medical judgment may be exercised in the light of all factors-physical, emotional, psychological, familial, and the woman's age-relevant to the well-being of the patient. All these factors may relate to health."10

Putting health in terms of "well-being", the Court created a basis for an abortion such that no physician could ever be prevented by law from performing an abortion that he believed was for the well-being of the woman who requested it. In a concurring opinion Chief Justice Burger said "plainly the Court today rejects any claim that the Constitution requires abortion on demand." But if no barrier can be constitutionally set by law to the doctor's discretion to operate, abortion on demand exists as long as there are doctors willing to answer a request for an abortion.

99 11

12

The Court did decide that somewhere in the Constitution-"we feel", the Court said, that the location is in the 14th amendment's requirement that liberty be restricted only by due process there was a right of privacy. The right was not express. The Court discovered it. The right was broad enough to give every woman a right to abortion. On this inference from an inference, or implication from an implication, the Court bottomed its reasoning.

The right to privacy, Chief Justice Burger said elsewhere, has "tenuous moorings in the Constitution." 13 Anchored to this tenuously moored right, the right to an abortion was ranked by the Court with those personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty.” “ A right directly contrary to what had been the law of the land the Court now proclaimed to be basic and necessary to "ordered liberty."

14

This new constitutional liberty, the Court found, was subject to the State's interest in protecting the mother's health. The State might-the Court appeared to say-constitutionally require that all abortions be recommended by physicians. The State might-the Court clearly said-after the first trimester require that abortion be performed in facilities licensed by the state. With these thin qualifications, the woman's right to an abortion was absolute-expressly so, in the Court's holdings, before the child's viability, inferentially so by the Court's definition of health as well-being and the subjection of the child to the mother's well-being in the last two months. In effect, if not in express terms, Roe v. Doc made abortion on demand the law of the land.10

Nothing in precedent, nothing in our traditions, nothing in history justified the majority's interpretation of the term liberty. As constitutional law, its action deserves the severe reproach Justice Benjamin R. Curtis made to his brethren who decided Dred Scott v. Sanford: "Political reasons have not the requisite certainty to afford rules of judicial interpretation. They are different in different men. They are different in the same men at different times. *** We are under the government of individual men, who for the time being have power to deduce what the Constitution is, according to their own views of what it ought to mean."" The same rebuke, in different language, was conveyed in Justice Byron White's description of the majority action in Roe v. Doe as an exercise in "raw judicial power." 1

18

By Holmes' standard this radical creation of a new liberty in the Constitution was justified only if a reasonable and fair man would have been compelled to agree that the 50 states had been infringing fundamental principles. Once the Court had spoken the laws of every state on abortion were constitutionally defunct. For the first time in the history of our country, the lives of one large portion of the human species were without the protection of law.

II. THE CONSEQUENCES OF RoC AND Doe

In the less than two years that has elapsed since The Abortion Cases were decided, the courts have spelled out in detatil their implications and underlined their ominous significance for American society. The principal consequences are First. The Subversion of the Structure of the Family.

1. The Supreme Court noted deliberately in Roe that it was not deciding the constitutionality of a statute requiring a father's consent for a legal abortion. The Court set up, however, such an unqualified right in a mother to dispose of her offspring while alive within her body that it was almost inevitable that a father's interest would be treated as negligible. A three-judge federal court in Florida interpreted Roc and Doe to mean that the State had no interest to protect in the young fetus, and that if the State had no interest,

See footnotes at end of article.

the State could not create an interest in the father. A Florida statute requiring the father's consent was held unconstitutional."

In Utah a statue was enacted after Roe and Doe to require that the father consent, that the mother be counselled as to the alternatives to abortion, and that a judicial hearing be promptly held to ascertain that the consent and counselling had been given. A three-judge federal court invalidated the entire law. It was, said Chief Judge Ritter, unconstitutional to subject "exercise of the individual right of privacy of the mother" to "the consent of others" or to "judicial scrutiny."

19 21

In these decisions Roe and Doe are seen to stand for a view of a woman's dominion over her offspring in which the father's role in the child's procreation is ignored and the father's concern for his offspring's welfare is given a zero value. The father is simply classified with "others."

