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[Vol. 87:1 death in first-trimester abortions appears to be at least as low as that in normal childbirth,19 the physician and patient must be free to terminate any pregnancy during this trimester "without regulation by the State." 20 But the Court never explains why comparative mortality figures should provide the only constitutionally relevant measure of permissible state regulation of a particular procedure in the interest of health, or why states should not be allowed to forbid altogether, even in early pregnancy, any category of abortions demonstrably more dangerous than childbirth to a woman's life or health.21

The Court says even less to justify its crucial conclusion that the state's interest in potential life does not become "compelling" until viability. One reads the Court's explanation several times before becoming convinced that nothing has inadvertently been omitted: 22

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.

Clearly, this mistakes "a definition for a syllogism,' "23 and offers no reason at all for what the Court has held. In any event, even

19 410 U.S. at 149 & n.144, 163.

20 Id. at 163. Presumably, states could continue to regulate first-trimester abortion procedures to whatever extent such regulation is implicit in medical licensure generally. See id. at 165 (state may proscribe abortions not performed by licensed physicians).

21 Cf. p. 30 & note 167 infra.

22 410 U.S. at 163.

23

13 Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 924 (1973) [hereinafter cited as Ely].

24 But see p. 28 infra. There is, moreover, something deeply unsettling about the Court's conclusion that, even after fetal viability, the state may not forbid any abortion that is "necessary to preserve the life or health of the mother." 410 U.S. at 164. Since the procedures for removal of a viable fetus typically present the same risks to the woman whether the fetus is saved or destroyed, Conversations with Dr. Alan Stone, Professor of Law and Psychiatry, Harvard Law School and Harvard Medical School, and Dr. John Grover, Assistant Clinical Professor of Obstetrics and Gynecology, Harvard Medical School, in Cambridge, Mass., Sept. 21, 25, 1973, it seems questionable that the Court actually intended to mandate a choice in favor of the latter. The only situations in which a justification for such a choice could be plausibly advanced would be those involving a troublesome deference to the woman's desire to preserve her mental health by assuring that the unwanted fetus be killed.

The Texas statute invalidated in Roe includes acts causing "premature birth" as abortions, but the statutory juxtaposition of such acts with those destroying "the fetus or embryo . . . in the woman's womb," TEX. PENAL CODE ANN. art. 1191 (1961), quoted in 410 U.S. at 117 n.1 (emphasis added), suggests that prematurity here means to include only such accelerated delivery as deliberately de

1973]

THE SUPREME COURT - FOREWORD

5

if there is a need to divide pregnancy into several segments with lines that clearly identify the limits of governmental power, "interest-balancing" of the form the Court pursues fails to justify any of the lines actually drawn.

III. RATIONALITY AND SUBSTANTIVE DUE PROCESS

The Court's opinions invite a predictable critique: while questioning neither the legitimacy of the legislature's goals nor the rationality of their relation to the challenged provisions, the opinions appear "simply [to] announce that [the goals are] not important enough to sustain the restriction." 25 If the Court had at least applied the traditional rationality standard instead of striking its own balance of values, Justice Rehnquist suggests in dissent, the disaster would have been less complete.26

I doubt, however, that a form of judicial review which scrutinized only the rationality of the connection between legislative means and legislative ends 27 would provide a satisfactory solution to the central problem troubling Roe's critics, that of entrusting courts with major judgments as to ends. Obviously, a law forbidding a designated activity, such as the use of a contraceptive or the performance of an abortion, has as one of its purposes creases the probability of the child's ultimate survival outside the womb. Hereafter, I use the term "abortion" to mean the deliberate destruction of an embryo or fetus inside the uterus, during its removal, or after its separation from the woman's body. See also p. 29 infra.

