LINK Opinion | Allowing abortion before 15 weeks, and barring it after, would be in line with the original meaning of the 14th Amendment - The Washington Post
Opinion: A middle ground on abortion that originalists should embrace
October 26, 2021
As the Supreme Court weighs the future of Roe v. Wade, one of the chief arguments for overruling the case — and allowing states to ban abortions throughout pregnancy — is that the right to abortion is inconsistent with the Constitution’s original meaning.
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The problem with this argument is that it is historically inaccurate. If the conservative justices wish to be faithful to the Constitution’s original meaning, they should not eliminate the right to abortion. Instead, they should restore it to the position that characterized American society throughout our early history, recognizing a constitutional right to abortion early in pregnancy.
This understanding would allow states to prohibit abortion after 15 weeks, just as Mississippi has done in the case to be argued Dec. 1. But states could not ban abortions any earlier. A moderate ruling of this kind could be just what the court needs to restore its battered credibility.
As Justice Amy Coney Barrett has explained, originalism is the philosophy that the Constitution has “the meaning that it had at the time people ratified it.” In the context of the 14th Amendment — the provision that Roe held encompasses the right to abortion — originalist justices have asked whether a right is “deeply rooted in this nation’s history and tradition.”
Time and again, they’ve answered this question by pointing to a historical consensus under state law. As leading originalist and former federal judge Michael McConnell has shown, the 14th Amendment’s original meaning requires “a substantial consensus of the states” to recognize a right over time. Thus, when Justice Antonin Scalia dissented from the court’s 2003 decision recognizing a right to same-sex sexual activity, his reason was that at the time the 14th Amendment was ratified in 1868, only five of the 37 states in the union permitted the practice.
Opinion: There is no middle ground in the Mississippi abortion case. The court must overrule ‘Roe.’
The importance of a state-law consensus is why antiabortion advocates have long rested their argument on the similar claim that when the 14th Amendment was ratified, 27 of the 37 states banned abortion throughout pregnancy. The state of Mississippi makes this claim in Dobbs v. Jackson Women’s Health Organization, the pending case, and no fewer than five amicus briefs repeat it.
This claim is wrong, grounded on a series of historical errors. The foundational mistake is the failure to grapple with the long-standing rule that abortion was legal so long as it was performed before quickening, the first noticeable fetal movement that often occurs at 15 or 16 weeks.
The concept of quickening is crucial because people understood it to represent the first sign of life. Sir William Blackstone, an 18th-century jurist whom originalists deem a “preeminent” originalist authority, wrote that abortion is unlawful only after a “woman is quick with child” because that is when life “begins in contemplation of law.” As historian James Mohr has explained, the “distinction between quick and unquick” pregnancies was “virtually universal” in 19th-century America.
This historical reality undermines the 27-state claim. For instance, antiabortion advocates include Oregon in their count. Yet Oregon’s own prosecutors recognized in 1909 that, under the state’s 1864 abortion law, “abortion is not a crime . . . Unless it results in the death of the mother, or of a quick fetus.”
Alabama and Nebraska are two other faulty examples. The Alabama Supreme Court declared in 1857 that abortion was not punishable by Alabama law unless “the woman was ‘quick with child,’ ” a fact at least one pro-life writer has conceded. And the Nebraska statute forbade only giving “any poison or other noxious or destructive substance” to a pregnant person. Safer abortion procedures remained legal.
The more accurate statement is that just 16 of 37 states prohibited abortion throughout pregnancy when the 14th Amendment was ratified. To put it in originalist terms, every single state recognized the lawfulness of pre-quickening abortion at the founding. And a substantial consensus of states continued to embrace this deeply rooted tradition in 1868.
Even the 16 states that banned pre-quickening abortions should hold dubious weight for originalists. Their laws were enacted in response to an all-male medical lobby that argued abortion was inherently “disastrous” to women’s health and that a woman was so “prone to … derangement” that she should not be “allowed to judge for herself in this matter.” Originalism is bound no more by these distorted views than it is bound by historic laws rooted in bigoted beliefs about white supremacy.
