Abortion, Slavery, and Constitutional Meaning

This essay is one of the editor’s picks on abortion and infanticide. Read related articles here. 

“If abortion is murder, those who would tolerate it are no more worthy of respect than those who would tolerate slavery.” So wrote Michael Sandel in the The New Republic in 1996. Sandel is pro-choice and believes that, in most circumstances, abortion should be a protected liberty. But even if he disagreed with the proposition that abortion is murder, he still saw an analogy between the nineteenth-century debate over slavery and the twentieth-century (and now twenty-first-century) debate over abortion.

In Slavery, Abortion, and the Politics of Constitutional Meaning, Justin Buckley Dyer offers an analysis of the way in which this analogy plays out in scholarly debates and American public life. While scholars and specialists may have already encountered much of this ground, they will benefit from a detailed and explicit analysis of the parallels between the logic of legal abortion and the logic of legal slavery—and the ways in which they both brought contradictions into laws and public debate. All readers will benefit from Dyer’s account of the ways in which the logic of abortion depended on history to justify Roe v. Wade and subsequent court decisions. As Dyer vividly demonstrates, some of that history was dramatically misused.

In the book’s first part, Dyer argues that “the natural law tradition . . . provided the intellectual scaffolding for both the Fourteenth Amendment and state anti-abortion laws (many of which were written during the era of Reconstruction).” When influential thinkers in the early twentieth century rejected this tradition, the Fourteenth Amendment—originally designed to protect the civil rights of newly freed slaves—became the vehicle for overturning state abortion laws.

Dyer is at his most original and scholarly in his contribution to the debate over substantive due process and abortion. The Fifth Amendment prohibits the federal government from depriving any person of “life, liberty, or property without due process of law.” In Dred Scott, the Supreme Court ruled that a legislative act barring slavery from federal territories “could hardly be dignified with the name due process of law.” In other words, the Court viewed the prohibition of slavery as so patently unjust that, to the justices, it clearly fell outside the scope of the due process of the law.

After the Civil War, Dyer points out, the Fourteenth Amendment reproduced the Fifth Amendment’s due process clause and applied it to state governments. In Lochner v. New York, the Court struck down a New York law regulating the number of hours bakers were permitted to work during the week on the basis of the natural right to freedom of contract. According to a common critique from jurists such as Robert Bork, the Supreme Court repeated the mistake it made in Dred Scott when it ruled in Lochner and Roe: It illicitly put a substantive gloss on the due process clause to strike down a legitimate law.

But, Dyer argues, contemporary opponents of Dred Scott criticized the decision for its view of slaves as property, not its substantive view of due process. For them, natural rights to life, liberty, and property provided the substance that could not be violated by the due process of the law. Dyer further argues that the road to Roe lies not in Lochner’s substantive understanding of the right to contract—as Bork contends—but in Oliver Wendell Holmes’s dissent from Lochner, which dismissed such rights altogether. For Holmes, the fundamental principles of the law were not substantive and moral, but “prophecies” or “systematized prediction” of how the public authority would react to a set of circumstances.

In his decision in Roe, Justice Harry Blackmun emphasized that the majority of the Court was not trying to resurrect Lochner’s natural-rights jurisprudence. Rather, he stated that Jane Roe was attacking Texas’ abortion law on the grounds that it “improperly invaded a right” protected, in part, by “the concept of personal ‘liberty’ embodied in the Fourteenth Amendment’s Due Process Clause.” The question then became whether a woman could or could not legally procure an abortion when the Fourteenth Amendment was drafted. Relying on New York Law School professor Cyril Means’s arguments in “The Phoenix of Abortional Freedom,” Blackmun concluded that “At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19^th century.” Likewise, he wrote, “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” In adjudicating the controversy, Blackmun wrote, the Court had to adopt a position of neutrality on the question of when life begins.

Here, Dyer concludes, we see the real parallel between Dred Scott and Roe: In both cases, “the Court treated biological human status as irrelevant to the question of constitutional personhood while constructing a legal community of constitutional persons that did not necessarily overlap with the population of natural persons.”

It is perhaps notable, then, that Means cited Dred Scott as an appropriate precedent for Roe. In Roe, the Court needed to provide a uniform national definition of “persons” as it had to do in Dred Scott with “citizens of different states.” By turning to the “legislation and histories of the times,” Justice Taney concluded that “all men are created equal” did not include those of dark skin. Likewise, Means argued, we must turn to the way in which the drafters of the Constitution and Fourteenth Amendment understood abortion and the beginnings of human life. By examining the way in which the word “person” was used in several clauses of the Constitution—such as the clause outlining representation in the House of Representatives—and by consulting a medical textbook of the time, Means concluded that the Framers considered fetuses to be non-persons.

But by returning to the primary sources, Dyer deftly shows how Means misused them for ideological purposes. A few pages after Means’s citation, the medical textbook he used declared that human life begins “immediately after conception” and concluded that abortions were the destruction of embryos that “might live, and become of use to mankind, and as they may be supposed indeed from the time of conception, to be living animated beings, there is no doubt but the destruction of them ought to be considered a capital crime.” In short, Dyer concludes, Means’ use of the medical treatise to prove the contrary was “either deliberately dishonest or grossly negligent.”

Means also argued that abortion was considered to be a common-law liberty and that the primary purpose of nineteenth-century anti-abortion legislation was to protect the lives of women, not babies, from dangerous medical procedures. However, Dyer demonstrates that Means’s use of history was selective to the point of inaccuracy, if not mendacity. As Blackstone put it, the right to life, “inherent by nature in every individual,” “begins in contemplation of law as soon as an infant is able to stir in his mother’s womb.” Furthermore, an 1867 Ohio Senate committee report gave the following reason for passing an anti-abortion statute: “The willful killing of a human being, at any stage of its existence, is murder.” Dyer continues: “The men who voted to approve this bill and ratify the Fourteenth Amendment in the same legislative session apparently saw no contradiction between the two.”

In the decades after Roe, historians filed briefs in abortion cases similarly arguing that the purpose of anti-abortion laws was not to protect the unborn and that abortion was common and legal throughout American history. Following the work of scholars such as Gerard Bradley and Joseph Dellapenna, Dyer shows how these briefs contradicted the previous research of some of the scholars who signed them. As one brief’s organizer put it, there was “a tension between truth-telling and advocacy.”

To put it less politely: they lied.

Dyer’s writing becomes more overtly pro-life as he argues that these lies provide a foundation for “constitutional disharmony” in our jurisprudence. If abortion by dilation and extraction is legal, why should infanticide remain illegal? Are a few inches enough to make a person? If a baby is a person because her mother wants her, why can’t an unwanted newborn be killed? Similar contradictions appeared when slaves were considered non-persons—or, in the famous constitutional example, three-fifths of a person.

In the book’s final pages, Dyer analyzes what lessons the abolitionist movement can give to modern pro-lifers. Dyer considers those misguided pro-lifers who, like the radical abolitionist John Brown, have decided to kill for the cause. Instead, contemporary pro-lifers should imitate the successful strategies of mainstream abolitionists in fighting for their cause: underscoring the humanity of those whose humanity is denied, providing compassionate care for those affected, naming the lies that dehumanize and kill, and tirelessly arguing for the truth about who “counts” as a human person.

Pro-lifers already know that the slavery analogy is a rhetorically powerful one. Because of the work of Justin Buckley Dyer, they can appreciate its accuracy all the more. ­