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STATEMENT OF LAURENCE H. TRIBE, PROFESSOR OF LAW,

HARVARD UNIVERSITY Mr. TRIBE. Thank you, Mr. Chairman. It is an honor to be here to address this important issue. Like my colleague John Ely, I have also written an article on the subject. I come out at the opposite end of this issue, defending the Court's decisions, although not all the reasons the Court gave. I have submitted that article for the record, in case you find it useful.

Senator Bayh. We will also put that in the record, without objection.

[The document referred to follows:]

THE SUPREME COURT, 1972 TERM

FOREWORD: TOWARD A MODEL OF ROLES
IN THE DUE PROCESS OF LIFE AND LAW

by

LAURENCE H. TRIBE

Reprinted From
HARVARD LAW REVIEW
Vol. 87, No. 1, November 1973

Copyright © 1973 by THE HARVARD LAW REVIEW ASSOCIATION

Cambridge, Mass., U.S.A. VOLUME 87

NOVEMBER 1973

NUMBER 1

HARVARD LAW REVIEW

THE SUPREME COURT

1972 TERM
FOREWORD: TOWARD A MODEL OF ROLES IN THE

Due PROCESS OF LIFE AND Law

Laurence H. Tribe *

U

NLIKE Yeats' "rough beast, its hour come round at last," 1

substantive due process may yet enjoy an auspicious second coming. For the Supreme Court's 1972 Term points the way toward a conception of substantive due process that may avoid the fate of that doctrine's earlier incarnation in American constitutional law. This Foreword will venture a tentative exploration of the "widening gyre" 2 implicit in several of the Court's recent decisions.

15 But

I. Roe AND Rodriguez: THE CHALLENGE Last year in these pages, Gerald Gunther proposed a revitalized enforcement of the constitutional requirement that legislative means substantially further legislative ends. For the pragmatic reason that “due process carries a repulsive connotation of value-laden intervention for most of the Justices, of the Burger Court as well as the Warren Court,” 4 Professor Gunther suggested that the inquiry could “best be carried forward under the banner of equal protection rather than due process ... in San Antonio Independent School District v. Rodriguez, its major opportunity this Term to scrutinize a means-end relationship

* Professor of Law, Harvard University. B.A., Harvard, 1962; J.D., 1966.

This Article was prepared in connection with research supported in part by the Childhood and Government Project at the University of California, Berkeley. I wish to express my gratitude also to the Editors of the Harvard Law Review and, for their many helpful comments, to Sissela Bok, Paul Mishkin, and Carolyn Tribe.

1 Yeats, The Second Coming, in 2 THE OXFORD ANTHOLOGY OF ENGLISH LITERATURE 1700 (1973).

2 Id.

3 Gunther, The Supreme Court, 1971 Term Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Protection, 86 Harv. L. Rev. 1, 20 (1972) (hereinafter cited as Gunther).

4 Id. at 42. sid. 8411 U.S. 1 (1973).

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HARVARD LAW REVIEW

[Vol. 87:1

under the equal protection clause, the Court seemed disinclined to give the rational connection rule much bite, sustaining school finance schemes on a basis that three of the dissenters thought reduced “equal protection analysis (to) no more than an empty gesture.”? And in Roe v. Wade 8 and Doe v. Bolton,' when the Court had its most dramatic opportunity to express its supposed aversion to substantive due process, it carried that doctrine to lengths few observers had expected, imposing limits on permissible abortion legislation so severe that no abortion law in the United States remained valid. 10

I will venture no predictions in this Foreword about where the Court will turn next, but I will suggest a framework in terms of which the contrast between the abortion and the school finance decisions may be comprehended, a framework which I believe offers a fair chance of giving substantive due process a more respectable place in American constitutional law than it has enjoyed since 1937.11

8

II. EXPLORING THE Roe OPINION: INITIAL OBSERVATIONS

The Court in Roe expressly concedes the legitimacy of what it deems to be the state's interests, the protection of the pregnant

ald. at 68 (White, J., dissenting, joined by Douglas and Brennan, JJ.); see id. at 70–72, 127-30 (Marshall, J., dissenting); Goodpaster, The Constitution and Fundamental Rights, 15 Ariz. L. Rev. 479, 519 (1973). See also Salyer Land Co. v. Tulare Water Dist., 410 U.S. 719 (1973), noted p. 94 infra; Mahan v. Howell, 410 U.S. 315 (1973), noted p. 85 infra.

