The Constitutional Case Against a Federal Abortion Ban

Welcome to Up for Debate. On Wednesdays, I round up timely conversations and ask readers a thought-provoking question. Later, I publish some of your thoughtful replies. (Were you forwarded this email? Sign up here.)


Question of the Week

What are your thoughts or views about immigration? Feel free to write about politics, policy, culture, or personal experience. Emails about the recent controversy in Martha’s Vineyard are fine, but you needn’t address that particular news story to participate this week.

(If you’re looking for fodder to get you thinking, here’s a New York Times article that gives a sense of how quickly border towns can be overwhelmed by an influx of migrants; an argument for opening America’s borders by Shikha Dalmia; Matthew Yglesias with an immigration policy argument favoring a bipartisan compromise; David Frum and I debating immigration politics; Frum’s skepticism about Ron DeSantis’s approach; a time capsule of how immigration was debated in a Republican primary circa 1980; and Reihan Salam, author of Melting Pot or Civil War, sharing his perspectives on immigration.)

Send your responses to [email protected].


Conversations of Note

Do you remember the text of the 14th Amendment? Every time I recall that it was the basis for finding a right to abortion in the Constitution, I have to look it up anew to do a close read:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Of course, Dobbs overturned Roe’s theory of the Constitution and returned abortion to the states. But now the Republican Party is divided about whether abortion policy ought to be decided exclusively in 50 different state legislatures or if federal restrictions are warranted to protect the life of the unborn––an approach some justify by pointing to the text of the 14th Amendment, reasoning that abortion deprives the fetus of its right to life without due process of law.

Enter Lindsey Graham of South Carolina, who surprised his fellow Senate Republicans last week by proposing a federal law that would ban abortion at 15 weeks, with exceptions in cases of rape and incest or if the life of the mother is threatened. His proposal is dividing Republican officials, in part because support for legal abortion varies by state and they see the bill as a political loser as the midterms approach. (Many Republicans would much rather be talking about inflation.) But a National Review editorial made the case for the proposal. “A national 15-week limit—two weeks into the second trimester—is a bit later than the legal abortion limit in several European countries,” the magazine states, “but it would nevertheless save the lives of tens of thousands of babies killed in America each year in gruesome late abortions.”

Numerous counterarguments from a pro-choice perspective will already be familiar to readers––if they are unfamiliar to you, do check out the relevant bygone installments of this newsletter. Because today I want to focus on one of the reasons Graham’s bill divides the right, including some people who favor laws against abortion: because some of them really do believe in state’s rights and the tyranny-checking, power-sharing provisions of the Constitution.

Put another way, the GOP coalition is divided on whether the Constitution permits a federal ban. National Review’s editorial states, “We are persuaded that the undoubted federal power to defend basic civil rights under the 14th Amendment extends to this issue, as Republicans have held in their platform for decades.” But the magazine’s staffers are divided on the question. On a recent episode of its The Editors podcast, Charles C.W. Cooke, who is himself pro-life, explained why he believes that Senator Graham’s proposed 15-week ban is unconstitutional:

The Constitution as written was intended to leave the federal government as a limited partner with the states. And the Constitution accords only a handful of powers to that federal government and leaves everything else to the state. So it’s not a question of whether or not the founders and those who came after them after the Civil War were prepared to protect unborn life. It’s a question of at what level that protection is sanctioned by the limited powers that the Constitution accords. And I think that’s to turn around, having argued for 50 years, correctly, that the problem with Roe vs. Wade was that it federalized a question that is nowhere mentioned in the Constitution––that it preempted the states at the federal level on the basis of mystical, inchoate, wishful thinking––and then to indulge that wishful thinking in the other direction is a profound mistake.

Roe was nonsense. It was unmoored from the Constitution’s text and history and original public meaning. We can’t really argue, can we, that the original public meaning of the 14th Amendment was to protect unborn life? …And so I don’t look at this proposal and reject it on the merits. I look at this proposal and reject it structurally. Certainly it cannot be justified under the Commerce Clause. I would assume everyone on the right agrees with that. Abortion or the prohibition of abortion are not commerce. They’re not interstate in most cases either. And it cannot meaningfully be justified under the 14th Amendment. I also think––and this is both related to the constitutional argument and unrelated––that this is a political mistake. I think it would be entirely fair for Republicans as a party to say, This is what we want to achieve in all 50 states. But I think the American public would be forgiven for regarding what Lindsey Graham just did as something of a bait and switch. I mean, again, forget the constitutional question; the rhetorical tone of the anti-Roe movement, [of] which I’ve been a longtime member for a long, long, long time, has been that this is a question for the states. That’s how it’s been sold.

