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The Yale Law Journal

Vol. 82: 920, 1973

simply announces that the right to privacy “is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” Apparently this conclusion is thought to derive from the passage that immediately follows it:

The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.80

All of this is true and ought to be taken very seriously. But it has nothing to do with privacy in the Bill of Rights sense or any other the Constitution suggests.81 I suppose there is nothing to prevent one from using the word “privacy” to mean the freedom to live one's life without governmental interference. But the Court obviously does not so use the term.82 Nor could it, for such a right is at stake in every case. Our

passage cited by the Court in Roe reiterated Griswold's conclusion that privacy interests are threatened by a ban on the use of contraceptives, but declined to decide whether its rationale should be extended to restrictions on distribution. See p. 930 supra. Prince upheld the application of a child labor law to Jehovah's Witness children distributing religious literature. It did, however, reiterate the conclusion of Pierce and Meyer that family relationships are entitled to special protection. Those two cases are products of “the Lochner era," see pp. 937-43 infra. The vitality of the theory on which they rested has been questioned, Epperson v. Arkansas, 393 U.S. 97, 105-06 (1968), and the Court has attempted to recast them as First Amendment cases. Griswold v. Connecticut, 381 U.S. 479, 482 (1965); cf. Poe v. Ullman, 367 U.S. 497, 533-34 (1961) (Harlan, J., dissenting). Even reading the cases cited “for all that they are worth,” it is difficult to isolate the “privacy” factor (or any other factor that seems constitutionally relevant) that unites them with each other and with Roe. So the Court seems to admit by indicating that privacy has "some extension” to the activities involved, and so it seems later to grant even more explicitly.

The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus. The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt, Griswold, Stanley, Loving, Skinner, Pierce, and Meyer were respectively concerned. 93 S. Ct. at 730. 80. 93 S. Ct. at 727. See also id. at 757 (Douglas, J., concurring).

81. It might be noted that most of the factors enumerated also apply to the incon. venience of having an unwanted two-year-old, or a senile parent, around. Would the Court find the constitutional right of privacy invaded in those situations too? I find it hard to believe it would; even if it did, of course, it would not find a constitutional right to "terminate” the annoyance-presumably because "real" persons are now involved. But cf. p. 926 supra & note 48 supra. But what about ways' of removing the annoyance that do not involve "termination”? Can they really be matters of constitutional entitlement?

82. But cf. 93 S. Ct. at 758-59 (Douglas, J., concurring).

Roe v. Wade

life styles are constantly limited, often seriously, by governmental regulation; and while many of us would prefer less direction, granting that desire the status of a preferred constitutional right would yield a system of government" virtually unrecognizable to us and only slightly more recognizable to our forefathers. 83 The Court's observations concerning the serious, life-shaping costs of having a child prove what might to the thoughtless have seemed unprovable: That even though a human life, or a potential human life, hangs in the balance, the moral dilemma abortion poses is so difficult as to be heartbreaking. What they fail to do is even begin to resolve that dilemma so far as our governmental system is concerned by associating either side of the balance with a value inferable from the Constitution.

But perhaps the inquiry should not end even there. In his famous Carolene Products footnote, Justice Stone suggested that the interests to which the Court can responsibly give extraordinary constitutional protection include not only those expressed in the Constitution but also those that are unlikely to receive adequate consideration in the political process, specifically the interests of "discrete and insular minorities” unable to form effective political alliances.84 There can be little doubt that such considerations have influenced the direction, if only occasionally the rhetoric, of the recent Courts. My repeated efforts to convince my students that sex should be treated as a “suspect classification” have convinced me it is no easy matter to state such considerations in a "principled" way. But passing that problem, Roe is not an appropriate case for their invocation.

Compared with men, very few women sit in our legislatures, a fact I believe should bear some relevance-even without an Equal Rights Amendment-to the appropriate standard of review for legislation that favors men over women.85 But no fetuses sit in our legislatures. Of

83. Cf. Katz v. United States, 389 U.S. 347, 350-51 (1967).
84. United States v. Carolene Products Co., 304 U.S. 146, 152 n.4 (1938).

85. This is not the place for a full treatment of the subject, but the general idea is this: Classifications by sex, like classifications by race, differ from the usual classification-to which the iraditional “reasonable generalization" standard is properly applied-in that they rest on "we-they" generalizations as opposed to a "they-they" generalization. Take a familiar example of the usual approach, Williamson v. Lee Optical Co., 348 U.S. 483 (1955). Of course few legislators are opticians. But few are optometrists either. Thus while a decision to distinguish opticians from optometrists will incorporate a stereotypical comparison of two classes of people, it is a comparison of two "they" stereotypes, viz. “They [opticians) are generally inferior to or not so well qualified as they [optometrists] are in the following respect(s), which we find sufficient to justify the classification: However, legislators traditionally have not only not been black (or female); they have been white (and male). A decision to distinguish blacks from whites (or women from men) will therefore have its roots in a comparison between a "we" stereotype and a “they" stereotype, viz. “They (blacks or women) are generally inferior to or not so well qualified as we [whites or men) are in the following respect(s), which we find sufficient to justify the classification: ....