As much as this history undermines antiabortion forces who claim there is no constitutional protection for any abortion right, it also suggests that the existing rule, which prohibits states from banning abortion until fetal viability at about 24 weeks, lacks originalist support. Virtually every state in 1868 banned abortion after quickening.
This outcome might be far from ideal for either side in the abortion wars. Yet in this deeply polarized moment, an originalist abortion middle ground may be the best the court — and the American people — can hope for.
Aaron Tang is professor of law at the University of California at Davis.
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15 comments
Feel free to reply to any comment by clicking the "Reply" button.I doubt the pro-fetus, pro-forced birth zealots will be satisfied with anything less than making abortion a class one felony and seeing women imprisoned for having an abortion.
Charles1971
Level 7
Nov 16, 2021
2
It should be up to the woman carrying the pregnancy.
BitFlipper
Level 8
Nov 12, 2021
2
Hmmmmmm, "allowing", you stopped me at "allowing", AS IF it was anybody else's business, nevermind them having the right/power of overseeing someone else's body & life.
So I guess we stop using DNR's?
Because the same principle, yes? Bodily autonomy?
AnneWimsey
Level 9
Nov 12, 2021
3
Originalism is akin to religious fundamentalism. The Constitution, including the 14th amendment, if it is to have any relevance, cannot be locked in a time capsule of the white, middle-aged men who wrote it.
That religions in the United States have continued to survive is due in large part to the fact that they no longer heed a majority of the commands found in their scriptures. In short, religions have been forced, by changes in human thought, to “liberalize.” This is not an endorsement of religion, but a castigation of orthodoxy! And conservative judges practice their own form of orthodoxy, particularly when resorting to originalism.
p-nullifidian
Level 8
Nov 1, 2021
5
There is NO Middle Ground, a woman's body is and ALWAYS will be her sole Property of hers and hers alone despite the misogynistic trash and drivel that the Bible-Thumpers, the God-mobster and their Arse-licking, cow-towing, money-grubbing, two faced Politicians would have us think.
Triphid
Level 9
Oct 31, 2021
3
I've stated it before countless times and I'll keep on stating it until the end of the Universe if necessary, HER BODY, HER CHOICE, Keep YOUR Religion OUT OF HER Genital Region, Keep God out of everyone's Bedroom, Keep your Rosaries away from her Ovaries.
Triphid
Level 9
Oct 31, 2021
7
A basic claim of the idiots is that abortion is being used as birth control. Those people's parents should have used a condom.
DenoPenno
Level 9
Oct 31, 2021
5
Or had an abortion. 
How about if men are only allowed 30-second erections?
Because control of other's bodies is Important!!!!
AnneWimsey
Level 9
Oct 31, 2021
6
For a lot of men 30 seconds would not be a limitation! 
@p-nullifidian sadly True
All men should be allowed one ejaculation after puberty (to freeze the sperm for future use), then castrated.
All pregnancies are 100% the fault of men.
@AtheistInNC Well, that's kind of a silly statement.
@JeffMurray I guess you'll have to define 'silly' then.
@AtheistInNC Because no man has ever had his semen stolen and no man has ever been raped? cough Mary Kay Letourneau. cough Even if you wanted to say all pregnancies from consensual sex were "the man's fault" (which is also ridiculous because you need an ovulating woman for a man's sperm to create a zygote, and she needs to have a hospitable womb for implantation) that still doesn't account for women obtaining sperm in other ways and impregnating herself which in no logical, rational way could be a man's fault.
@JeffMurray
HAhahaha
Well, if you are using Mary Kay Letourneau as the example - no man was raped, or she wouldn't have gone to jail on the charges she was convicted of. So you are wrong.
And if you try to use the word 'male' rather than man, the kid was technically raped due to his age, but there is a theory that he was a willing participant. I doubt you will be able to prove otherwise with actual facts, and not heresay.
Second, list an example of "account for women obtaining sperm in other ways and impregnating herself". [That has to be the work of a very determined sperm bank employee, or a woman / vampire bat combination. I absolutely HAVE to hear this story.]
As far as I know ... a man had to be involved to get sperm, so my statement stands - take the man (which removes the sperm) out of the equation and the woman does not get pregnant. Q.E.D. [Quid erat demonstrandum], all pregnancies are the fault of men.