Sorry to interrupt, but Cooke is about to talk about “substantive due process,” and some of you will find it helpful to skim this summary of what that means before continuing. Now back to Cooke:

We have just fought a half-century-long war against substantive due process, the purpose of which is to read into the various provisions of the 14th Amendment license for judges to make decisions that were not and are not warranted by the original public meaning. Now, I would love it if the original public meaning of persons applied to the unborn. But it doesn’t. There’s no indication that it does. There’s no legal case that it does. There is no historical record of the authors or debaters of the 14th Amendment proposing that it does. I just do not think that we can retain our credibility and… adopt our own form of substantive due process that has the same structural effect but different outcomes.

It is always interesting to see how intellectuals react when constitutional principles they have long touted suddenly advantage a different side in a debate that they care about. I admire Cooke’s consistency and the honest grappling of his podcast conversation partners.

Gender Identity and Early Childhood Education

Last spring, I asked readers of this newsletter, “What, if anything, should minors be taught or told about sexual orientation and gender identity before puberty?” Your responses were thought-provoking; one wound up informing the feature I just published, “What to Teach Young Kids About Gender.” To write it, I spent a lot of time poring over actual lesson plans taught to preschoolers, kindergarteners, and elementary-school students in the earliest grades. I wound up focusing on a representative curriculum from a school district in Evanston, Illinois.

Among my arguments:

Although American society’s approach to matters of gender identity is clearly still in flux, and reasonable people disagree on how best to engage students on the subject, some educators are writing progressive activists’ views into detailed lessons for young children. An alternative approach might promote inclusion in the broadest, plainest possible terms and reassure children: There’s no wrong way to be you. Instead, District 65 and other systems err on the side of saying too much and mistaking dogma for established fact.

While researching the piece, I also wound up in a phone conversation with Zoe, the Up for Debate reader whose words I found so helpful. Ultimately, there wasn’t room in the piece to quote her at greater length, but her thoughts were so smart that I thought I would share a bit more here.

What to tell the youngest children about gender identity is perhaps the trickiest question, Zoe told me. “I don’t think we can teach a theory of gender that will make sense to preschoolers, because in my high-school class on gender theory—that was mostly student-led, where we read academic work on gender theory—we couldn’t come up with a theory of gender that made sense,” she said. She believes kids, even more than adults, possess imaginatively expansive notions of how diverse humans can be, and should be exposed to diversity of gender expression, as well as the fact that some people get labeled in ways that don’t fit how they feel.

However, she thinks it is useful to distinguish between what we teach children about the world as it exists and how we teach them to understand themselves. If a child introduces a question like “What does nonbinary mean?” we should describe how it is used in the world as best we can. But we should also hesitate to introduce or emphasize labels in early childhood, because young children needn’t understand the labels adults impose on the world to see and respect difference––and emphasizing labels (even as adults contest their meaning) might constrain rather than expand their ability to understand themselves and their unlabeled feelings and affinities.

“We’ve taken what are fiercely contested ideological issues and put them in a place that’s going to drive up the most opposition, which is young children,” Zoe said. “But there’s a middle ground where we’re not teaching ideology and theory, but just opening up a classroom so everybody can be a human. As long as they’re getting an inclusive worldview that allows all people that exist in their world to exist in the world, you’re set up for later questions of how do they understand themselves, because you’ve created a world in which any way they choose to understand themselves will not subject them to judgment or fear or loneliness or outright hate.”

I hope you’ll give the rest of my piece a look.

Talking It Out

I’ve lately come across three examples of people with significant disagreements attempting constructive conversations about them in the audio medium. At The Fifth Column, my colleague Thomas Chatterton Williams joins Kmele Foster and Adam Davidson to interrogate the concept of white privilege. At The Weekly Dish, Louise Perry discusses her recently published book, The Case Against the Sexual Revolution, with Andrew Sullivan. And at Common Sense, Patrick Deneen and Bret Stephens debate whether we have too much or too little freedom.

A Republican Voter Explains Himself

Earlier this week I aired your explanations for how you’re voting this fall––and lamented that so few current Republicans wrote in with their thinking. A young man who describes himself as a conservative-leaning independent and civil libertarian replied by explaining his support for GOP candidates:

I’m currently in school abroad, but I would be voting Republican if I could. I’ve moved away from the Republicans on many issues recently (mainly abuse of government power in the culture war) and do not like the trend of Republicans walking away from federalism. In an ideal world I would vote libertarian. But that would be futile, because New York has yet to implement ranked-choice voting, so I am a tactical voter. I will vote against Democrats, who I believe are worse on most issues. I hope this helps you in your search for Republican perspectives, even though I am not going to be identifying as a Republican.

