Is the key to a federal abortion ban in the Constitution? Proponents like Josh Hammer says yes.

abortion sign idaho ap
It’s fewer than 10 words from the clause that safeguarded women’s reproductive rights for nearly half a century.

It’s about 5 p.m. on Sept. 11 in one of several capacious conference rooms situated a short walk from the swimming pool of the JW Marriott Miami Turnberry in Aventura, and Josh Hammer is closing a short speech.

He’s one of four speakers participating in a panel discussion on the constitutional implications of the U.S. Supreme Court’s June decision to reverse decades of federal precedent and kick the power to regulate abortion back to the states. The talk also centers on what can be done now to ban the practice outright.

Hammer, the opinion editor of Newsweek, spends part of his 15-minute address citing the writings of Alexander Hamilton, George Washington, Abraham Lincoln, John Marshall, English common law, the concept of natural law and biblical precepts. His speech is part of just one discussion of many taking place over three days at NatCon 3, a symposium around the “national conservatism” movement founded and hosted by the Edmund Burke Foundation.

Hammer and the preceding speaker on the stage, Amherst College professor Hadley Arkes, the founding director of the James Wilson Institute on Natural Rights and the American Founding, are staunch originalists. They believe each line of the U.S. Constitution should be interpreted same way its authors intended at the time they wrote it.

So are Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, the three Justices former President Donald Trump appointed to the Supreme Court. Along with fellow self-avowed originalist Clarence Thomas and Samuel Alito, they cast the five votes overturning Roe v. Wade and Planned Parenthood v. Casey in June.

“Originalism is here to stay. It’s not going anywhere, so you’d better get used to it,” Hammer says. “Congress can, and it should, legislate a national protection for unborn life, embracing a morally imbued reading of the Fourteenth Amendment.”

Abortion’s prior federal protection was rooted in the Due Process Clause of the Fourteenth Amendment, which affirms the right of personal privacy to all individuals, including a woman’s right to determine whether or not to bear a child.

In his opinion accompanying the June ruling, Alito wrote that the logic linking abortion protections to that of personal privacy was “egregiously wrong” and “exceptionally weak, and the decision has had damaging consequences.”

Now, some conservatives are looking to Fourteenth Amendment again as they seek to federally outlaw abortion. The key, they say, this time lies in its Equal Protections Clause, which requires states to afford every person identical safeguards and forbids them from drawing distinctions between individuals “that are irrelevant to a legitimate government objective,” according to Cornell Law School.

“I wish the Congress and that the federal courts would act under the Fourteenth Amendment, where the protections of the law are being withdrawn from a whole class of human beings in the blue states, just in the way that the courts and the Congress came to understand that … protections of the law were withdrawn from Black people in the South in the ’50s and ’60s,” Arkes says.

The route to that happening may be shorter than expected. Following Dobbs v. Jackson Women’s Health Organization, which reversed longstanding federal abortion protections, the anti-abortion movement has reset its sights on fetal personhood — the concept that the unborn are full-fledge people deserving of the same constitutional protections afforded to those outside the womb.

Lawmakers and courts have a moral obligation to do just that, according to Hammer, who rejects the notion that legal interpretations can ever be “value-neutral.” Inherent to proper jurisprudence, he says, is an overriding prioritization of the common good.

“There is no divorcing value judgement or morality from politics and law — period, full stop, end of story,” he says. “Western history has repeatedly shown that the pursuit of a values-neutral, liberal order results in a one-way cultural ratchet toward ruinous decadence.”

Not all in the national conservatism sphere agree with Arkes, Hammer and others proffering similar arguments. Such is the case with University of California, Berkely law professor John Yoo, who famously authored the controversial “Torture Memos” during the presidency of George W. Bush. He later advised former Vice President Mike Pence against interfering in the certification of the 2020 presidential election.

Yoo agrees with Hammer and Arkes that the Dobbs decision was correct in rejecting “progressive activism” in the judiciary. But it may be a stretch, he says, for the Supreme Court to interpret the Fourteenth Amendment to confirm the personhood of the unborn at all stages of development.

“Can the Supreme Court interpret the Fourteenth Amendment (portion stating that) ‘life, liberty, or property’ cannot be taken without due process — does that word, ‘life,’ mean the Supreme Court can say life begins at conception?” he says. “There, I disagree with my friends. I don’t think that that’s consistent with the original understanding. I do think that that is making the same mistake that our progressive friends make in that they use the courts to advance their moral views at odds with what the democratic process would yield.

“The great temptation in the wake of Dobbs (is) there’s going to be a conservative, almost triumphalist (impression) about what we can achieve through the courts. To me, Dobbs is very much a touch-and-go thing, (and) Justice Kavanaugh and Justice Alito, in their opinions, made it pretty clear that returning the question to the state for decision is as far as they were willing to go.”

Jesse Scheckner

Jesse Scheckner has covered South Florida with a focus on Miami-Dade County since 2012. His work has been recognized by the Hearst Foundation, Society of Professional Journalists, Florida Society of News Editors, Florida MMA Awards and Miami New Times. Email him at [email protected] and follow him on Twitter @JesseScheckner.


  • Ron Ogden

    September 13, 2022 at 9:05 am

    I do not know what defines a person so I am not going to try to define personhood, and that necessitates that I do not try to define UNpersonhood. That is what the slavers and the Nazis and the other tyrants tried to do. Since I do not know what an Unperson is, I am going to assume that all of us, including those of us who are helpless, dependent and in formation, are persons and thus have rights protected by law. It is not a woman’s right to define an UNperson. That is murder, plain and simple, and it always has been–63 million times in his savage and brutal country.

  • PeterH

    September 13, 2022 at 11:37 am

    …..and in opposition to this conservative “interpretation” of what the “originalist” thought was the statement of visionary Thomas Jefferson whose opinion concluded that the Constitution should be “interpreted” as a flexible “living and breathing” blueprint for the future of our ever changing country.

    Even Burr and Hamilton realized the mess they created was imperfect and quickly wrote the Federalist papers to make corrections to the original document.

    • Ron Ogden

      September 13, 2022 at 2:36 pm

      So, if you want to term a “mess” the document that the founders wrote and passed and to which they appended a Bill of Rights and to which their successors have attached sometimes spurious amendments ever since, what is the Project’s view of a Constitutional Convention to fix it?

Comments are closed.


Florida Politics is a statewide, new media platform covering campaigns, elections, government, policy, and lobbying in Florida. This platform and all of its content are owned by Extensive Enterprises Media.

Publisher: Peter Schorsch @PeterSchorschFL

Contributors & reporters: Phil Ammann, Drew Dixon, Roseanne Dunkelberger, A.G. Gancarski, Anne Geggis, Ryan Nicol, Jacob Ogles, Cole Pepper, Gray Rohrer, Jesse Scheckner, Christine Sexton, Drew Wilson, and Mike Wright.

Email: [email protected]
Twitter: @PeterSchorschFL
Phone: (727) 642-3162
Address: 204 37th Avenue North #182
St. Petersburg, Florida 33704

Sign up for Sunburn