2. The Abortion Cases were applied in Alabama to affect the action of a local school board setting standards for the conduct of public school teachers. An unmarried teacher became pregnant and sought information from a hospital about abortion. Word of her condition came to the board of education of Covington County, which, after a hearing, fired her for immoral behavior. A three-judge federal court held the Alabama statute permitting the discharge of teachers for immorality to be unconstitutional as applied to this teacher. The court held that the right of privacy created by Roe and Doe had been infringed.22

Teaching is as much by conduct as by words. A school system which employs pregnant unmarried women teaches a view of marriage more eloquently than a hundred textbooks on social ethics. Yet the Supreme Court itself in Roe and Doe had made a point of treating the married and the unmarried plaintiffs exactly alike. The federal court in Alabama only went a slight step further in treating the unmarried woman's right to an abortion as superior to any interest of the State in teaching that the procreation of children should occur only in marriage.

The family has been under assault by extreme groups in our society and under question by others. It remains, in Justice Roger Traynor's words, "the basic unit of our society"; and, as he put it, "since the family is the core of our society, the law seeks to foster and preserve marriage." Ultra-feminist interpretations of the Constitution by the courts strikes at the institution. By Holmes' standard is constitutional decisionmaking of this kind justifiable? Would a rational and fair man necessarily admit that the Alabama, Florida, and Utah statutes infringed fundamental principles as they have been understood by our people and our law? Rather, have not our people and our law always treated marriage as the meeting of two persons, equal in their love and concern for their children, united in a status privileged and fostered by law? If the Constitution did not enact Mr. Herbert Spencer's Social Statics, neither did it enact Ms. Germaine Greer's The Female Eunuch. Second. The Mandated Public Funding of Abortion.

24

Roe and Doe as interpreted by the federal courts not only treat the procreation of children atomistically as if it were the individual activity of women, married and unmarried. They require that public funds be spent on abortion if public funds are spent on health. They make it highly unlikely, for example, that a national health bill can be enacted which constitutionally excludes abortion from the services to be federally financed.

The cases are these: Nyberg v. City of Virginia, Doe v. Wohlgemuth and Aiello V. Hassen.

1. Nyberg, decided by the federal district court in Minnesota, held that a municipal hospital must provide abortion services and invalidated the hospital's restriction of abortion to that necessary to save a mother's life. Judge Neville said, "It seems to this court that Roe v. Wade leaves no room for exception or for equivocation. Its mandate is clear and explicit." Applying it, he required "the hospital administrators to take positive steps within a period of 30 days from date hereof to provide abortion services and facilities to licensed physicians. ***" 25

2. Wohlgemuth held unconstitutional a portion of Pennsylvania's medical assistance program under the Social Security Act. The program compensated for abortions performed when continuation of pregnancy threatened the health or life of the mother, but did not pay for elective abortions. Speaking

See footnotes at end of article.

for a three-judge federal court, Judge Snyder held that the program "deprived the women who choose abortions of the equal protection rights guaranteed by the 14th amendment." The state, he said, could not "justify on the basis of financial integrity" a regulation excluding a woman who exercised her constitutional right not to bear a child."

3. Aiello held unconstitutional a California statute exempting pregnancyrelated work loss from coverage under the state disability program. Without distinguishing between disability due to normal childbirth and disability due to an abortion, a three-judge federal court held that the state must pay for all pregnancy-related disabilities. No rational distinction, the court held, could be drawn between disability due to an abortion and disability due to delivery of a child." On appeal the Supreme Court held that the state need not compensate for work loss due to normal childbirth." The state of California failed to appeal the ruling that it must pay for abortions.

