Appendix A

RAW JUDCIAL POWER

(By John T. Noonan, Jr.)

On January 22, 1973, the Supreme Court of the United States deciding Roe v. Wade and Doe v. Bolton announced that a new personal liberty existed in the Constitution-the liberty of a woman to procure the termination of her pregnancy at any time in its course. The Court was not sure where the Constitution had mentioned this right, although the Court was clear that the Constitution had not mentioned it explicitly. "We feel," said Justice Blackmum for the majority, "that the right is located in the Fourteenth Amendment's concept of personal liberty," but he thought that it also could be placed "in the Ninth Amendment's reservation of rights to the people" (Wade, pp. 37-38). Vague as to the exact constitutional provision, the Court was sure of its power to proclaim an exact constitutional mandate. It propounded a doctrine on human life which had, until then, escaped the notice of the Congress of the United States and the legislators of all fifty states. It set out criteria it said were required by the Constitution which made invalid the regulation of abortion in every state in the Union, the District of Columbia, the Commonwealth of Puerto Rico, and the City of New York. No one of these bodies had read the Constitution right.

Wherever the liberty came from in the Constitution and however recent its discovery was, it was of a very high rank. It deserved to be classified as "fundamental" and as "implicit in the concept of ordered liberty" (Wade, p. 37). With these characterizations, the right took its place with such foundations of civilized society as the requirement of fair, public trials. Justice Blackmum seemed to sense no incongruity in giving so basic a position to a demand which had, until his opinion, been consistently and unanimously rejected by the people of the United States. He did not pause to wonder how the nation had survived before January 22, 1973 in steadfastly repudiating a right implied in the concept of ordered liberty.

Some of the legislation affected was old, going back to the mid-nineteenth century, some was recent, reflecting the wisdom of the American Law Institute or containing explicit statements of intent to protect the fetus. Some of the legislation had been confirmed by recent popular referenda, as in Michigan and North Dakota; some of the legislation was in the process of repeal, as in New York. Old or new, compromise or complete protection from conception, passed by nineteenth-century males or confirmed by popular vote of both sexes, maintained by apathy or reaffirmed in vigorous democratic battle, none of the existing legislation on abortion conformed to the Court's criteria. By this basic fact alone, Roe v. Wade and Doe v. Bolton may stand as the most radical decisions ever issued by the Supreme Court.

That these opinions come from a Court substantially dominated by appointees of a President dedicated to strict construction of the Constitution, that they should be drafted by a Justice whose antecedents are Republican, are ironies which do not abate the revolutionary character of what the Court has done in the exercise of what Justice White, in dissent, calls "raw judicial power.” In rhetoric, the style is that of a judicial body. In substance, the opinions Icould have been authored by Paul Ehrlich or Bella Abzug.

Radicalism marks not only the Court's treatment of the states and its preference for the views of an elite to the results of democratic contests. Radicalism is also the mark of the Court's results. In October 1963 Glanville Williams, the spiritual father of abortion-on-demand, put the proposition to the Abortion Law Reform Association that abortion be made a matter between woman and physician up to the end of the third month. His proposal was voted down by the then most organized advocates of abortion. In less than ten years the Supreme Court has written into the Constitution a far more radical doctrine. By virtue of its opinions, human life has less protection in the United States today than at any time since the inception of the country. By virtue of its opinions, human life has less protection in the United States than in any country of the Western world.

THE COURT'S HOLDINGS

Did the Court really go so far? Here is what it held:

1. Until a human being is "viable" or "capable of meaningful life," a state has no "compelling interest" which justifies it in restricting in any way in

favor of the fetus a woman's fundamental personal liberty of abortion (Wade, p. 48). For six months, or "usually" for seven months (the Court's reckoning, p. 45), the fetus is denied the protection of law by virtue of either the Ninth Amendment or the Fourteenth Amendment.

2. After viability has been reached, the human being is not a person "in the whole sense," so that even after viability he or she is not protected by the Fourteenth Amendment's guarantee that life shall not be taken without due process of law (Wade, p. 47). At this point he or she is, however, legally recognizable as "potential life" (Wade, p. 48).

3. A sate may nonetheless not protect a viable human being by preventing an abortion undertaken to preserve the health of the mother (Wade, p. 48). Therefore a fetus of seven, eight, or nine months is subordinated by the Constitution to the demand for abortion predicated on health.

4. What the health of a mother requires in any particular case is a medical judgment to be "exercised in the light of all factors-physical, emotional, psychological, familial, and the woman's age-relevant to the wellbeing of the patient" (Bolton, pp. 11-12).