@AtheistInNC You really didn't know I was going to be a able to make you look foolish with that claim of yours??
Never met the man, never had sex with him, admitted it in court on the record, stole his sperm without his knowledge or consent, impregnated herself, then fuckin' SUED HIM AND WON!!
Even if the child was willing, it doesn't mean he wasn't raped. Would you make that same argument if it was a female student? You'd actually say a 12 year old GIRL was asking for it, cause if you would, that's disgusting and you should be ashamed.
@JeffMurray Didn't make me look foolish; I asked for the story because I didn't think it plausible. So, gave a link to the story. That doesn't make me look foolish.
Your last paragraph makes no sense. Rape (except for the statuatory kind) implies non-consent. You lead with "Even if the child is willing ..."
I never said ANY child "was asking for it". Don't say I said things I did not. You should be ashamed for that.
@AtheistInNC Exactly, statutory RAPE. I said raped. You said no man was raped.
And you DID essentially say he was asking for it!!
"And if you try to use the word 'male' rather than man, the kid was technically raped due to his age, but there is a theory that he was a willing participant. I doubt you will be able to prove otherwise with actual facts, and not heresay."
"implies non-consent. You lead with 'Even if the child is willing ...'"
I'm gonna let you in on a little secret, you can be willing AND STILL BE RAPED IF YOU DON'T HAVE THE CAPACITY TO CONSENT. Jesus fucking christ, this is like pulling teeth. How the fuck do you not know this shit?
You are downplaying CHILD RAPE by saying it was technically rape, but that he was a willing participant and that I likely couldn't prove he wasn't!! What the fuck kind of double standard, rape apologist shit is that? Are you fucking serious?! The KID was fucking TWELVE GOD DAMNED YEARS OLD. You would NEVER fucking say that about a 12 year old girl that got raped by her male teacher. (And if you would, you're fucking disgusting.)
@JeffMurray
Dude, eat a snickers.
All that anger from me saying "All pregnancies are 100% the fault of men".
YOU are the one who brought into the conversation stealing semen and child rape, not me.
What awful thoughts are on your mind all day? Yikes!
@AtheistInNC Recognizing real would events and adjusting my beliefs accordingly doesn't make it awful, it just means I'm not a myopic idiot. You're the one that made ridiculous claims you couldn't support.
If these shitty laws included making men pony up child support at 6 weeks, they would vanish.
Beowulfsfriend
Level 9
Oct 31, 2021
12
pony up child support starting after 6 weeks of pregnancy, when an abortion no longer is an option.
Pay for all the pre-natal visits, loss of wages due to missed work, and all the health care for the child until the age of 21.
THAT would stop the stupid fucks from saying abortion is bad.
@AtheistInNC As much as I'm for eliminating abortion bans, I don't think that would work. The lawmakers and courts have leaned hard against men's rights in this arena, so there's no reason to think a little more anti-mens'-rights would change anything.
Just ask for allowing what the Puritans accepted - abortion until quickening. Quickening is when the mother can feel movement and often doesn't happen until the third trimester.
Beowulfsfriend
Level 9
Oct 31, 2021
4
I wish the discourse over the fact that men cause pregnancy and that they need to take responsibility for their emissions was as long as this one....alas....
Freespirit64
Level 8
Oct 31, 2021
9
If they want to control pregnancy then vasectomy every male in preteens until he gets permission/contract from a female to impregnate her. Problem solved. YW.
@Leelu Yes! This! As long as we continue to oversexualize women and girls and fail to raise empathetic and respectful men....this is an excellent idea.
@Freespirit64 Part of it is backward thinking. Women don't "get" pregnant, men "impregnate" them. Women go all their lives without ever becoming pregnant until a man deposits his sperm so the scientifically logical response to reducing unwanted pregnancies is to control the man and his sperm not the woman and her uterus (which is closing the barn door after the horse has escaped).
If you take the religion out of the equation and speak to the logic of the problem then controlling sperm is the answer. Of course, men have had all the power in the past and most even now so I think we all know putting any restrictions on their behaviors won't go over well.
