Is Criminal Abolition Unconstitutional? (Guest post by Guha Krishnamurthi)
Is Criminal Abolition Unconstitutional?
On the campaign trail, former President Donald J. Trump and his running mate Senator J.D. Vance have insisted that Dobbs should be understood as a decision grounded in federalism—merely designed to return the abortion issue to the states and their voters. But one needn’t search too far to see that Trump and Vance have nationwide abortion bans in their sights. The Trump-sponsored Project 2025 makes this explicit. Indeed, so did Vance’s own policy page, now deleted (but the internet never forgets).
The first, most obvious pathway for a nationwide ban is federal legislation. Gonzales v. Carhart indicates that such legislation banning abortion procedures would be determined constitutional. Indeed, there is good reason to think that the Republicans would be willing to dispense with the filibuster in pursuing such legislation, just as the Democratic Party expressed willingness to bypass the filibuster to pass federal legislation protecting abortion nationwide. Another related pathway is to use the Comstock Act, which bans relevantly the mailing of articles used to cause an abortion, to in particular prevent people from procuring medicines for certain abortion procedures. The Biden Administration has taken the position that enforcing the Comstock Act requires evidence of the intent of the mailer of such materials, and the general lack of such evidence forecloses its enforcement. But futures administrations may not take that position, even though there is also substantial evidence that Comstock has never been understood to be a nationwide abortion ban.
The final pathway is an ambitious—perhaps, far-fetched—argument that fetuses should be declared “person[s]” under the Fifth and Fourteenth Amendments, which would then extend to such fetuses various constitutional protections. After reviewing the scholarship on “fetal personhood,” I must lament that the constitutional argument lacks detail. But on most constructions, it seems like the argument would be a drastic departure from our constitutional discourse. The argument seems to have taken foot in a passage of Roe: “If this suggestion of [fetal] personhood is established, the appellant's case [for a right to an abortion], of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment.”
So one way of understanding the fetal personhood argument is that it is grounded in the Fourteenth Amendment’s Due Process Clause (“nor shall any state deprive any person of life, liberty, or property, without due process of law”). Thus, the argument goes, because fetuses are persons, they cannot be deprived of life without due process.
But still, we can ask, how that gets put into operation. How does this argument effectuate a national abortion ban? To be clear, the fetal personhood argument doesn’t just demand that the government not support abortion; it demands that the government prevent other people from getting abortions. Thus, it would seem that it would require states to promulgate abortion bans and to require their enforcement. This kind of command from the High Court—to pass and enforce criminal laws—is certainly rare. Indeed, it goes further than the extraordinary (but required) relief in Brown v. Board of Education—that required states to take action to integrate the schools.
I still don’t understand how exactly this is supposed to work. Legislating is hard, even when there is bipartisan agreement. What if legislatures refuse? And what if prosecutors exercise their constitutionally recognized discretion and refuse to prosecute such cases? Yet putting those doubts aside, I want to explore the surprising reach of the argument, into the core of the criminal law.
Consider the criminal abolition movement. It is spectral in nature—some advocates demand serious and substantial reform but wish to preserve the criminal legal system; others demand literal abolition. The latter position would mean that there should be no criminal laws that are enforced. Abolitionists argue that the criminal legal system is so barbaric and deleterious that its complete absence would be a better state of affairs. Naturally, there are reasons for doubt—crimes inflict great harms, and without any threat of sanction, would they not proliferate? So literal abolitionists have a tough row to hoe to realize their vision. But add to those prudential problems a constitutional hurdle.
If we take the fetal personhood argument seriously, that means there must be some criminal legal system—at the least, there must be a criminal prohibition against murder (of fetuses) that is actively enforced. Whatever you think about the status of fetuses, people—that is, born humans—are “person[s].” And so if the fetal personhood argument requires that all persons be protected by inter alia legislation prohibiting their murder and enforcement of such legislation, literal abolition—that calls for the elimination of the criminal legal system—cannot be constitutional.
To be clear, this isn’t supposed to show that literal abolition is wrongful—the Constitution is a flawed document, and this may be one of its flaws. Furthermore, this isn’t supposed to show some partisan contradiction. It may be that those who favor fetal personhood also disfavor criminal abolition—and vice versa. Finally, it isn’t even supposed to necessarily show that there is an extra hurdle to criminal abolition. For literal abolition to win the day, given how substantial a change it is to our polity, there must be broad consensus to do so. And if that’s right, then there will likely be sufficient consensus to make constitutional change. (It does mean however that states will not be able to experiment with literal abolition themselves, without crossing the constitutional hurdle first.)
Nevertheless, it is a surprising implication of the fetal personhood argument. This argument about the status of abortion has tentacles that reach into the nature of our criminal system more generally.
There is another possible construction of the fetal personhood argument, as grounded in Equal Protection rather than Due Process. Conceived thusly, the argument states that because fetuses are persons, they must be protected just like all other persons. Because all other persons are protected by laws criminalizing murder and enforcement of such laws, so too should fetuses. Ergo, states must prohibit abortion. Presumably, if there were no such murder laws being enforced with respect to adult humans, then it would be no violation of equal protection for a state to allow abortions. Thus, this kind of Equal Protection Clause argument would not endanger literal abolition—because all would be treated equally, in that there would be no criminal enforcement for any victims. Indeed, as Professor Dorf observed to me, the Court’s holding in DeShaney v. Winnebago County, which held that the government’s failure to prevent child abuse by a custodial parent does not violate the child's liberty rights under Due Process, may suggest that the Due Process fetal personhood argument is foreclosed, and that Equal Protection is the only available avenue for the argument to proceed.
Importantly, the Equal Protection fetal personhood argument also has surprising implications for our criminal law and constitutional order. In particular, it would seemingly allow individuals and entities (with standing) to force the government to institute criminal proceedings against putative violators, and perhaps to even legislate in ways that prohibit abortion. And for it to be effective, it would need to be able to override government actors who exercise discretion against bringing such actions—like prosecutors who think it is difficult to bring and win such cases and legislators who think it is difficult to write fair-minded statutes. All in the name of ensuring Equal Protection. But then we might ask whether other putative Equal Protection claims could similarly force government action. Could victims wield this argument to force prosecutors to institute charges against likely suspects? Could one force states to pass anti-discrimination laws and hate crime laws? There might be ways to forge a coherent Equal Protection doctrine of this sort, but it will likely be through a gauntlet of tumult.
We have already seen the Roberts Court engage in a sea-change to our constitutional order, in the form of the Bruenization of rights—which displaces means-end reasoning in favor of a search for historical analogues present at the time of the Founding and Reconstruction. That change has had mixed results, to say the least. On my reading, Rahimi is a polite mea culpa for how much confusion Bruen has sown. Fetal personhood is in a different ballgame. Our Constitution would be unrecognizable.