5. The state may require that all abortions be done by licensed physicians, that after the first trimester they be performed in licensed "facilities," and that after viability they be regulated so long as "health" abortions are not denied (Wade, p. 49). The state is constitutionally barred, however, from requiring review of the abortion decision by a hospital committee or concurrence in the decision by two physicians other than the attending physician (Bolton, p. 17, p. 19). The Constitution also prohibits a state from requiring that the abortion be in a hospital licensed by the Joint Committee on Accreditation of Hospitals or indeed that it be in a hospital at all (Bolton, pp. 14-15).

With belated misgivings, Chief Justice Burger concludes his breif concurrence in Justice Blackmun's opinion with the sentence: "Plainly, the Court today rejects any claim that the Constitution requires abortion-on-demand." Here is a desperate effort to recapture in a sentence what the Court has given away in its list of criteria mandated by the Constitution. Plainly, there cannot be the slightest argument that for the first six to seven months of fetal exitence, the Court has made abortion-on-demand a constitutional right. Opposed to the mother's "fundamental personal liberty," the embryo or fetus is valued at precisely zero. His or her very existence seems to be doubted by the Court which refers to the state's interest here not as an interest in actual interest in actual lives but as an interest in a "theory of life" (Wade, p. 47). The woman's right is treated as an absolute, abridgeable only for her own sake by the requierments as to licensed physicians and facilities.

Abortion-on-demand after the first six or seven months of fetal existence has been effected by the Court through its denial of personhood to the viable fetus, on the one hand, and through its broad definition of health, on the other. Because the seven-month-old fetus is not a person-cannot be a person as long as it is a fetus-because it now bears the label "potential life," the fetus is not a patient whose interest the physician must consult. In the Court's scheme, the physician has one person as patient, the mother.

When the doctor considers the mother's health, he is to think in terms of the extensive definition of health first popularized by the World Health Organization (WHO). According to the WHO declaration, health is "a state of complete physical, mental, and social well-being, not simply the absence of illness and disease." The Supreme Court now affixes a seal of approval to this definition, substituting "familial" for "social," but essentially equating health with well-being. What physican could now be shown to have performed an aborton, at any time in the pregnancy, which was not intended to be for the well-being of the mother? What person would have difficulty in finding a physician who, in full compliance with the Court's criteria, could advise an abortion if the patient's emotional demand was intense enough? Never before in British or American law has a baby in the last stages of pregnancy been so exposed to destruction at the desire of the parent.

THE COURT'S REASONING

How did this Supreme Court reach this extraordinary result? In part through an inept use of history, in part through a schizophrenic style of judicial interpretation, in part through a conscious response to the needs of technocracy.

Let us look at the history. Justice Blackmun's opinion in Wade contains a copious gob of it. (Wade, pp. 14-36). By and large it is a conscientious if pedestrian review of the relevant literature. But it is a history that is undigested-better said, it is history that has been untasted. It has afforded no nourishment to the mind of the judge who set it out. He has not let it engage his spirit. He has not felt the pressure of loyalty to the persons of the past who have shaped our culture. He has not responded as a person to their perceptions.

Justice Blackmun describes with clarity the reason the American Medical Association led the fight in the nineteenth century for statutory protection of the embryo-"the popular ignorance of the true character of the crime-a belief, even among mothers themselves that the fetus is not alive till after the period of quickening"; the consequent “unwarrantable destruction of human life" before the fifth month. He concludes, "The attitude of the profession may have played a significant role in the enactment of stringent abortion legislation during that period" (Wade, pp. 26-27). But the unimpeachable facts are apparently forgotten when Justice Blackmun discusses the claim that the purpose of American statutory law was not to protect the fetus, but to protect the mother from sepsis or other risks attendant on abdominal surgery in the unsanitary hospitals of the day. The Justice does not ask why the statutes then bar abortion by drug, or why this kind of surgery alone should have been made subject to the criminal law and customarily classed among "Crime against the Person."

If Justice Blackmum can read the history, cite the American Medical Association jeremiads, and trace the development of the law, and yet be uncertain as to the law's intent, it must be that he has failed to grasp, failed to integrate, the purposes which animated our ancestors in laying down a thick wall of protection about the baby in the womb. History for him has not been the evocation of persons in fidelity to their fundamental purposes. It has been a charade which is shuffled off the stage when the display of learning is completed.