25

Ely 942. See also Lee, Mr. Herbert Spencer and the Bachelor Stockbroker: Kramer v. Union Free School District No. 15, 15 ARIZ. L. REV. 457, 470-71, 473-74 (1973). One recent defense of Roe v. Wade, see Heymann & Barzelay, The Forest and the Trees: Roe v. Wade And Its Critics, 53 B.U. L. Rev. 765 (1973) [hereinafter cited as Heymann], is subject to much the same criticism, for its persuasive argument for the proposition that a law interfering with a family's childbearing autonomy can be justified only by "a very good reason," id. at 765, stops short of supporting its conclusion that the Court was "surely . . . right,” id. at 776, to reject the legislative claim that protecting unborn human beings even in very early pregnancy constitutes a sufficiently "good reason" to withstand the close scrutiny demanded. Any defense of Roe which leaves this issue unresolved seems to me to beg the most serious problem Roe presents.

26 See 410 U.S. at 173. Indeed, Justice Rehnquist agrees in his dissent that the "liberty" protected by fourteenth amendment due process "embraces more than the rights found in the Bill of Rights." Id. at 172-73. And, if "the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy," he would "have little doubt that [the law] . . . would lack a rational relation to a valid state objective. . . ." Id. at 173. Since Justice White leaves open the possibility that he would find abortions constitutionally protected whenever required to avoid "substantial hazards to either life or health," Doe v. Bolton, 410 U.S. 179, 223 (1973); cf. Eisenstadt v. Baird, 405 U.S. 438, 464 (1972) (White, J., concurring), the Court is evidently unanimous in accepting a fairly sweeping concept of substantive due process, although various Justices continue to resist that characterization. See note 39 infra.

27 See Gunther 20-24, 37-48.

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[Vol. 87:1 the prohibition of the activity in question. That this end may in turn have been sought by various legislators for a variety of more remote reasons,28 some more persuasively linked to the law than others, cannot obscure that basic purpose. If this universally available guarantee of a perfect means-end "fit" terminates judicial review, no law could ever be deemed invalid; if it does not, the law's constitutional validity must turn on an assessment of the end itself, judging its acceptability either as a general matter or in the context of the particular kind of legislation involved.29 The aim of a "relatively vigorous" judicial scrutiny that would "concern itself solely with means, not with ends," 30 so as to give real force to the rationality test while avoiding "ultimate value judgments about the legitimacy and importance of legislative purposes," 31 thus evaporates in a verbal mist while inviting manipulation that conceals the substantive judgments underlying judicial choice.

In the era of Lochner v. New York,32 the crucial substantive judgment one denying the legitimacy of legislation designed to redress economic inequalities or to protect certain groups of persons from their own weakness or improvidence — was occasionally clouded by the rationality formula,33 but in the end it emerged

28 A mismatch between means and ends, when the only ends examined are those argued in a law's defense by an executive officer, may indicate no more than that the officer did not advance the right ends in the law's defense. That his oversight or deliberate choice should be allowed thereby to frustrate the past efforts of his jurisdiction's legislature seems strange. Nor can I imagine any satisfactory way of forcing the executive to defend a law in terms of the legislature's own, often conflicting, goals, whether hidden or publicly expressed. Nor, finally, is it clear why even a law whose stated ends turn out to be frustrated rather than advanced by its enactment to put the hardest case-should for that reason alone be invalidated as an arbitrary restraint on liberty, or an arbitrary discrimination, unless one can say that no other end which the law clearly serves is, in context, constitutionally legitimate. Perhaps invalidation despite the existence of such other ends would to some degree foster legislative accountability and care, cf. Gunther 44, 47, but that seems a thin reed on which to rest so heavy-handed a doctrine. Curiously, Professor Bickel appears to regard it as too obvious to require argument that a law should be struck down as irrational when it is clearly out of line with the "purpose [stated] in [its] statutory preamble." A. BICKEL, THE LEAST DANGEROUS BRANCH 224 (1962).

29 See Ely, Legislative and Administrative Motivation in Constitutional Law, 79 YALE L.J. 1205, 1224-28 (1970); Note, Legislative Purpose, Rationality and Equal Protection, 82 YALE L.J. 123 (1972); cf. A. BICKEL, supra note 28, at 225. See also note 41 infra.

