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An Originalist Case for an Abortion Ban

Conservatives must push back against a positivist, value-neutral originalism.

Senator Graham Introduces The Protecting Pain-Capable Unborn Children From Late-Term Abortions Act
Sen. Lindsey Graham (R-SC) waits to speak during news conference to announce a new bill on abortion restrictions, on Capitol Hill September 13, 2022 in Washington, DC. (Photo by Drew Angerer/Getty Images)

I am an originalist who was mugged by Bostock. Yes, I coined that phrase. Nerdy conservative lawyers: you heard it here first.

Simplified, originalism holds that when judges interpret the Constitution and statutes, they ought to limit their interpretation according to the original public meaning the words had at the time they were enacted. The Supreme Court released the Bostock decision in 2020. The opinion, written by distinguished originalist Justice Gorsuch, held that Title VII of the Civil Rights Act, which was enacted in 1964 and which forbids discrimination because of an individual’s sex, forbids firing an employee for being gay or transgender. I have read the opinion closely, can follow Justice Gorsuch’s positivist logic, and have come to the conclusion that something has gone terribly wrong, for the simple reason that nobody in 1964 thought that “because of an individual’s sex” meant because of sexual orientation or transgender status. That is simply not what those words meant.

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In recent years, and especially in the wake of the Bostock opinion, many conservative lawyers have felt that the originalism in which we were formed leaves something to be desired. Conversations offering “common good constitutionalism” as an alternative have been promulgated by legal scholars such as Adrian Vermeule and Patrick Brennan. This framework, grounded in the classical legal tradition, is philosophically intriguing. The details of this emerging conversation are beyond the scope of this essay, but they certainly do have something to contribute to the conversation about conservative legal theory.

I maintain, however, that originalism remains the most convincing practical method of judicial interpretation. I have not yet found, in Common Good Constitutionalism or elsewhere, a replacement methodology that would give judges as objective a framework with which to do their job. Granted, I am no legal scholar; the common good constitutionalists might well be proposing something good, true, and beneficial that I simply have not yet properly grasped. In the meantime, I find originalism to be the best—or at least the least bad—philosophy to guide American judges.

One of the scholars who has convinced me of the continued legitimacy and reasonableness of originalism is John Yoo, a professor of law at Berkeley Law School. Professor Yoo has done excellent work on, among other things, the history and scope of executive power in America. Because I have such respect for Yoo’s legal scholarship, I was surprised at an op-ed he wrote in the Washington Post last month against Senator Lindsey Graham’s federal abortion legislation. Conservatives need to be clear about the legal options available regarding abortion in a post-Roe world. Yoo is an influential conservative voice, so while his op-ed is over a month old at this point, it is important to push back and point out that there is not only a conservative case, but a consistently originalist case, for conservative causes such as federal abortion legislation.

Two things stand out about Yoo’s op-ed. First, the piece confuses the concepts “it is an issue for the legislature” and “it is an issue for the states.” I have written about this here previously, but the mistake is being repeated in influential conservative circles and needs to be constantly addressed and refuted. The Dobbs opinion clearly states that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Yoo inexplicably concludes from this that “when the Constitution is thus silent, the court held, the political process in the states will decide abortion.” Yoo then laments that “enterprising members of Congress were not deterred” by this high court ruling sending the abortion issue back to the States. 

That is because no such ruling exists. The Court explicitly wrote that it is time to return the abortion issue to “the people’s elected representatives,” which obviously includes Senator Lindsey Graham and the U.S. Congress. It is still entirely unclear why commentators such as Yoo are claiming that Dobbs requires abortion to be legislated at the state level only and not by Congress. Unless I am missing something, this is nowhere to be found in the Dobbs decision. This is not an originalist reading of the Constitution nor of Dobbs.

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Second, Yoo reads Lindsey Graham’s proposed 15-week federal abortion ban and puts him on notice that “the Constitution does not permit Congress to directly overturn a Supreme Court decision.” And of course he is right, but that is not what this proposed piece of legislation would do. Dobbs ruled that there is no constitutional right to abortion, and that it was an issue to be decided by the democratic process. A 15-week abortion ban would in no way “overrule” a Supreme Court decision; it would simply declare that since the Constitution was silent, the legislature was creating a statutory—not constitutional—abortion ban after 15 weeks. 

The argument for a federal abortion ban can be articulated simply and clearly. Under the Fourteenth Amendment, no state shall deny any person life without due process of law. Unborn children in the womb are lives, and each abortion denies a person life without due process of law. Therefore, Congress may use its power under the Fourteenth Amendment to enact legislation to ensure that states are not denying life without due process. 

While this has never been done before, it is consistent with the original meaning of the Fourteenth Amendment. The amendment was enacted to protect the lives, liberties, and property of freed African-American slaves because states were oppressing this unprotected class of citizens. It is reasonable to make the analogy that unborn children in the womb are also an unprotected class of citizens being oppressed by state abortion laws. This is an originalist reading of the Fourteenth Amendment.

In the mind of this originalist, there is nothing in the Constitution or in Dobbs requiring that the abortion argument take place only in the states and not in the halls of Congress. Conservatives must push back against this neutered version of originalism. There has been an attempt to corner originalism into a completely positivist, value-neutral corner, where judges blandly read the law and punt on any legal problem that contains a moral issue. Many times, it is true that the original public meaning of the Constitution or a statute is truly silent on a moral question, or does not give conservatives the answer they want. But that is not always the case. 

It seems many in the originalist camp would like to insulate themselves from the culture war by making the work of judges as uncontroversial as possible. That should not drive every bold conservative away from originalism, searching desperately for an alternative. The written Constitution explicitly states that it “shall be the supreme law of the land” and it is a rather conservative document. If conservative judges stick to originalist principles and interpret law according to its original public meaning, they have a method of interpretation that restrains the personal impulses of judges and goes a long way to protect against tyranny, uphold conservative liberties and values, and check the excesses of big government intrusion into daily life.

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