What of the schizoid style of judicial interpretation favored by the Justice? On the one hand, he declares the Fourteenth Amendment, enacted in 1868, refers to a personal liberty which had escaped attention for over a century a liberty which, as Justice Rehnquist observes in dissent, would, if noticed, have invalidated the state stattues on abortion in force in 1868. Needless to say, not a single word of history is adduced to show that the framers of the Fourteenth Amendment, the Congress which proposed it and the states which passed it, intended to legitimize abortion. In this branch of his opinion, Justice Blackmun is an evolutionist. Constitutions must be re-interpreted or remade to speak to the times. If liberty means one thing in 1868 and something entirely different in 1973, it is what one must expect of a basic document exposed to a variety of times and conditions. As Justice Blackmun says in an oblique reference to the process which he has followed, his holding is consistent "with the demands of the profound problems of the present day" (Wade, p. 50).

On the other hand, in determining the meaning of "person" in the Fourteenth Amendment's guarantee, the Justice is curiously wooden. He looks at what person meant literally at the time of the adoption of the Constitution. He notes what person must have meant in other clauses of the document. He observes that fetuses are not enumerated in the census. But he does not ask if the new biological data on the fetus compels the Court to be as evolutionary in its definition of person as it is in its definition of liberty. He refrains from looking squarely at the fact of fetal existence. He takes the term person as if its meaning had been frozen forever. Contrary to the radical substance of the rest of his opinion, he is here, uniquely, a strict constructionist. Neither the use of history nor the method of construing the Constitution explains why the Court reached the result it did; and the Court has been se curiously circumspect about revealing its reasoning that a commentator is forced to fall back on hints and to resort to inferences. Four features of the opinions are suggestive:

1. Jutice Blackmun in an excusatory preamble states that he is aware of "the sensitive emotional nature of the abortion controversy" and concludes with an admonition from Holmes that judges should not brand a statute unconstitutional merely because it embodies opinions which to them are "novel and even shocking" (Wade, pp. 1-2). Would it be rash to support that

Justice Blackmun saw the appropriateness of this advice, even as he did not follow it, when he encountered the opinion that a fetus is a person? To one vocal segment of American thought, few things could be so novel or shocking as the suggestion that a fetus has human right. If Justice Blackmun accepted the viewpoint dominant in the media, he could readily have been shocked at the postulates underlying the statutes on abortion.

2. "Population growth, pollution, poverty, and racial overtones" are mentioned by name only on page one of Wade as matters "tending to complicate the problem." They then disappear from view only to be embraced in the vague but comprehensive self-justification of the Court's holding: It is "consistent with" the "demands of the profound problems of the present day" (Wade, p. 50). Studiously ignored is the recommendation of the Rockefeller Commission that abortion be used as a secondary form of population control. Studiously ignored is the comment of black leaders like Jesse Jackson that what is being prepared by the welfare bureaucrats is a program of genocide in the womb. And yet the Court, looking back as it were on its handiwork, says its holding responds to profound problems of the present. What problems fall within the Court's solution but the problems of controlling population growth, the problems of the welfare bureaucracy curtailing welfare rolls? 3. The Court declares that if those trained in medicine, philosophy, and theology are unable to arrive at a consensus as to when life begins, then "the judiciary is not in a position to speculate as to the answer" (Wade, p. 44). Incompetence in the area is avowed.

Three pages later, Justice Blackmum describes the abortion statute of Texas as "adopting one theory of life" and rejects that theory as a ground for regulating abortion. Is this the judiciary "speculating as to the answer" or is it not? How can Texas-and the other states with comparable statutes--be wrong in protecting fetal life against an arbitrary extinction unless the majority of the Court knows better when life begins? The pretense of incompetence seems to be humbug.

Beneath the avowal of incompetence is a commitment to a particular theology or theory of human life. Life is an interest worthy of state protection when it acquires the characteristic of "viability" or "the capability of meaningful life outside the mother's womb." At this point, state protection has "both logical and biological justification" (Wade, p. 48). At this point, in short, life has characteristics that other humans may recognize. At this point, functionally, the Justice says human life begins.

As both a logical and biological matter, however, viability depends entirely on the relation of a human being's capacities to the environment in which he or she is placed. As Andre Hellegers has pointed out. an adult stripped naked and placed on the North Pole suddenly becomes nonviable. Analogously. a fetus ripped from his mother's womb suffers a sudden loss of the capability to survive. In the environment in which he or she has been existing, however, the fetus was as viable as any of us in our houses.