The Yale Law Journal

Vol. 82: 920, 1973

course they have their champions, but so have women. The two interests have clashed repeatedly in the political arena, and had continued to do so up to the date of the opinion, generating quite a wide variety of accommodations. 86 By the Court's lights virtually all of the legislative accommodations had unduly favored fetuses; by its definition of victory, women had lost. Yet in every legislative balance one of the competing interests loses to some extent; indeed usually, as here, they both do. On some occasions the Constitution throws its weight on the side of one of them, indicating the balance must be restruck. And on others—and this is Justice Stone's suggestion—it is at least arguable that, constitutional directive or not, the Court should throw its weight on the side of a minority demanding in court more than it was able to achieve politically. But even assuming this suggestion can be given principled content, it was clearly intended and should be reserved for those interests which, as compared with the interests to which they have been subordinated, constitute minorities unusually incapable of protecting themselves.87 Compared with men, women may constitute

The choice between classifying on the basis of a comparative generalization and attempting to come up with a more discriminating formula always involves balancing the increase in fairness which greater individualization will produce against the added costs it will entail. It is no startling psychological insight, however, that most of us are delighted to hear and prone to accept comparative characterizations of groups that suggest that the groups to which we belong are in some way superior to others. (I would be inclined to exclude most situations where the "we's” used to be “they's,cf. Ferguson v. Skrupa, 372. U.S. 726 (1963), and would therefore agree that the unchangeability of the distinguishing characteristic is indeed relevant, though it is only part of the story.) The danger is therefore greater in we-they situations that we will overestimate the validity of the proposed stereotypical classification by seizing upon the positive myths about our own class and the negative myths about theirs-or indeed the realities respecting some or most members of the two classes-and too readily assuming that virtually the entire membership of the two classes fit the stereotypes and therefore that not many of "them” will be unfairly deprived, nor many of “us” unfairly benefitted, by the proposed classification. In short, I trust your generalizations about the differences between my gang and Wilfred's more than I do your generalizations about the differences between my gang and yours.

Of course most judges, like most legislators, are white males, and there is no particular reason to suppose they are any more immune to the conscious and unconscious temptations that inhere in we-they generalizations. Obviously the factors mentioned can distort the evaluation of a classification fully as much as they can distort its formation. But all this is only to suggest that the Court has chosen the right course in reviewing classifications it has decided are suspicious-a course not of restriking or secondguessing the legislative cost-benefit balance but rather of demanding a congruence between the classification and its goal as perfect as practicable. When in a given situation you can't be trusted to generalize and I can't be trusted to generalize, the answer is not to generalize-so long as a bearable alternative exists. And here, the Court has recog. nized, one does-the alternative of forcing the system to absorb the additional cost that case by case determinations of qualification will entail. Legislatures incur this cost volun. tarily in a great many situations, and courts have on other occasions forced them to do so where constitutionally protected interests will be threatened by an imperfectly fitting classification. The unusual dangers of distortion that inhere in a we-they process of comparative generalization, the Court seems to have been telling us in the racial classification cases, also demand that we bear the increased cost of individual justice.

86. See 93 S. Ct. at 708-10, 720, 723-24, 742-43, 752-55.

87. If the mere fact that the classification in issue disadvantages a minority whose viewpoint was not appreciated by a majority of the legislature that enacted 'it were sufficient to render it suspect, all classifications would be suspect.

Roe v. Wade

such a "minority"; compared with the unborn, they do not.68 I'm not sure I'd know a discrete and insular minority if I saw one, but confronted with a multiple choice question requiring me to designate (a) women or (b) fetuses as one, I'd expect no credit for the former answer.89

Of course a woman's freedom to choose an abortion is part of the “liberty" the Fourteenth Amendment says shall not be denied without due process of law, as indeed is anyone's freedom to do what he wants. But “due process” generally guarantees only that the inhibition be procedurally fair and that it have some “rational" connection-though plausible is probably a better word”—with a permissible governmental goal.o1 What is unusual about Roe is that the liberty involved is accorded a far more stringent protection, so stringent that a desire to preserve the fetus's existence is unable to overcome it-a protection more stringent, I think it fair to say, than that the present Court accords the freedom of the press explicitly guaranteed by the First Amendment. 92 What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution,

88. Even if the case could be made that abortion is an issue that pits the interests of men against those of women, that alone would not bring it within a theory that renders suspect classifications based on generalizations about the characteristics of men and women. And even if there were some way to expand the theory (and I confess I cannot see what judicial remedy would be appropriate were the theory so expanded, but see note 85 supra, third paragraph) to cover all "interests of men versus interests of women” situations, it will take some proving to establish that this is one:

[D]ecisions in society are made by those who have power and not by those who have rights. Husbands and boy friends may in the end wield the power and make the abortion decision. Many women may be forced to have abortions not because it is their right, but because they are forced by egocentric men to submit to this

procedure to avoid an unwanted inconvenience to men. Stone, supra note 22.

