The Originalist Case for an Abortion Middle Ground

Few originalist arguments are as important as the claim that, at the time of the Fourteenth Amendment’s enactment, 27 of the 37 states in the union prohibited abortion at all points in pregnancy. The State of Mississippi and at least five of its amici advance this claim in Dobbs v. Jackson Women’s Health Organization, a case that invites the Supreme Court to overturn Roe v. Wade. Many scholars have repeated it as well. To originalists, the takeaway is clear. If the public in most states in 1868 understood abortion to be prohibited throughout pregnancy, then present-day state bans on abortion after six weeks—or even earlier—cannot violate the Constitution’s original meaning. The 27-states claim is thus as forceful as it is arresting. It is also wrong. This Article uncovers several historical errors on which the claim is founded. For example, the oft-repeated 27 figure includes states whose high courts interpreted the relevant abortion laws not to apply before quickening, or the first sign of fetal movement at roughly sixteen weeks of pregnancy. The 27 count also includes states whose abortion laws punished only particularly dangerous forms of abortion (e.g., via poison), while permitting safer procedures. Other mistakes abound. In one instance, anti-abortion originalists count a state as prohibiting pre-quickening abortions even though the state’s own prosecutors admitted otherwise in court. After assessing the evidence, my best sense is that when the Fourteenth Amendment was ratified, just 16 of 37 states deemed abortion unlawful at all points in pregnancy. In the other 21 states, pregnant persons were free to obtain an abortion at any time before quickening. The public in most states would have thus understood most abortions—those performed before roughly sixteen weeks—to be perfectly lawful when the Fourteenth Amendment was ratified. To be sure, anti-abortion originalists are still correct that Roe’s viability line would have been unrecognizable to the public in 1868. But just as there’s a major difference between banning abortion after twenty-four weeks and banning it after sixteen, so too is there a big difference between banning abortion after sixteen weeks and banning it after six. Of the three positions, originalism is most consistent with the middle ground. [Author's Note on 9/15/21: After further research, I've concluded that an earlier draft made two errors. First, I uncovered an additional case from Iowa leading me to conclude that the state actually prohibited abortions throughout pregnancy when the Fourteenth Amendment was ratified. I also found a case in which the State of Oregon argued that its abortion law as of the amendment's ratification did not apply to pre-quickening procedures, leading me to move that state to the set that permitted abortion before quickening.] [Author's Note on 9/23/21: An updated draft makes three changes. First, in response to incisive feedback from Prof. Larry Solum and other scholars, I no longer rest my argument exclusively on an application of the Court's due process precedents. The draft now presents an additional first principles originalist case for the right to pre-quickening abortion grounded in the Privileges or Immunities Clause. Second, Professors John Finnis and Robert George have identified a Rhode Island statute that has evaded previous scholarly attention. Their finding indisputably moves that state into the category of those that banned pre-quickening abortion at the 14th Amendment's ratification, and I am grateful for their discovery. Third, I respond (at pp.50-57) to Finnis and George's attempts to move other states to the same category, showing why their arguments are deeply misguided.] [Author's Note on 10/21/21: Professors Finnis and George have now posted a new, lengthy response paper. As with their initial reply, I am grateful for the arguments and discoveries they present. I am especially persuaded by their discussion of Massachusetts, which convinces me to move that state to the set that banned pre-quickening abortions. An updated draft reflects this change, other revisions, a slight reorganization, and a substantial new discussion of Virginia law in light of a recently discovered statutory error to which all parties in this debate have succumbed.] [Author's Note on 11/3/21: I have made two substantive revisions in an updated draft. The first is to reference important arguments in a new book by Professors Randy Barnett and Evan Bernick concerning the original meaning of the Privileges or Immunities Clause; the second is to update counter-arguments against my reading of Virginia law based on a recently discovered historical source.].