Now, as an apparent anti-abortion victory looms, the two suggest that the movement hit the trail for fresh fields and pastures new. Its aim, they say, should be to make all abortion illegal: The prohibition of abortion, they told the Court in their brief, is “constitutionally obligatory because unborn children are persons within the original public meaning of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.” No state can permit it, they say.

The possibility that the Court will, during the October 2021 term, enact this rule is slim. But the brief is worth noting for a couple of reasons. First is the clear intent to insert into the dialogue the idea that no state can allow legal abortion. In late summer 2021, that may seem radical even to some anti-abortion activists; but, as Samuel Johnson once said, “Reason by degrees submits to absurdity as the eye is in time accommodated to darkness.” Shifting the terms of the discussion is a crucial first step toward winning the debate. Consider that, since Roe was decided in 1973, the needs and rights of pregnant women have been slowly but surely erased from the legal dialogue. The fetus is the star of most “pro-life” propaganda, and the needs of the fetus—its heartbeat, or its capacity for pain, or its constitutional status—are the center of the discussion. With women’s privacy, health, and equality removed from the equation, the only question is what rights an unborn fetus may possess. And the new answer offered by these eminent figures is: fetus, all of them; woman, none.

This brief now asks the Court for one of the most radical doctrinal shifts in American history. We can understand why the two philosophers want such a shift—they believe that any fertilized egg is a full human person, and thus any rule that allows the termination of a pregnancy after conception involves a very serious offense against their morality. To go further, they have at their disposal respectable (if, I think, grievously wrong) philosophical arguments why the law should adopt that philosophical position as a legal rule. But what is appalling about this brief is that, instead of just making those arguments as friends of the Court (“We are two eminent philosophers, and we want to point out to you that philosophically your current jurisprudence is flawed”), they present this not as their own idea—heaven forfend!—but as “the original public meaning” of the Fourteenth Amendment. By amassing a distinctly odd survey of the historical record, they solemnly assure the justices that any “legally educated” member of the public in 1868 would have understood the reference to “person” in the due process and equal protection clauses as meaning the unborn at any stage. That means that the “original public meaning” of the Fourteenth Amendment was that abortion could never be allowed.