Casey, Originalism, and the Moral and Legal Personhood of the Unborn

by Ryan Mulvey

Twenty years ago, in Planned Parenthood v. Casey,  the Supreme Court was given the opportunity to revisit the question of a woman’s so-called “right” to obtain an abortion before her unborn child’s “viability.”  Encouraged by the recent appointments of Justices Clarence Thomas and David Souter, pro-life advocates expected the Court to overturn Roe v. Wade.  Sadly, that reversal never came.  And despite modest gains in the fight to restrict abortion, the right to procure one, re-characterized as a personal liberty guaranteed by the Due Process Clause, remains protected.

I do not want to discuss the implications of Casey as such, nor do I want to explore the “right to abortion” as constitutional doctrine.  Rather, I would like to focus on the concept of personhood, which appears frequently in Casey, but is given little rigorous philosophical treatment.  Furthermore, I want to highlight, albeit in a cursory manner, the problem with the Casey court’s understanding of personhood, as well as the limitations of the standard “conservative” interpretive methodology, to wit “originalism,” in reaching a satisfactory alternative legal and moral conception thereof.  Ultimately, it is my belief that an earnest advocate of the pro-life position must reject, at some level, an originalist approach to constitutional interpretation.

Justice O’Connor, writing for the Casey plurality, infamously suggested that “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” is central to what it means to be free.  On this view, the intimate nature of such individual decision-making requires that the State refrain from imposing laws that define the attributes of personhood.  Whether an unborn child is a person possessing rights deserving of legal protection is simply an inappropriate question for judicial (or legislative!) determination.  By accepting this reasoning, O’Connor deprived the law of one of its primary functions: the recognition of the human person and the preservation of his natural rights.  Consequently, by adopting this position, the Casey court, as Father Richard Neuhaus bemoaned, transformed its decision into a modern-day Dred Scott.

Yet, despite the Court’s angst over judicial statesmanship, the importance of stare decisis, and its effort to stay out of one thicket of a moral question, the individualistic relativism that pervaded its opinion effectively did function as a determination of constitutional personhood.  And the unborn simply did not make the cut.  This was the result of brilliant lawyers doing poor philosophy.  While the Dred Scott court may have wrongly decided that slaves were not legal persons, it grounded its adjudication in a textual reading of the Constitution.  In Casey, the refusal to recognize the personhood of human fetuses was not based on merely a wrongful interpretation of the Constitution, but on confused notions of liberty, privacy, and human existence.

Reading the Constitution and attending to the content of its principles contemplates a philosophical act.  One cannot read the Constitution in a vacuum, but must refer to its underlying political philosophy—the theory of polity that is instantiated and concretized by its text.  Thus, we should understand the terms “person” and “liberty” in light of our constitutional culture or order.  The Casey decision does not mesh with our constitutional culture.  Instead, it rejects the philosophy that informed and animated the Founders.  The Declaration of Independence is clear:  all men are created equal and endowed with certain inalienable rights.  Self-evidentially, then, one’s personhood, and the rights entailed by the concomitant conception of human dignity, pre-exists formal legal recognition.  Contrary to the claims of Kelsenian positivists, legal realists, like Oliver Wendell Holmes, Jr., and modern day progressives, we do not require the State to “create” our personhood or “grant” us our rights.  State actions are not determinative in this way.  Instead, it is the purpose of law to recognize our pre-existent personhood, to defend our inalienable rights, and to secure our natural liberties.

Of course, one might still say: “Perhaps personality is not dependent on the positive legal order.  But we are not talking about personhood in the abstract, philosophical sense.  Courts are only concerned with what the law is, not what it ought to be.  Regardless of the ontological personhood of the unborn, they simply are not persons for legal purposes.”

Sadly, this sort of “legal dualism,” which separates questions of positive law from those of morality, has long pervaded “conservative,” even “libertarian,” jurisprudence.  Judge Robert Bork and Justice Antonin Scalia are exemplars of this sort of positivism, rejecting the principles of natural law and natural rights embedded in the Constitution’s very text.  As a matter of doctrine, they are required to accept the allowance of abortion—just not on the Federal level as a protected constitutional right.  Their own theory requires them to hold fast to the original public meaning of the term “person,” notwithstanding advances in science, in technology, and in ethical theory, which demonstrate the viability, the personhood of the unborn human being.

Even natural lawyers at the forefront of the pro-life movement are susceptible to what John Hart Ely called “clause-bound interpretivism.”  As one scholar humorously commented, it causes one to “do a double take” when you read Robert George defending the positivism of Hugo Black, yet also advocating for the protection of the unborn under the ambit of the Equal Protection Clause, which, on an originalist understanding, could never even apply to human beings from the moment of conception!

Ultimately, if we are serious about protecting human life in all forms, born and unborn, we must recognize the limits of originalism.  The approach has its virtues and is typically a prudent choice of interpretive methodologies.  It is generally a good thing to have a constrained judiciary.  Yet, when faced with the most important of moral dilemmas—controversies where we truly believe there to be a right answer—we should not be afraid to recognize the limits of originalism and transcend them.  Dred Scott was wrong for denying the personhood of the slave; Roe and Casey are wrong for denying the personhood of the unborn human child.

Our Constitution requires a philosophical, moral reading.  As Judge John Noonan of the Ninth Circuit once expressed, its content is “derived from nowhere except the natural law.”  Our law, whether we want to admit it or not, is intimately connected with and reflective of moral and philosophical principles.  And conservatives and libertarians who care about the reality of that intimate connection would do well to embrace it, rather than to hide behind a positivism that denies persons of their natural rights.

Ryan P. Mulvey is a graduate student at Boston University where he is pursing a dual-degree in Law and Philosophy (JD/MA).  He is expected to graduate in 2013, and may be contacted at rpmulvey@bu.edu.