Neither logic nor biology seems to help in explaining why Justice Blackmum chose the point in the continuum he picked for recognition. But he has thrown out another phrase for our guidance-“capability of meaningful life.” Here, it may be, lies the heart of the matter. What it is appropriate for the state to protect is not a human being, but a human being with the "capability of meaningful life." Human life is defined in terms of this capability. Qualitative standards of the life worthy of protection are to prevail, as Joseph Fletcher is reported to have joyously greeted the decision. Our old way of looking on all human existence as sacred is to be replaced by a new ethic more discriminating in choosing who shall live and who shall die. The concept of "meaningful life" is at the core of these decisions.

4. Who shall make the judgment that life has meaning or the capability of meaning? On this key point, it is not, perhaps, unfair to suspect Justice Blackmum of being an elitist, or, if one prefers, a technocrat.

The twin opinions breathe an extraordinary respect for the medical profession. Their explicit presupposition is that a "conscientious physician" using his best professonal judgment-not "degraded" by having his judgment reviewed by colleagues (Bolton, p. 16)-will determine whether the fetus shall live or died. Turning the community's protection of human life over to the judgment of the technician who will perform the operation. Justice Blackmum goes so far as one judge could go to bring about the technocratic utopia so wittily and so unsparingly described in Brave New World.

A large irony of the opinions is this. The Fourteenth Amendment, made necessary by an earlier Supreme Court's attempt to make it legally impossible to protect the personal rights of a free black, is here made the source of holdings which made it legally impossible to protect the personal rights of a fetus. Forever denied the status of person "in the whole sense of the term," forever subordinated to the psychological health of his mother, the baby in the womb has been deprived of the possibility of protection by state or federal law. It would be a waste of valuable energy to exert any effort at amending the abortion laws to achieve in the last two or three months of fetal life the uncertain protection which the Court does not outalw.

A second major irony is that the Court's alternative authority for the right to abort is the Ninth Amendment. This Amendment reads: "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." The people had already spoken on abortion through the legislatures of fifty states. In Michigan and North Dakota, crushing majorities of the people had, as recently as November 1972, rejected the demand that abortion be allowed on five-month-old fetuses. Who would contend that what Justice Blackmum and his six colleagues legislated could be passed as law in Congress or in any popular referendum? How could the rights of the people be more effectively "disparaged" by an elite than for seven members of a court to pronounce their efforts at controlling assaults on life to be unconstitutional?

These ironies suggest that the solution must be drastic. A majority which will mock the people with the doctrines of technocratic elitism will not stay its hand if confronted with new legislation not conforming to its sovereign mandate. The root of the problem must be reached. Two lines of attack are possible. They could be pursued concurrently:

First. The Court could be expanded from nine to 15. This solution could be labeled "The Abraham Lincoln Solution." It is the idea he put forward in the famous Lincoln-Douglas debates, when Douglas insisted that Dred Scott was the law of the land. Douglas, he observed, had been one of five new judges added to the Supreme Court of Illinois, "to break down the four old ones." Was not, he implied, a change in membership in the Court a constitutional way of correcting a bad decision?

In many minds sensitive to the Court's place in our institutional structure there must be reluctance to change the traditional number in response to a particular decision. The "court-packing" plan of Franklin D. Roosevelt and the strong opposition it engendered come to mind. Nonetheless, there is reason why an expansion of the Court may be considered at this time as more than an ad hoc answer to a decision. A committee appointed by the Chief Justice himself (the "Freund Committee") has proposed that the Court be relieved of many of its burdens by the creation of a national appellate for adjudication by the Supreme Court itself. The plain implication of the proposal is that nine justices are far too few to handle the enormous modern increase in the Court's business. Expansion of the Court to 15 would meet this problem directly without the disadvantage of bifurcating the functions of the highest tribunal. Expansion can be rationally justified as a functional necessity at the same time that it affords a vehicle for restoring the rights of the people.

Expansion has a practical basis. Its political attractiveness does not need underlining. It is, still, however a temporary response. It does not meet the moral issue at its deepest level. It does not provide constitutional protection for human life in the future.

The second possible course, then, is to follow the approach actually taken to overturn Dred Scott: Amend the Constitution. Under Wade and Bolton the fetus can never be a person within the Fourteenth Amendment, the people can never vote to give effective protection to the fetus. Very well, let the people defend the fetus by a new amendment.

The people might go further. They might defend not only humans in the womb, but all nonviable humans-all humans threatened with possible classification as being lacking the "capability of meaningful life." The infant suffering from genetic deficiencies, the retarded child, the insane or senile adult-all of these potential victims of a "quality of life" mystique could be defended by a Human Life Amendment to our Constitution.