated by fetal personhood as well.

Otherwise, you would just be looking at any instance in which the law mentions personhood. Some obvious examples, that really aren't controversial because the law in these subjects is already changed, would be things like tort law; like wrongful death law; criminal homicide laws or other forms of criminal law…

 But you'd expect to see at least the issue come up in everything from Social Security Disability to tax law, anywhere the word “person” comes up. It would at least need to potentially be dealt with. And so one of the reasons I'm skeptical of the court's willingness to do that is that often you see the court's conservatives and originalists and often pro-life attorneys as well arguing that the court should - and I'm paraphrasing Justice Scalia here - get out of the abortion business. That was one of the appeals that was often made. It's hard to see the court wanting to get out of the abortion business and into the fetal personhood business, which would be in and of itself a pretty complicated body of constitutional jurisprudence. So I'm skeptical.

I think it's certainly possible. We were in a sort of world of unknowns and unknown unknowns when it comes to this Supreme Court majority. But for a variety of reasons, I just think it would be complicated and therefore very unlikely for them to go down that path.

Rosen: [00:43:08] Thank you for calling out Josh Craddock's article, “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortions,” published in the Harvard Journal of Law and Public Policy. I'll just quickly summarize it because it's relevant to our discussion that he says, “The structure of the argument is simple. The 14th amendment's use of the word “person” guarantees due process and equal protection to all members of the human species. The preborn are members of the human species from the moment of fertilization. Therefore, the fourteenth amendment protects the preborn,” and he says that the crucial question is “if one concedes the minor premise that pre-born humans are biological members of the human species. All you have to prove is that the term “person,” and its original public meaning at the time of the Fourteenth Amendment, its adoption applied to all members of the human species.”

 David, can a citizen in Alabama, if it's law were allowed to go into effect and Roe were overturned, sue a couple attempting in vitro fertilization on the grounds that it's a form of murder and what would other consequences state-by-state of these state declarations of fetal personhood be for the rights of individuals within that state?

French: [00:44:16] Yeah, I think the short answer to that question is: all of the complications that were we just talked about would be punted to the states. So, if in the absence of a declaration of personhood under the Fourteenth Amendment the state personhood definitions would control in these states, have at least attempted in some ways to talk about the specific ways in which that applies.

So for example, Georgia talks specifically about child support. That child support would kick in obligations, would kick in from the moment of human heartbeat is detected, or for tax purposes from the moment the human heartbeat is detected, then there is - there are the tax consequences come in this this is the unborn baby is a distinct person.

So what you would then begin to have is the states would start to pass a web of statutes that begin to parse through and define these things. And right now they don't have that. Georgia's probably the closest of any of the states to try to deal with it in a more comprehensive way. There has been a personhood declaration and then there has not really been because this is, in many ways, this is a litigation strategy.

 There has not been - they have not worked through all of the ramifications. And so what you would end up having is a web of additional statutes. You'd have a web of additional regulations. You would have an emerging strand of state jurisprudence in each one of these states.

So essentially, you know, if there is no personhood in the Fourteenth Amendment, but the court says that a state can define personhood, all of that complexity goes back to the individual state. And so the short answer to your question would be: well, that would be something that Alabama courts and Alabama legislatures would have to decide.

Rosen: [00:46:14] Mary, would this fetal personhood recognition state-by-state dramatically ratchet up the polarization of the abortion debate and how would it play a politically? I know we've been discussing the constitutional aspects, but Thomas Edsall has just issued a piece in the New York Times noting that according to the latest Gallup poll: in the last decade, support for unrestricted abortion rights has grown from 21 to 29 percent while the percentage backing a complete ban has fallen from 21 to 18 percent and consistently with the polls really since 73 supermajorities.

The most recent one is 62-34 believe abortion should be legal during the first three months of pregnancy and even larger majorities support restrictions on abortion later in pregnancy. So, you know with the possibility of murder prosecutions for IVF, dramatically, settle this debate and how big a deal is it?