The general principle of these cases was put in a case from the First Circuit where, after Roe and Doe were decided, the federal court ruled that the City of Worcester must provide sterilization services in its municipal hospital. The State, Judge Coffin wrote, could not "constitutionally draw the line at medically indistinguishable surgical procedures that impinge on fundamental rights." The city hospital was bound by statute to care for persons "requiring relief during temporary sickness." The hospital performed surgery on "benign tumors which caused subsequent neurological problems." The "appellant's capacity for childbearing", the court ruled, should be treated similarly as a form of sickness.30

29

As long as these interpretations of Roe and Doe are the law, the states and the Congress will not, it seems, be able to create health programs which, in providing surgical assistance, draw the line at elective abortion. Again, by Holmes' standard, is this good constitutional law? Must a reasonable and fair man agree that fundamental principles as understood by our people and by our law have been infringed when the majority of people of a state act through their legislatures to deny government support to abortion? Roe and Doe, as interpreted, have read the 14th amendment to create a right to the public financing of abortion.

Third. The Unmaking of Human Beings.

The worst of the consequences of Roe and Doe is the acceptance of the principle that the law can say who is not a human being. All of our constitutional liberties are nothing if we can be defined out of the human species. In Dred Scott v. Sanford the Supreme Court declared that the descendant of Africans could never be a citizen of the United States," but even that most dreadful of decisions did not carry so far as Roe and Doe. These decisions, as now interpreted by the courts, arrogate to the courts the power to decide who is human.

1132

Hear, for example, Chief Judge Pettine in Providence, ruling on a Rhode Island statute, enacted after Roe and Doe, which expressly declared that in Rhode Island a person "commences to exist at the instant of conception." The State produced witnesses with credentials the judge acknowledged to be impressive to testify that the embryo was a member of the human species. "I neither summarize nor make any findings of fact as to their testimony. To me the United States Supreme Court made it unmistakably clear that the question of when life begins needed no resolution by the judiciary as it was not a question of fact. . . I find it irrelevant to all the issues presented for adjudications." "33 Once the Supreme Court had ruled that a fetus was not a person, it was, Judge Petine held, "frivolous" for a state to try to show the contrary. The Rhode Island statute was invalidated. The First Circuit affirmed. The Supreme Court refused to review the ruling that Rhode Island had acted so frivolously that a single federal judge could annul its legislation.

35

34

Lawyers are used to dealing with presumptions with creations of law, with fictions. At first appearance the denial of humanity to the fetus may appear as just another fiction, not more shocking than many other fictions necessary for the working of law. For the purposes of the Fourteenth Amendment, the fetus is not human; for the purpose of the Social Security Act, the fetus is human distinctions of this kind are common in the law. What is shocking, repelling, fatal in this distinction, in this fiction is that the courts here assume the power to exclude a species of humanity in determining fundamental proSee footnotes at end of article.

38

See footnotes at end of article.

57-782 O 76 - 15

tection under the Constitution and to exclude that species beyond the power of any legislature to restore.

If, by constitutional fiction, persons only exist at birth, by another constitutional fiction persons may cease to exist at eighty. The Supreme Court itself hints at such a standard in Roe by referring to a fetus' lack of "meaningful life." If what seven judges view as meaningful life is the test of personhood for the Constitution, if facts are irrelevant in determining who is entitled to constitutional protection, the judiciary has absolute power to contract the protection of the Constitution to the healthy or the mentally alert. By Holmes' standard, what kind of constitution-making is this? By any acceptable standard, what kind of constitution-making is this? Must a reasonable and fair man agree that, when seven members of the Supreme Court decide that the offspring of human persons is not a human person, fundamental principles as understood by our people and our law are infringed if a State calls attention to the facts and says, "You are mistaken. The child is human."

III. WHAT MUST BE DONE

Proposed regulations of the Department of Health, Education, and Welfare on sex discrimination in federally assisted programs of education now read: "For the purpose of this subpart, ‘pregnancy' means the entire process of pregnancy, childbirth, and recovery therefrom, and includes false pregnancy, miscarriage, and abortion." 38

39

"War is Peace. Freedom is Slavery. Ignorance is Strength", and of government departments the Ministry of Love is "the really frightening one." I quote of course from Nineteen Eighty-Four by George Orwell. Even Orwell did not imagine a world in which the Ministry of Health defines pregnancy to include abortion. Nor did he imagine a society in which childbearing capacity is analogized to a tumor causing neurological problems, in which a father has no interest in the life of the child he has begotten, in which the State need not pay for childbirth but must pay for abortion, and in which biological facts are irrelevant to the definition of human life. Yet to that society we have come through our courts in the second year after Roe and Doe.

