Philosophy, the Handmaid of Judicial Review

In his most recent column here at The Catholic Thing, my friend Hadley Arkes raises the question as to why the federal courts, and the Supreme Court in particular, could not extend the protections of the Fourteenth Amendment to unborn human persons by employing the same reasoning these courts have utilized elsewhere.

What Hadley is suggesting in his query should be uncontroversial:  the courts must apply the principles of the Constitution to new realities that share the properties of those realities to which the principles have always applied, even though these new realities were not predicted or anticipated by the framers. 

In order to make this point, we need not look further than a 1970 federal district court case, Steinberg v. Brown (1970). This case was cited by the Supreme Court in Roe v. Wade (1973) as one of the many cases that had upheld anti-abortion statutes. What the Supreme Court failed to mention is that the Steinberg court upheld Ohio’s statute based on reasoning that the Supreme Court claimed the defendant in Roe, the state of Texas, did not provide, namely, evidence that a federal court had found an unborn human being to be a person under the Fourteenth Amendment. 

As in Roe, the plaintiffs employed the holding of Griswold v. Connecticut (1965) that found a right to contraceptive use and argued that this holding could be extended to include a right to abortion, since both activities involve the control of human reproduction. Unlike the Roe Court, however, the Steinberg court found the reasoning specious, precisely because abortion involves a third, unconsenting, party who was conspicuously absent from Griswold’s plurality opinion. Here’s what the Steinberg court writes:

Again the authorities are divided, some courts accepting the plaintiffs’ view, and others refusing to do so. The majority of this Court do not accept the plaintiffs’ contentions as constitutionally valid, but believes that the cases which do accept them have not been based on a proper legal or factual understanding. The plaintiffs’ contentions seek to extend far beyond the holding in the Griswold case this “right of privacy,” which is nowhere expressly mentioned in the Constitution or its amendments, but is only found in the “penumbra” of those articles. Rights, the provision of which is only implied or deduced, must inevitably fall in conflict with the express provisions of the Fifth and Fourteenth Amendments that no person shall be deprived of life without due process of law. The difference between this case and Griswold is clearly apparent, for here there is an embryo or fetus incapable of protecting itself. There, the only lives were those of two competent adults. . . .

[C]ontraception, which is dealt with in Griswold, is concerned with preventing the creation of a new and independent life. The right and power of a man or a woman to determine whether or not to participate in this process of creation is clearly a private and personal one with which the law cannot and should not interfere.

It seems clear, however, that the legal conclusion in Griswold as to the rights of individuals to determine without governmental interference whether or not to enter into the process of procreation cannot be extended to cover those situations wherein, voluntarily or involuntarily, the preliminaries have ended, and a new life has begun. Once human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it.

What the Court in Steinberg is suggesting, as Hadley has argued, is that a legal principle has universal application. So, for example, if a statute that forbids burglary became law at a time when no computers existed, it would not follow that the prohibition against burglary does not apply to computers, that one is free to burgle computers from the homes of one’s neighbors since the “original intent” of the statute’s framers did not include computers. What matters is whether the entity stolen is property, that it is a thing that can be owned, not whether it is a particular thing (in this case, a computer) that the authors of the anti-burglary statute knew or did not know to be property at the time of its passage.

The religion clauses of the First Amendment apply to religious believers whose faiths came to be after the Constitution was ratified. A Baha’i, a Mormon, or a Seventh Day Adventist is protected by the First Amendment even though these sects did not exist in 1789.

Suppose the Earth were visited by an alien race of intelligent beings like the Vulcans of Star Trek lore. Imagine that one of the Vulcans, Sarek (Spock’s father), is denied employment in Cal Tech’s astrophysics department on the grounds of race. Would Sarek’s attorney not be able to appeal to the Civil Rights Act of 1964 because the law’s framers, and the president who signed it, had no awareness of the existence of Vulcans? What matters is whether a Vulcan is a person—an individual substance of a rational nature. If he is, then the law applies to him as it would someone of African, Italian, or Jewish descent. 

Therefore, if the unborn is a person—an individual substance of a rational nature—then the Fourteenth Amendment is meant to protect him even if the authors of that amendment did not have the unborn conspicuously in mind.

Francis J. Beckwith is Professor of Philosophy & Church-State Studies, Baylor University, and 2016-17 Visiting Professor of Conservative Thought and Policy at the University of Colorado, Boulder. Among his many books is Taking Rites Seriously: Law, Politics, and the Reasonableness of Faith (Cambridge University Press, 2015).