30 Gunther 21.

31 Id. at 21-22.

32 198 U.S. 45 (1905); see note 11 supra.

33 See, e.g., Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 517 (1924); Coppage v. Kansas, 236 U.S. 1, 15-16 (1915); Lochner v. New York, 198 U.S. 45, 5759, 62, 64 (1905); Strong, supra note 11, at 432-49.

57-782 O 76-20

clearly as the villain of the piece.34 One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.

35

Certainly that judgment is not to be equated with Lochner's characterization of paternalism and equalization as illegitimate goals of law. Indeed, the Court in this Term's obscenity cases 36 expressly rejected the view that the Constitution always places "conduct involving [only] consenting adults. . . beyond state regulation," "37 and suggested with scorn that the opponents of anti-obscenity laws, who in effect demand a " laissez faire' market solution to the obscenity-pornography problem," are the very 'people who have never otherwise had a kind word to say for laissez faire,' . . . ." 38

Nor has the Court had a kind word to say for substantive due process as embodied in Lochner since its much celebrated demise

34 See pp. 12-13 & note 70 infra.

The notion at Lochner's core that legislative actions are void unless they conform to a superior source of right and justice embodied in a system of natural law standing outside of, and above, the positive law of the state- can be traced at least to the Pythagoreans and the Sophists. See C. HAINES, THE REVIVAL OF NATURAL LAW CONCEPTS 4-12 (1930).

35 Compare 410 U.S. at 164 (sustaining regulation to protect the woman's health), with Adkins v. Children's Hosp., 261 U.S. 525, 552–53, 556 (1923) (denying economic protection of women as legitimate governmental objective, see note II supra). Under a combination of doctrines revolving about, but not limited to, substantive due process, see A. PAUL, CONSERVATIVE CRISIS AND THE RULE OF LAW: ATTITUDES OF BAR AND BENCH, 1887-1895, at 227-37 (1960), the Court in the Lochner era emasculated legislative efforts to control the rates charged by massive enterprises, Chicago, M. & St. P. Ry. v. Minnesota, 134 U.S. 418 (1890), to limit huge economic aggregations, United States v. E.C. Knight Co., 156 U.S. 1 (1895), and to redistribute income through federal taxation, Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895), in addition to striking down regulations protective of laborers. See, e.g., Jay Burns Baking Co. v. Bryan, 264 U.S. 504 (1924); Adkins, supra; Lochner v. New York, 198 U.S. 45 (1905).

36 United States v. Orito, 93 S. Ct. 2674 (1973); Paris Adult Theatre I v. Slaton, 93 S. Ct. 2628 (1973), noted p. 160 infra; cf. Kaplan v. California, 93 S. Ct. 2680 (1973); United States v. 12 200-Ft. Reels of Super 8mm. Film, 93 S. Ct. 2665 (1973); Miller v. California, 93 S. Ct. 2607 (1973), noted p. 160 infra.

37 Paris Adult Theatre I v. Slaton, 93 S. Ct. 2628, 2641 (1973). At that point, the Court trailed with a telling footnote: "14. Cf. Mill, On Liberty (1955 ed.), 13." The message could hardly have been clearer: liberal individualism is not the Court's current credo. Nor need one accept that credo in order to reject the Court's conclusions in the obscenity cases. In particular, I regard as dispositive the danger, stressed in Justice Brennan's dissent, that anti-obscenity laws will deter conduct undeniably protected by the first amendment even if the dissemination of pornography to forewarned adults is not itself thought to implicate important constitutional values. See 93 S. Ct. at 2649-51 (Brennan, J., dissenting). See also pp. 149-53 infra, discussing Broadrick v. Oklahoma, 93 S. Ct. 2908 (1973).

38 Paris Adult Theatre I v. Slaton, 93 S. Ct. 2628, 2639 (1973), quoting I. KRISTOL, ON THE DEMOCRATIC IDEA IN AMERICA 37 (1972).