Courts are not omnipotent. They do not act alone. They interact with other factors in the social stream. But they can give a powerful impetus to particular factors. Their decisions, especially those of the Supreme Court, select and sanctify certain principles and thereby educate our people. These decisions have selected and sanctified principles of death.

40

What is necessary is law setting the country in the direction of distinguishing between death and life. No less a law than an Amendment to the Constitution can effect this change. The states are helpless. Minnesota has seen its municipal hospitals compelled to provide abortion." California, New York and Pennsylvania have seen themselves compelled to fund abortions." Alabama has seen its moral standard for school teachers set aside.42 Arizona, Connecticut, Florida, Georgia, Iowa, Kentucky, Maryland, Michigan, Montana, Rhode Island, South Carolina, Texas, Utah and Wyoming have seen their statutes on abortion formally declared unconstitutional. It has made no difference to the courts that large popular votes before Roe and Doe rejected change in the statutes, as in Michigan in November 1972." It has made no difference that the legislatures attempted to act within the openings they thought Roe and Doe had left as did Rhode Island and Utah. The judges have not doubted that they knew better what liberty in the Fourteenth Amendment requires. All the attempts of the people have been struck down. Only an Amendment can now change the law.

43

45

At issue is the balance of power between the federal judiciary and the states. At issue is the structure of the family as the legally recognized union of female and male endowed with equal rights. At issue is the role of government in sponsoring the taking of life through government medical services and health care programs. Above all, at issue is the law's ability to defend the life of every member of the human species.

An Amendment cannot speak on these issues with the precision of a criminal code, dotting every i, resolving every contingency. An Amendment can speak on the grand lines of the First, Fifth, or Fourteenth Amendments,

See footnotes at end of article.

educating the country. In the bicentennial of our birth, an Amendment can set out the values on which our polity depends, it can correct the perversion of liberty, in Roe and Doe, it can restrain the State from taking life, it can recognize that the most precious liberty is the liberty to live and restore the possibility of protecting by law a uniquely vulnerable portion of the human species.

1157 U.S. 429 (1895). 219 How. 393 (1856).

3 Lochner v. New York, 198 U.S. 45 (1905).

Ibid. at 75 (dissent).

5 See John T. Noonan, Jr., ed., The Morality of Abortion: Legal and Historical Perspectives (1970) 223-225.

• Ibid. 225, 248-250.

7 Roe v. Wade, 410 U.S. 113 (1973) at 160.

8 Ibid. at 162.

Ibid. at 165.

10 Doe v. Bolton, 410 U.S. 179 (1973) at 1972.

11 Ibid. at 208 (concurrence)

12 Roe v. Wade, 410 U.S. 113 at 153.

13 Eisenstadt v. Baird, 405 U.S. 438 at 472 (dissent) (1972).

14 Roe v. Wade, 410 U.S. 113 at 152, quoting Palko v. Connecticut, 302 U.S. 319. 325 (1937).

"

15 Roe v. Wade, 410 U.S. 113 at 163. At 163 the Court says that the State's "compelling interest" in the mother s health begins only at the end of "the first trimester.' At 164 the Court says the abortion decision in the first trimester "must be left to the medical judgment of the pregnant woman's attending physician."

16 For a further analysis, see Noonan, "Raw Judicial Power". National Review March 3, 1973 [attached hereto as Appendix A].

17 Dred Scott v. Sanford, 19 How. 393 at 620 ̊ (dissent).

18 Doe v. Bolton, 410 U.S. 179 at 222 (dissent).

19 Roe v. Wade, 410 U.S. 113 at 165.

20 Coe v. Gerstein, Reporter on Human Reproduction and the Law I-C-2 (S.D. Fla., August 13, 1973), appeal dismissed for want of jurisdiction, 42 U.S. Law Week 366 (1974).