@Leelu @Freespirit64 It's good to know that zero women ever in the history of mankind have every stolen semen, or raped a man.
@JeffMurray 100% of all pregnancies are created by sperm. Not sure why we legislate the field when it's the plow creating all the problems. You don't like it? Boo boo. Wrap your dick, make sure you're raw dogging someone who wants your kid or get snipped.
- I want all fetuses to be aborted, so don't threaten me with a good time.
- That's a nonsensical argument for two reasons:
a. It's like saying all peanut butter and jelly sandwiches are caused by jelly because you have to have jelly (sperm) even though you necessarily need the peanut butter (egg) and the bread (womb) as well. Even if you still want to illogically claim the pregnancy is the man's fault, the baby would still be the woman's fault, because she's the only one that can choose to bake the bread or take it out of the oven.
b. Women have raped men. More often than not it's an older woman sleeping with an underage boy, but that fact still remains. Women have also stolen semen from men with the express purpose of using it to get pregnant. For these reasons, even if you can't see why your argument is nonsensical because of a, you should still be able to realize that it's wrong because of b. - Who cares who's "fault" it is. That seems like a dumb thing to concentrate on. Let's stick to the facts that matter. Women should have bodily autonomy all the time, no matter what. Any woman should be allowed to abort any fetus at any time for any or no reason whatsoever because to put restrictions on that destroys bodily autonomy. Period. Anything else is just distraction and opens you up to counterargument. I can't think of, nor ever been presented with, a logical counterargument to 'people should have bodily autonomy'. The only thing opponents have is examples of other areas where we don't have bodily autonomy, but that's not an argument we should lose more autonomy, but rather an argument where we should gain more.
The opposition to abortion is pure culture war propaganda. Christians plainly do not give a shit about life before or after birth. They only care about corralling their sheep, and doing their best to control and abuse the rest of society. Anti-abortion is strictly the imposition of an artificial religious value on others as a means of demonstrating their dominance.
racocn8
Level 9
Oct 31, 2021
11
Granted that judicial precedent will be raised (and likely ignored by some of the justices) in the Mississippi case. But why should anyone (outside of SCOTUS) be satisfied with judicial precedent that is based on the scientific ignorance of centuries ago?
The author of RepectPeople(dot)org argues that quickening is a meaningless point to mark a transition in the development of moral personhood. She makes a very logical and persuasive case that the period from 23 to 27 weeks (a window of time, because of the gradualness of development) is critical. That's the period of gestation when connections form between the thalamus and the brain cortex, making feeling and thought possible; before that, they are impossible.
Because late-term abortions are practically invariably due to emergencies (and why should legislators or judges be interfering in emergency medical procedures?), I personally think that all women should have access to free and legal abortion on demand until labor begins.
nicestuff
Level 7
Oct 31, 2021
11
The Cranial Cavity forms at 8 weeks, I've read, and our very first sensation is that of touch. I think that an electromagnetic parasite takes residence in that cavity as soon as it has formed and starts making synapses at birth (when more data becomes available). Because it is electromagnetic it is eternal so there's no such thing as murder of the soul. Even Catholics should not believe we humans can murder a soul, however, therefore the abortion issue is about control and power over a woman. So long as a growth is dependent upon its host it has no rights to anything.
@rainmanjr A worm has the sensation of touch, and nobody (except the Jains) argues that it's morally wrong to kill a worm, as for instance by baiting a hook.
My personal feeling is that the formation of the forebrain is the mark between "person" and "fetus", but, again, my personal feeling doesn't give me the right to impose that judgement on a woman.
And in the case of Rand Paul, Raphael Cruz and Mitch McConnell, after labor as well.
They need to rebrand abortion. Call it "blastula removal" until 27 weeks.
Ask all the Qupublicans "If a woman had a blastula condition, should a doctor remove it at her request before it becomes a blastocyst?" and ALL of them would say "yes" because blastula and blastocyst just sound nasty.
blastula: noun
An early embryonic form produced by cleavage of a fertilized ovum and consisting of a spherical layer of cells surrounding a fluid-filled cavity.
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