410 U.S. 113 (1973), noted p. 75 infra. 410 U.S. 179 (1973), noted p. 75 infra.

10 The resurgence of the due process clause as an independent source of doctrine apart from the "incorporated specifics" of the Bill of Rights was also evident in several of the Court's criminal procedure decisions this Term. See, e.g., Chambers v. Mississippi, 410 U.S. 284 (1973) (procedural due process violated by the combined operation, against the accused, of the state's rules barring hearsay and those barring impeachment of one's own witness); Wardius v. Oregon, 93 S. Ct. 2208 (1973) (procedural due process requires state to inform accused of its intended rebuttal witnesses if it insists on receiving pretrial notice of intent to offer alibi defense); cf. Washington v. Texas, 388 U.S. 14 (1967) (incorporating specifically the compulsory process clause of the sixth amendment).

11 In West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), the Court sustained minimum wage legislation in overruling Adkins v. Children's Hosp., 261 U.S. 525 (1923), and initiated the overturning of an entire series of cases like Lochner v. New York, 198 U.S. 45 (1905), which had struck down as violative of due process a state law limiting to 10 hours a day and 60 hours a week the length of time bakers could work. See also Nebbia v. New York, 291 U.S. 502 (1934); note 35 infra. In some respects, this Foreword might be regarded as a response to the mounting fear that "the remainder of this century could be witness to Lochner's ghost in the service of another cause." Strong, The Economic Philosophy of Lochner: Emergence, Embrasure and Emasculation, 15 Ariz. L. Rev. 419, 455 (1973).

1973]

THE SUPREME COURT - FOREWORD

3

woman's health and the preservation of the fetus' potential life.12 And it does not question the existence of a rational connection between these two interests and the state's anti-abortion law. Nevertheless, after a copious review of the history of abortion since the Persian Empire,13 the Court (1) cites several cases to illustrate that "a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution”, 14 (2) asserts, without once explaining what it means by "privacy,” that this right “is broad enough to encompass a woman's decision whether or not to terminate her pregnancy”; 15 (3) holds, relying largely on equal protection precedents, that regulations limiting a woman's fundamental right to privacy in this area may be justified only by a "compelling state interest”, 16 (4) concludes that the "compelling” point with respect to the state's interest in the mother's health, "in the light of present medical knowledge, is at approximately the end of the first trimester”, 17 and (5) asserts that the "compelling” point with respect to the state's interest in the potential life of the fetus "is at

viability.” 18

To justify its ruling as to the invalidity of health regulation in the first trimester, the Court says that since the risk of a woman's

12

410 U.S. at 148–50. 13 Id. at 129–47. The Court's recitation of the history seems to be designed largely to support its view that "at the time of the adoption of our Constitution

a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today.” Id. at 140. But the bearing of that proposition on the constitutional issue is unclear. For when a society attempts to constitute its future in terms of a charter whose relevance will be timeless, its work must be understood more as a projection of aspirations than as a sanctification of the present. Thus, even a universal assumption in 1789 or 1900 that abortion could have been forbidden by law without constitutional objection would hardly demonstrate that the Court exceeds its mandate when it holds, in the America of 1973, that the abortion decision belongs to women rather than to the states.

14 Id. at 152. 15 Id. at 153 16 Id. at 155 17 Id. at 163.

18 Id. The Court says this occurs between 24 and 28 weeks, but it defines viability as ability to survive outside the mother's womb with artificial support. Id. at 160, 163. Although the Court later notes its awareness of such advances in biomedical technology as fetal transplants and artificial wombs, id. at 161, it does not explore the implications such devices would have for its holding as to the first trimester if they should become widely available in very early pregnancy. Some commentators have simply suggested statutorily incorporating 24 weeks as the point before which abortion is unconditionally allowed. See, e.8., Note, Abortion after Roe and Doe: A Proposed Statute, 26 VAND. L. Rev. 823, 824, 827–29 (1973).

For a description of the holding in Doe, see pp. 76–77, 80 infra.

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