21 Doe v. Rampton, 366 F. Supp. 189 (D. Utah, September 7, 1973).

22 Drake v. Covington County Board of Education, 371 F. Supp. 974 (N.D. Ala. January 23, 1974).

23 DeBurgh v. DeBurgh, 39 Cal.2d 858 at 863, 250 P.2d 598 at 601 (1952).

24 For a discussion of Roe and Doe in the context of recent Supreme Court decisions touching marriage and the family, see Noonan, "The Family and the Supreme Court", 23 Cath. Univ. L. Rev. 255 (1974) [attached hereto as Appendix B].

25 Nyberg v. City of Virginia, 361 F. Supp. 932 at 938 (D. Minn. 1973).

28 Doe v. Wohlgemuth, Reporter on Human Reproduction and the Law I-C-49 (W. D. Penn., May 3, 1974) (Judge Weis dissenting).

27 Aiello v. Hassen, Reporter on Human Reproduction and the Law I-C-50 (D. No. Cal., March 31, 1973) (Judge Williams dissenting)

28 Gedulgig v. Aiello, 94 S. Ct. 2485 (June 17, 1974).

29 Hathaway v. Worcester City Hospital, 475 F.2d 701 at 706 (1st Cir., March 22, 1973).

30 Ibid. at 705.

31 Dred Scott v. Sanford, 19 How. 393 at 403, 427 (1858).

32 Rhode Island Criminal Abortion Statute 73-S287, Substitute A, Rhode Island General Laws, sec. 11-3-1, set out in Doe v. Israel, 358 F. Supp. 193 (D.R.I., May 16, 1973).

33 Doe v. Israel, 358 F. Supp. 1193 at 1197.

34 Ibid. at 1199.

35 42 U.S. Law Week 3632 (May 13, 1974).

36 E.g. Doe v. Lukhard, 493 F.2d 54 (4th Cir. 1974).

37 Roe v. Wade, 410 U.S. 113 at 163 (1973).

38 Department of Health, Education, and Welfare, "Education Programs and Activities Receiving or Benefitting from Federal Financial Assistance", 86.47 (c), Federal Register, June 20, 1974, p. 22237.

39 George Orwell, Nineteen Eighty-Four (1949) 17-18.

40 Nyberg v. City of Virginia, supra n. 25.

41 Klein v. Nassau County Medical Center, 347 F. Supp. 496 (E.D. N.Y. 1973); Wohlgemuth v. Doe, supra n. 26.

42 Drake v. Covington County Board of Education, supra, n. 22.

:

43 Arizona: Nelson v. Planned Parenthood Center of Tucson, Inc., 19 Ariz. App. 142, 505 P.2d 580, 590 (1973); Connecticut: Abele v. Markle, 369 F. Supp. 807 (D. Conn. 1973); Florida: Coe v. Gerstein, Reporter on Human Reproduction and the Law I-C-2 (S.D. Fla. 1973); Georgia: Doe v. Bolton, 410 U.S. 179 (1973); Iowa: Doe v. Turner, 361 F. Supp. 1288 (S.D. Iowa 1973). Kentucky: Sasaki v. Commonwealth, 497 S.W.2d 713 (1973); Maryland State v. Ingel, 18 Md. App. 514, 308 A.2d 223 (1973): Michigan: People v. Bricker, 389 Mich. 524, 208 N.W.2d 173 (1973); Montana: Doe v. Woodall, Reporter on Human Reproduction and the Law I-C-30 (D. Mont. 1973) : Rhode Island: Doe v. Israel, 358 F. Supp. 1193 (D.R.I. 1973), affirmed 482 F.2d 156; cert. denied 42 U.S. Law Week 3632 (1974); South Carolina State v. Lawrence, 198 S.E.2d (1973); Texas: Roe v. Wade, 410 U.S. 113 (1973); Utah: Doe v. Rampton, 366 F. Supp. 189 (1973); Wyoming: Doe v. Burk, Reporter on Human Reproduction and the Law I-C-9 (1973).

Time, November 13, 1972.

45 Supra, n. 21 and 32.