In the same NYT column I discussed in my last post, Ross Douthat talks about the possibility of the Supreme Court reinterpreting the 14th Amendment to find a fetal right of personhood. For the anti-abortion crowd, this would be the judicial equivalent of a walk-off grand slam; it would immediately ban abortion in all fifty states without federal legislation or a constitutional amendment, and would require pro-choice supporters to amend the Constitution to have any rights at all.
Is this possible? If so, under what circumstances?
There is absolutely zero support for the personhood approach in the text of the Constitution, in the legislative history, or in judicial precedent since its adoption. No originalist or textualist could possibly accept it. It would require a majority of the justices to throw over standard methods of constitutional interpretation in favor of something very like “common good constitutionalism,” which is based on medieval Catholicism. It would be, in effect, a judicial revolution.
Which tells you how it could happen. It is impossible in our current liberal democratic regime. That will change if America, by hook or by crook, chooses the Orban Option. At that point, the entire reactionary agenda, including media censorship, university purges, and religious tests for voting and office holding, would be on the table.