I asked him to expound on what specific issues Republicans perform better on than Democrats, in his estimation. His reply was a bit too long to include in full but here is a condensed version:

I’m a short, skinny white guy who lives in a majority-minority neighborhood. I have heard gunshots too many times. I’ve been chased by unsecured dogs and shouted at by groups of teenagers. I don’t feel safe at all. (Neither do the cops; they work in two-person cars only in my neighborhood.) I’ve seen condoms in the road, a syringe, and a guy injecting himself. There are broken bottles everywhere. I don’t care what you think about the police, but the Democratic regime is not working. Racist officers are bad, and should be fired, but policing is not racist. Democrats have overplayed their hand by buying into the messaging of BLM. I will not vote Democrat for any local race for that reason.

I am a traditional, religious person.

I dislike the moral direction that the country is taking. I don’t think that the answer is legislation, but I also don’t want Democratic legislation that cuts in their direction. Say what you will about Trump’s morals, at least he’s beholden to the religious right for political support.

The culture wars are morally important to me––but if Republicans really believe that “politics is downstream of culture,” they might not want to legislate the culture. Culture-war legislation is an unnecessary expansion of government that will backfire when Democrats take power. I don’t like any form of LGBT education in public schools, but the conservative solution is school choice, federalism, and foot voting, not speech restrictions.

I don’t like the climate-change alarmism on the left. I think environmentalism should be more about immediately harmful pollutants, and less about greenhouse gases. I like some of the left’s infrastructure ideas, like trains, public transport in general, and a nationwide charger network, but that’s no reason to vote Democrat when the Democratic activist class is going to prevent that infrastructure from getting built anyway.

I am against most forms of gun control, but I think Republicans are being evasive at best when they deny that more guns = more deaths, even if it is not a linear relationship.

Republican election messaging is horrific, but I do think you ought to be required to present yourself in person and show proof of eligibility to vote. Immigration is not bad, but I think we should recognize that they are coming for America as it is, not the country it will be if we don’t assimilate immigrants properly. We cannot assimilate 2 million people a year. The U.S. is a superpower and should act like it. We are the greatest country in the world, and we should make people wait for us to take them in. That said, it is ridiculous that TSMC (a semiconductor-manufacturing company) was having issues bringing staff over. Skilled professionals willing to become citizens should be given an easy process, especially when they work in a field vital to national security.

As you can see, I basically agree with much of the Republican policy platform even if I’m not on board with their messaging, or occasionally I agree with their basic positions even when I disagree with their policies. I see general-election voting as a means to choose between two basic sets of policies. As I currently see it, the Republicans are the better option on policy, abhorrent as their mascot is. I hope I’ve offered a useful perspective.

Provocation of the Week

In Tablet, four faculty members at Princeton University have co-written an article, “Academic Administrators Are Strangling Our Universities,” that indicts recent trends in academia:

A new cohort of administrators zealous to reshape life on campus and off has fastened itself on institutions of higher learning—promoting their own welfare and power as a class through bureaucratic fads and mindsets that are far removed from the values of critical thinking and free inquiry. The speed of this hostile takeover is astounding. To take just one prominent example, the number of administrators employed by Yale University has risen three times faster than the undergraduate student body since 2003… The National Center for Education Statistics estimates that “noninstructional activities such as admissions, student activities, libraries, and administrative and executive activities” now make up 67% of the expenses of private for-profit four-year institutions.

What are we getting for this huge commitment of resources …? Today most universities lack core courses in the basics, but they do eagerly issue speech “guidelines”—overseen by the new bureaucracy—to police how faculty conduct classes. Similarly, campus administrators are reshaping students’ lives in their campus residences, mandating student attendance at freshman orientation sessions and panels aimed at forming morals and attitudes on subjects ranging from sexuality to identity to “privilege” …

Much of what looks to outsiders like student-led protests and campaigns is in fact the product of the determination of the new administrative class to shape campus norms… which not coincidentally make the case for the importance of their own jobs. The power of this class, which is parasitic on the mission of the university, is quite considerable: first, they select who gets onto campus … Once students arrive, they are pressured to think in approved ways, with those who dissent in particularly visible or annoying ways being subject to star chamber–like proceedings overseen by the administrators themselves.

That’s all for today––enjoy the beginning of autumn, and I’ll see you next week.


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