Josh Hammer defends a recent essay by John Finnis entitled "Abortion Is Unconstitutional," arguing for a common good-originalist reading of the 14th Amendment.

Some excerpts:

"According to Finnis, unborn children are properly understood as 'persons' under the 14th Amendment’s Equal Protection Clause, and state-level homicide laws therefore cannot discriminate by protecting born people but not unborn people. The upshot under this logic is that overturning Roe and its 1992 successor, Planned Parenthood v. Casey, would not merely return abortion regulation to the ambits of the various states, as earlier conservative legal titans such as the late Justice Antonin Scalia long argued; rather, it would mandate banning the bloody practice nationwide."

"A careful consideration of the relevant legal discourse and litigation at the time indicates 'person' in the Equal Protection Clause text does indeed mean what Finnis and George claim it meant to those who ratified the provision in 1868. And Finnis’ argument is adamantly supported if one sheds the strictures of an overly historicist and positivist jurisprudence and embraces what I call 'common good originalism,' which argues that where, as here, there are multiple plausible interpretations of a certain constitutional provision, one should err on the side of the American constitutional order’s overarching substantive orientation toward natural justice, human flourishing and the common good."

"The relevant legal and moral question in the antebellum slavery debate, Abraham Lincoln famously argued in his 1854 Peoria speech, is 'whether a negro is not or is a man.' So, too, is the relevant question in the abortion debate whether the unborn child is not or is a person. Modern science actually answers that question quite definitively: John Finnis is right."

Read the full piece here.