No, Conservatives Are Not Going to Rule the Constitution Prohibits Abortion

They'd like to, but such a ruling would overturn key legal principles conservatives like

Every once in awhile, a liberal writer notices that there are a few fringe conservatives who argue that not only was Roe v. Wade wrongly decided (the standard conservative position) but that the U.S. Constitution actually bans abortion. Michelle Goldberg, in the NY Times this morning, is the latest example of this. It always starts a panic- are they really going to do this? Oh my God, those conservatives on the Supreme Court are capable of anything, aren’t they?

No, they aren’t.

Supreme Court journalism in mainstream publications is full of some of the grossest errors, which are brought on because the reporters who cover the Supreme Court treat law as if it is not a specialized field that people have to go to three years of intensive graduate school and spend thousands of billable hours a year learning. As a result, they don’t bother to consult experts (i.e., practicing lawyers in the relevant areas) and just read judicial opinions, cursorily, and write about them as if they know the subject intimately. Suffice to say, this isn’t how other areas of expertise are treated- journalists tend to ask chemists, astronomers, engineers, and others about news within their fields of expertise. Not lawyers, usually, though, and certainly not Supreme Court practitioners.

And this error about the Fourteenth Amendment and abortion is one of them. Literally nobody who has actual expertise about the Supreme Court believes that the Court is going to interpret the 14th Amendment to bar abortions nationwide. Indeed, one way you can tell that is simply that no groups are bringing cases intended to bring such an issue to the Supreme Court- and this is a country full of abortion litigation. The lawyers who actually understand how the Supreme Court works know the argument is a nonstarter.

But, I am sure I hear you saying, isn’t the Supreme Court capable of anything? What about Bush v. Gore? What about when they invalidated the Voting Rights Act? And the answer, difficult as it may be to believe, is no, the Supreme Court is not capable of anything, because its rulings are generally applicable.

This is a key feature of our common law legal system. A court’s ruling on issue 1, and especially its reasoning, is precedent on issues 2, 3, or 4 as well. And since Supreme Courts, whether state or federal, cannot take more than a small number of cases a year, they can’t prevent lower courts from applying their precedents in other cases even if they wanted to.

And this means the Supreme Court can’t, in fact, make any ruling it wants to. Well, it can, but only at the cost of changing the law in a bunch of other areas. It’s like trying to knock over only one domino.

Actual experts about appellate litigation could tell journalists this. Because appellate oral arguments are basically extensive examinations into this very issue. “If we rule in your favor, won’t it mean X?”, asks Justice Smith. “What if instead of getting injured by a falling anvil, your client fell into a manhole instead? Would the result be the same under the rule you urge?”, chimes in Justice Jones.

Why would courts even care about this if they are just trying to implement political goals through their decisions? Simple. Because the ruling they issue will become the rule of decision in other cases.

Bush v. Gore was classically an exception to this. The Court could give the election to Bush because it could do it on such narrow and esoteric grounds that it would not affect any other cases. (Hence the famous footnote in the opinion saying explicitly that the case was a one-off.)

But there are very few such exceptions. And a 14th Amendment abortion ban is not among the exceptions. Here’s why. Under current doctrine, the government has no duty to protect your life. This was a decided in a case called DeShaney v. Winnebago County, where the callousness of county officials in the face of severe child abuse led to the death of a 4 year old child.

Conservatives like this doctrine. Indeed, DeShaney was written by a conservative, Chief Justice Rehnquist, with a dissent by three liberals. It’s easy to see why. A government that has a legal duty to protect its citizens’ lives is a government that is constitutionally required to enact a bunch of government programs to do so. In the case of Joshua DeShaney, that would have meant a much more robust child protective services department. In other cases, you could imagine courts ruling that Flint, Michigan had to install extensive water purification equipment and enact an expensive program to remove all the lead pipes, or big city police departments being required to protect Black lives from crime at the same level that they protect white residents, or governments being required to impose strict environmental regulations on polluters. A 14th Amendment duty to protect life is a dream for liberal activist government.

Which is why it isn’t happening. The argument that the 14th Amendment imposes a duty on state governments to protect fetuses is not a new argument. It has been kicking around law reviews and ultra-conservative discourse for decades. And yet no Supreme Court justice has adopted it. Not even Justice Thomas, who loves to write “lone wolf” opinions and to take up quixotic causes.

This isn’t because conservatives love the idea that blue states will keep abortion legal even if Roe is overturned. It’s because DeShaney’s holding is integral to any vision of limited government and a restrained regulatory state. Once the Constitution is interpreted to include a duty to protect life, the floodgates will be opened to extend this duty to serve all sorts of liberal goals, and the Supreme Court doesn’t have enough bandwidth to slap down all of them (and it would look absolutely unprincipled and do great damage to the conservative movement and itself if it held that the only life ever needs to be protected is fetal life and only from abortions, not, for instance, pollution).

And there’s a lesson in this. You can’t just pick up a legal argument that gets a bit of chatter and treat it as a serious threat. You actually have to know the subject matter, to know which arguments are attractive to courts and which ones aren’t. In short, you have to talk to experts who know these things. The people who spread this “they’re going to interpret the Constitution to ban all abortions” discourse make the mistake they do because they never actually talk to those experts and ask them about it.