Ziegler: [00:47:07] I think it's a quite big deal. I think in many ways pro-life groups after Roe were fighting on favorable political train for just the reason that you mentioned Jeff, which was that many Americans were in favor of abortion being legal but in favor of it being restricted. And so pro-choice groups were in the position of having to constantly fight restrictions, which made it easy for pro-life groups to paint them as extreme.

Now you have pro-life groups defending laws like the ones you see emerging from Alabama and Georgia, which makes it easy for pro-choice groups to paint them as extremists. At least if you look at what many polls say Americans want, I agree with David that there has been some sorting of Americans into deep blue and deep red States.

But of course, I live in Florida, so it's not always the case. There are many states that are purple and conflicted about this. And those are often the voters you see redefining their positions on whether they support abortion being legal in all, no, or only some instances. And we have some historical evidence for that.

For example, when the main abortion issue in the news was so called “partial birth abortions,” you saw a lot of Americans going the other way. And for the first time in a kind of sustained way in American history, a lot of Americans beginning to say that they didn't support legal abortion under every circumstance - Gallup has really interesting writing on this - and so I think you would expect to see if those Americans in the middle in purple states becoming potentially more hostile to the pro-life movement as a whole. Maybe it's unclear whether they would actually vote that way - to what extent that would be an issue that brought people to the polls, but I think that's one of the reasons you see a strategic fracture in the pro-life movement right now about whether these laws are wise because there's been a long-standing view among some pro-life lawyers that Planned Parenthood v.  Casey came down the way it did because the court perceived popular opinion to be behind a right to choose abortion and many pro-life lawyers believe that unless the court no longer believed that regardless of its membership that Casey would remain the law.

And so what we're talking about when were talking about abortion has a lot to do with what popular opinion actually would say in terms of whether people overall view themselves as pro-choice or pro-life or somewhere in between. So, I think there's more of a possibility of backlash, certainly on Election Day, but maybe even in the Supreme Court if that belief about the courts investment in popular opinion is actually true.

Rosen: [00:49:32] Last question David and then we'll go to closing arguments. Do you agree that there is a danger of backlash if states recognize fetal personhood or not? And is it wise for the pro-life movement to embrace fetal personhood or not? You've written powerfully on this, as has your National Review colleague Ramesh Ponnuru. What is the thinking about the wisdom of recognizing fetal personhood?

French: [00:50:02] It's split. You know, I would say there's a sort of a double backlash phenomenon here. So, it's absolutely correct to say that, to the extent, that sort of, what's perceived as an extreme view on one side or the other, becomes sort of the face of the national argument. That can have national political implications.

So if the face of the pro-choice movement is for example, the New York - New York's new law which liberalizes the availability of abortion in the third trimester when it's the least popular according to National polls. Well, then there was some wold say, well that that helps the pro-life movement because the face of the abortion argument is then this one view on the left, sort of the left edge.

But then if the Alabama law is the face of the national argument then that's going to hurt the pro-life movement because it's moving the national conversation to sort of the right edge of the argument. But one of the things that that ignores is that for these local politicians the impact on the national debate is not their primary concern.

Their primary concern is their own, is representing their own constituents. And will they be able to continue to represent their own constituents? So there's this sort of double backlash phenomenon. On the one hand you have these sort of national lawyers and national activists weighing in and saying, “Alabama, what you're doing is bad for the national cause,” or, “New York what you're doing might be bad for the national cause,” but at the same time you've got New York politicians and Alabama politicians who represent their own constituents and their constituents are saying, “this is what we want.”

And I think one of the realities that you're seeing in some of these southern states and midwestern states is they've essentially already passed the laws that they can pass, to a large degree, that are arguably consistent with Casey to make a pro-life - to take a pro-life stance. They have exhausted the incremental approach. And so they don't see any downside in going beyond incrementalism and are frankly unconvinced by sort of this that they have to take one for the national team.

And so I think when on the incrementalism versus sort of throwing down the gauntlet approach, my argument has been, and this goes back to something you said very early in the podcast, Jeffrey, that you can't get what you don't ask for. And if all the laws the Supreme Court reviews are these various criminal laws, it can in theory uphold all of them without doing - without changing the Casey “undue burden” standard.

