This piece by Garret Epps at the Washington Monthly makes the observation that the anti-abortion zealots aren’t going to just settle for overturning Roe vs Wade out of some fealty to the idea of states’ rights. No, they are going to seek a way to ban it altogether.:
Abortion’s opponents don’t want to stop it only in red states. Abortion-rights proponents don’t want women to have the right to choose only in blue states. Both sides are fighting over choice itself.
This backdrop, I suggest, may well be the context of an amicus brief filed with the Supreme Court on July 29 by two eminent conservative intellectuals: John Finnis, a philosopher who taught for two decades at Oxford and now holds an endowed chair at Notre Dame, and Robert George, who teaches legal philosophy at Princeton and runs its James Madison Program in American Ideals and Institutions. Both men are widely respected across the spectrum of constitutional philosophy and have influenced decades’ worth of young scholars. I read essays by Finnis while still in law school, and others by George after I became a professor, and admired everything about them except their religious premises, which I reject. Their ideas are extreme, but no one in law would call them fringe figures or question their sincerity.
Now, as an apparent anti-abortion victory looms, the two suggest that the movement hit the trail for fresh fields and pastures new. Its aim, they say, should be to make all abortion illegal: The prohibition of abortion, they told the Court in their brief, is “constitutionally obligatory because unborn children are persons within the original public meaning of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.” No state can permit it, they say.
The possibility that the Court will, during the October 2021 term, enact this rule is slim. But the brief is worth noting for a couple of reasons. First is the clear intent to insert into the dialogue the idea that no state can allow legal abortion. In late summer 2021, that may seem radical even to some anti-abortion activists; but, as Samuel Johnson once said, “Reason by degrees submits to absurdity as the eye is in time accommodated to darkness.” Shifting the terms of the discussion is a crucial first step toward winning the debate. Consider that, since Roe was decided in 1973, the needs and rights of pregnant women have been slowly but surely erased from the legal dialogue. The fetus is the star of most “pro-life” propaganda, and the needs of the fetus—its heartbeat, or its capacity for pain, or its constitutional status—are the center of the discussion. With women’s privacy, health, and equality removed from the equation, the only question is what rights an unborn fetus may possess. And the new answer offered by these eminent figures is: fetus, all of them; woman, none.
This brief now asks the Court for one of the most radical doctrinal shifts in American history. We can understand why the two philosophers want such a shift—they believe that any fertilized egg is a full human person, and thus any rule that allows the termination of a pregnancy after conception involves a very serious offense against their morality. To go further, they have at their disposal respectable (if, I think, grievously wrong) philosophical arguments why the law should adopt that philosophical position as a legal rule. But what is appalling about this brief is that, instead of just making those arguments as friends of the Court (“We are two eminent philosophers, and we want to point out to you that philosophically your current jurisprudence is flawed”), they present this not as their own idea—heaven forfend!—but as “the original public meaning” of the Fourteenth Amendment. By amassing a distinctly odd survey of the historical record, they solemnly assure the justices that any “legally educated” member of the public in 1868 would have understood the reference to “person” in the due process and equal protection clauses as meaning the unborn at any stage. That means that the “original public meaning” of the Fourteenth Amendment was that abortion could never be allowed.
I think you are all aware of right wing legal thought cynically using “originalism” as their excuse for turning back the clock. If you read on, you’ll see how bogus these claims are. But they will nonetheless be deployed as an excuse to ban abortion rights in America if the 5 Trump Court extremists have their way.
I would expect that the anti-abortion industrial complex may want to delay that so they can continue to rake in money and grow their influence by fighting abortion in the blue states. But eventually, I have no doubt that this court will ban it. The majority are Catholic extremists (plus Gorsuch, who is an Episcopal extremist.) This will be their legacy and they know it.