A reader writes:
Does it matter if the writers of the Constitution/Amendment define or understood the word "life" in "…right to life…" to mean from the moment of conception? That seems pretty likely to me, though I haven’t done any research. In such a case a Catholic (or merely "good") judge would be required to protect life from the moment of conception. I don’t think we *have* to play by their rules.
Perhaps in a generation we may have judges who will interpret the constitution in that way?
Perhaps, but it’s not a given that originalist judges would read the Constitution in this way.
While it’s true that the Fifth Amendment to the U. S. Constitution provides that no one shall "be
deprived of life, liberty, or property, without due process of
law," it is not a slam dunk that the framers or ratifiers of the amendment would have understood life as beginning at conception.
There was still a lot of overhang from the time when bad embryology thought that children were not alive until "quickening" (lit, "making alive" but interpreted as when the mother first feels the baby kick) or Aristotle’s 40/80 day business.
As a result, when the amendment was passed (1791) abortion was generally legal in the United States.
It wasn’t until the mid-1800s when better embryology revealed that children were definitively alive from conception, and American physicians began lobbying their state legislatures to make abortion illegal. That happened in every state of the union and stayed that way until the late 20th century, when certain legislatures began to loosen the requirements, just before The Evil Decision (1973) swept away all regulations and inaugurated an age of triumphal babykilling.
Since abortion was generally legal at the time of the Fifth Amendment’s passage and remained so–uncontested–for many years thereafter, an originalist justice might well look at it and say, "Well, that shows that the framers/ratifiers did not undrstand this amendment to prohibit abortion. Therefore it doesn’t. On the other hand, neither does the Constitution provide a right to abortion. It’s a matter for the legislatures, as it was at all times before Roe v. Wade, so you need a legislative solution if you want abortion banned."
Which is the most likely scenario for how abortion will be ended in this country: A judicial overturning of Roe on originalist grounds, followed by a long, bloody legislative fight to end abortion state-by-state, hopefully (a long way down the road, after the battle is mostly won) eventually resulting in a constitutional amendment protecting life from conception to patch up what the Fifth Amendment doesn’t do on an originalist reading.
That being said, it’s possible that an originalist with a sufficiently strong natural law orientation might look at the Fifth Amendment and say, "Okay. They didn’t understand it as prohibiting abortion, but that was because of the defective understanding of science they had in their day. They meant to protect the life of every human being under U.S. jurisdiction, and now we have a clearer undrstanding of the fact that the unborn are human beings. Therefore, the Fifth Amendment protects them."
That’s possible, but such five such justices aren’t likely to concurrently sit on the Court any time soon. The former reading is more likely to get Roe overturned in the short term.
After putting up a world map of abortion law last week, some commenters expressed a desire for a map of abortions by percentage (i.e., which countries had the highest abortion rates rather than the most permissive laws).