However, in that case, you may never know and you might not understand whether or not there is a majority there to overturn Roe in this circumstance. I think it's important to begin to understand: does that majority exist? And even if the states - the court is going to refuse to hear these cases then that's important to know as well.

And the last thing I would add to this is: It is - just think of the extent to which the federal judicial confirmation battles have come to dominate American national politics and they dominate American national politics. Yes, a little bit because of the free speech or religious liberty type cases, but predominantly because of the abortion cases and I think there is a - we're going to have to reach a point.

It's we're going to have to reach a point where we're going to know are Roe and Casey going to be the law of the land. Or are Roe and Casey actually in peril? And if Roe and Casey are going to be the law of the land, that has massive national political ramifications, especially around these judicial confirmation wars.

 If Roe and Casey are actually in peril, it's the same thing in a different direction. But right now there's an enormous amount of uncertainty around these things and one way to get to certainty is by asking the court for certainty and that's what multiple states will be doing.

Rosen: [00:54:17] Well, it is time for closing arguments in this completely fascinating discussion. And the question I'm going to pose to each of you is the question I'm going to set as home work for our We the People listeners and it's a two-part question. First, do the states have the constitutional authority to define fetal personhood and, second, does the Constitution itself take a position on fetal personhood or not? And the closing argument is to Mary.

Ziegler: [00:54:45] Well, I think that the constitution itself doesn't take a position on fetal personhood and that if whether the states have the authority to define it for themselves or not depends, as we've been saying, entirely on the fate of Roe and Casey and unless or until the court overturns those decisions then states plainly don't have the authority to recognize fetal personhood.

Rosen: [00:55:09] And David last word is to you. Do the states have the Constitutional authority to define fetal personhood and does the Constitution take a position on fetal personhood?

French: [00:55:20] Well, as of right now because of the Roe and Casey decisions, the states can declare personhood, I do believe, however, they cannot declare personhood and then regulate abortion more strictly than Roe or Casey would permit, and so they may be able to declare personhood for other purposes such as tax deductions child support things like that.

But to the extent it conflicts with the abortion right created by Roe and and sustained through Casey. They're not going to be able to do it without Roe and Casey being overruled. I mean, I think that that much is absolutely crystal clear.

I don't believe the 14th Amendment, under the original public meaning, has established personhood of the unborn child. Which is why I don't think that a reversal of Roe would lead to a federal ban on abortion. But I do believe that the right of privacy is - that this Federal right of privacy - is not a manifestation of the original public meaning of the Bill of Rights or the Civil War amendments.

And so that's where Roe and Casey are: vulnerable. But I do think from the standpoint if you are a pro-life person, the personhood argument is the most scientifically and intellectually consistent argument you can make to the court, which is one of the reasons why these state legislators are trying to make that argument.

Rosen: [00:56:51] Thank you so much David French and Mary Ziegler for an Illuminating, rich, and balanced, and really educational discussion of this crucial question of fetal personhood and the future of abortion and the Constitution. Dear, We the People listeners, you heard the homework. First, do states have the Constitutional authority to define fetal personhood and, second, does the Constitution take a position on fetal personhood? And in the course of your answer if you want to take the time to write to me at JRosen(at)constitutioncenter.org.

You can tell me whether or not you believe, as a constitutional matter, that Roe and Casey should be overturned or not. In the meantime, once again, it's been an honor to have you both, David, Mary. Thank you so much for joining.

French: [00:57:35] Thank you.

Ziegler: [00:57:35] Thanks for having us.

Rosen: [00:57:40] Today's show was engineered by David Stotz and produced by Jackie McDermott. Research was provided by Lana Ulrich and the Constitutional Content Team. Please rate, review, and subscribe to We the People on Apple podcast, and recommend the show to friends, colleagues, or anyone anywhere who is hungry for constitutional education and debate.

 Remember always, Dear, We the People friends, the National Constitution Center is a private nonprofit. We rely on the generosity, passion, engagement, and willingness to do homework every now and then of people like you across the country who are inspired by our non-partisan mission of constitutional education and debate. It is such an honor to host such thoughtful discussions like these about our most contested constitutional issues.

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On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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