On Friday, Georgia passed a “heartbeat bill” that bans abortion after medical professionals can detect a fetal heartbeat. This would effectively make abortions impossible to obtain after six weeks. The federal courts will surely weigh in on this test legislation, legislation that is rather plainly designed to see how the Court’s new conservative majority will treat Roe, Casey, and Whole Women’s Health now that Justice Kennedy has retired.
What’s interesting developmentally about the legislation is the text and justification of the heartbeat bill. The fetal heartbeat bill justifies itself by quoting the famous line from the Declaration of Independence that “all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness . . .” The bill then ties the Declaration to the 14th Amendment’s due process clause forbidding states from “depriv[ing] any person of life, liberty, or property.” In other words, the GOP legislators in Georgia are grounding the constitutionality of the bill in a natural law reading of the Constitution that Ken Kersch and Mary Ziegler (and others) have called “Declarationism.” (As Kersch has explained, “Declarationism is the view that the Constitution can only be understood and interpreted in light of the principles enunciated in the opening words of the Declaration of Independence.”)
Originalists, who are legal positivists, reject this approach. Adherents of originalism—the officially sanctioned “constitutional political program” of the movement conservative captured Republican Party—deny the centrality of the Declaration to constitutional interpretation. For example, under questioning by the Federalist Society-aligned Senator Ben Sasse (R-NE) at his confirmation hearings, Neil Gorsuch stated: “The Declaration is not the law. It is a Declaration of Independence. The Constitution is the foundational document and the foundational law of the country . . . .” And originalists scholars have long policed the boundaries of the originalist project by denying that the Declaration is part of constitutional law qua law. Indeed, in the early and mid-1990s, a fierce debate in the pages of National Review pitted Harry Jaffa—a West Coast Straussian and Declarationism’s most prominent champion—against Robert Bork, who championed originalism. (Not surprisingly, given its participants, the debate ultimately devolved into mutual recriminations and accusations of ad hominin attacks).
So why is the Christian Right, the most stalwart group in the GOP coalition and loud proponents of originalism, bucking the party line (literally) in framing the heartbeat bill as sounding in the ostensibly heterodox Declaration of Independence and natural law?
In no small part, this is because the Christian Right has never really given up their goal of banning abortion based on a constitutional argument for fetal life. But, the Christian Right, in their zeal to overturn Roe (really Casey), may be creating a potential doctrinal problem for the larger conservative legal movement. This may—perhaps should—anger the senior partner in the coalition—the economic conservatives-cum-libertarians—who do not believe the Court will overturn Roe.Josh Blackman, an activist-intellectual par excellence, told the New York Times after Kennedy retired: “The court’s not going to overturn Roe. They’re just not.”
While Blackman is likely correct that Roberts will not cast the fifth vote to overturn Roe/Casey, it is interesting that economic conservatives have not done more to police this argumentation boundary. It is more than plausible that Thomas and perhaps Gorsuch could write dissents (or concurrences) in a challenge to fetal heartbeat bill bringing natural law constitutional argumentation into the “mainstream” and out of the evangelical shadows. (Thomas has done a bit of this in the affirmative action context already). But, over the long duree, it is not difficult to imagine clever liberal lawyers constructing arguments sounding in natural law that, first, constitutionalize pre-natal welfare state claims and then early childhood rights to healthcare while simultaneously reading into the Constitution’s a woman’s “natural right” to her life and liberty vis-à-vis abortion. This may seem “off the wall” to contemporary ears where Roberts is median justice, but as Kersch has shown, over the course of early 20th Century the Progressives wholly repurposed the 4th and 5th to undergird their political project. So while the Federalist Society and originalists are discussing reviving substantive due process—long the bete noire of conservatism and a corollary of natural law—they may be unwittingly allowing evangelicals (who “created” living constitutionalism, after all) to set the table for a constitutional politics far afield from their political priors. And in that case, as Amanda Hollis-Brusky has noted, the current conservative legal movement may look to posterity much like Icarus.