89. It might be suggested that legislation restricting abortion had been kept on the books by the efforts of an intense minority and did not represent the will of most legislative majorities. Though I am aware of no basis for inferring this is any truer here than it is with respect to other sorts of legislation, see also note 86 supra, it is the sort of claim that is hard to disprove. (The phenomenon described at pp. 946-47 infra, one of relief that the issue has been taken out of the political arena, is a very different matter.) In any event it is not the Court's job to repeal such legislation. In the first place there is nothing unusual, and I was not aware there was anything wrong, with an intense minority's compromising on issues about which it feels less strongly in order to garner support on those it cares most about. Moreover, precisely because the claims involved are difficult to evaluate, I would not want to entrust to the judiciary authority to guess about them-certainly not under the guise of enforcing the Constitution. Leaving aside the arguable case of a law that has been neither legislatively considered nor enforced for decades, see A. ‘BICKEL, THE LEAST DANGEROUS BRANCH 143-56 (1962), the Court should rest its declaration of unconstitutionality, if any, on more than à guess about how widespread and intense the support for the law “really” is.

90. The claimed connection is often empirical, causal or normative. About all that does not seem to become involved is formal logic. See p. 941 infra; Ely, supra note 28, at 1237.49.

91. Even this statement of the demands of "substantive due process" is too strong for many Justices and commentators, who deny that any such doctrine should exist. See, e.g., pp. 937-38 infra.

92. See Branzburg v. Hayes, 408 U.S. 665 (1972).

The Yale Law Journal

Vol. 82: 920, 1973

the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included,93 or the nation's governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected visà-vis the interest that legislatively prevailed over it.94 And that, I believe-the predictable95 early reaction to Roe notwithstanding (“more of the same Warren-type activism"96)—is a charge that can responsibly be leveled at no other decision of the past twenty years.®? At times the

93. See pp. 928-33 supra. Necessarily, a claim of this sort can never be established beyond doubt; one can only proceed by examining the claims of those values he thinks, or others have suggested, are traceable to the Constitution. It is always possible, however, that someone will develop a general theory of entitlements that encompasses a given case and plausibly demonstrate its constitutional connections. It is also possible that had the constitutional right to an abortion been developed as constitutional doctrines usually are-that is incrementally, rather than by the quantum jump of Roe-the connection of the first step with the Constitution, and that of each succeeding step with its predecessor, would have seemed more plausible. I cannot bring myself to believe, however, that any amount of gradualism could serve to make anything approaching the entire inference convincing.

94. The thing about permitting disparity among state laws regulating abortion that I find most troubling is not mentioned by the Court, and that is that some people can afford the fare to a neighboring state and others cannot. Of course this situation prevails with respect to divorce and a host of other sorts of laws as well. I wish someone could develop a theory that would enable the Court to take account of this concern without implying a complete obliteration of the federal system that is so obviously at the heart of the Constitution's plan. I have not been able to do so. See note 87 supra.

95. See pp. 943-45 infra. 96. See, e.g., Abortion, The New REPUBLIC, Feb. 10, 1973, at 9; Stone, supra note 22.

97. Of course one can disagree with the lengths to which the inferences have been taken; my point is that the prior decisions, including those that have drawn the most fire, at least started from a value singled out by, or fairly inferable from, the Constitution as entitled to special protection. Whatever one may think of the code of conduct laid down in Miranda v. Arizona, 384 U.S. 436 (1966), the Constitution does talk about the right to counsel and the privilege against self-incrimination. Whatever one may think of the strictness of the scrutiny exercised in Furman v. Georgia, 408 U.S. 238 (1972), the Eighth Amendment surely does indicate in a general way that punishments are to be scrutinized for erratic imposition ("unusual") and severity disproportionate to any good they can be expected to accomplish ("cruel").

Note that the claim in the text has to do with the capacity of the earlier decisions to be rationalized in terms of some value highlighted by the Constitution, not with the skill with which they were in fact rendered. It is now pretty generally recognized, for example, that the various "wealth discrimination" cases could better have been defended in terms of the constitutional attention paid explicitly or implicitly to the goods" whose distribution was in issue-the right to vote and the assurance of fair judicial procedures. See, e.g., Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7 (1969). Reynolds v. Sims, 377 U.S. 533 (1964), is a badly articulated opinion. Its only response to the argument made by Justice Stewartthat since an equal protection claim was involved, a rational defense of a disparity among the "weights” of votes should suffice-was simply to announce that the goals Justice Stewart had in mind were off limits. See Ely, supra note 28, at 1226-27. But even Justice Stewart could not take the equal protection mold too seriously, for he added he would not approve a plan that permitted “the systematic frustration of the will of a majority of the electorate of the State.” Lucas v. Colorado Gen. Assembly, 377 U.S. 713, 753-54 (1964) (footnote omitted). Such a plan, however, could be quite "rational" in terms of the sort of goals Justice Stewart had in mind, goals that in other contexts would count as legitimate. Obviously Justice Stewart was moved to some extent by the notion that a system whereby a minority could perpetuate its control of the government was out of accord with the system of government envisioned by the framers. See also Kramer v. Union Free School District No. 15, 395 U.S. 621, 628 (1969) (Warren, C.J., for the Court). This was what moved the Court too, though much further. And though the Court did

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