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[Vol. 87:1 in 1937.39 Indeed, apart from concluding from time to time that due process requires civilized methods of law enforcement and commands procedural fairness in governmental activities," the post-1937 Court has sought to limit the fourteenth amendment due process clause to a device for protecting against state infringement the political and religious liberties secured from federal abridgment by the first amendment.*2

More generally, some observers of the Court 43 and some of

39 See note 11 supra. See also Ferguson v. Skrupa, 372 U.S. 726, 730 (1963). Although the Court has continued to cite with approval the two Lochner-era decisions which struck down state laws interfering with educational freedom on the part of parents, Meyer v. Nebraska, 262 U.S. 390 (1923) (invalidating statute forbidding foreign language teaching below the ninth grade), and Pierce v. Society of Sisters, 268 U.S. 510 (1925) (invalidating state requirement that all parents send their children to public schools), it has tended to treat them as essentially first amendment cases. See, e.g., Epperson v. Arkansas, 393 U.S. 97, 105-06 (1968); Griswold v. Connecticut, 381 U.S. 479, 482 (1965); cf. Poe v. Ullman, 367 U.S. 497, 543-44 (1961) (Harlan, J., dissenting). Even in Griswold, which invalidated a state ban on the use of contraceptives, the Court insisted that it was "declin [ing] the invitation" to be guided by Lochner, 381 U.S. at 482, and seemed to say that its judgment did not rest on fourteenth amendment due process, although no other constitutional provision was directly applicable. See also 410 U.S. at 117.

40 See, e.g., Rochin v. California, 342 U.S. 165 (1952); Wolf v. Colorado, 338 U.S. 25 (1949).

41 See, e.g., Vlandis v. Kline, 93 S. Ct. 2230 (1973); Fuentes v. Shevin, 407 U.S. 67 (1972); Goldberg v. Kelly, 397 U.S. 254 (1970); Sniadach v. Family Fin. Corp., 395 U.S. 337 (1969); Willner v. Committee on Character & Fitness, 373 U.S. 96 (1963); Schware v. Board of Bar Examiners, 353 U.S. 232 (1957). Typically, in all but two of these cases, the effect of due process as the Court construed it has simply been to accord individuals adversely affected by threatened governmental action a right to participate in certain types of proceedings to determine whether the rule underlying the contemplated action is being properly applied to them. In Schware and Vlandis, however, the effect of due process as construed by the Court was to limit the substantive grounds on which certain denials of benefits, whether the right to practice a profession (Schware) or the enjoyment of reduced tuition rates at a state college (Vlandis), can lawfully be based. In the absence of some constitutional underpinning for whatever substantive limitation is involved, each such case becomes difficult to understand other than as an unsupported substantive conclusion cloaked in procedural guise. See also United States Dep't of Agriculture v. Murry, 93 S. Ct. 2832 (1973); United States Dep't of Agriculture v. Moreno, 93 S. Ct. 2821 (1973); Stanley v. Illinois, 405 U.S. 645 (1972); Bell v. Burson, 402 U.S. 535 (1971). In these terms, Bell, Stanley, and Murry might each be thought to rest on a "delegation" base, cf. notes 142, 177 infra; Schware and Moreno, on a "freedom of association" base, 353 U.S. at 246; 93 S. Ct. at 2826 & n.7; and Vlandis, on a "right to travel" base, 93 S. Ct. at 2235 n.6. See also pp. 67, 125 & notes 223, 224 infra.

42 See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969); Sweezy v. New Hampshire, 354 U.S. 234 (1957); Cantwell v. Connecticut, 310 U.S. 296 (1940).

43

3 See, e.g., Emerson, Nine Justices in Search of a Doctrine, 64 MICH. L. Rev. 219, 223-24 (1965); Kauper, Penumbras, Peripheries, Emanations, Things Fundamental and Things Forgotten: The Griswold Case, 64 MICH. L. REV. 235, 251 (1965); cf. Comment, Fundamental Personal Rights: Another Approach to Equal