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THE SUPREME COURT - FOREWORD
mental stage as of which the fetus should be regarded as a human being with independent moral claims, then the propriety of entrusting its protection to government would follow from the consensus that states must have relatively wide latitude in fulfilling their responsibility to protect existing human lives from destruction.86
But the reality is that the "general agreement” posited above simply does not exist. Some regard the fetus as merely another part of the woman's body until quite late in pregnancy or even until birth; 87 others believe the fetus must be regarded as a helpless human child from the time of its conception.88 These differences of view are endemic to the historical situation in which the abortion controversy arose. Specifically, the advance of embryology and medicine over the past century and a half rendered untenable any
notion that the fetus suddenly “came to life" in a physiological sense at a definable point during pregnancy. Once the embryo's growth had been traced in a continuous line from a single unfertilized ovum 91 through the unbroken processes of fertilization, cell division, segmentation (in the case of identical twins), implantation of the blastocyst in the uterine wall, and
86 Even if one starts from the premise that the fetus is fully a human being throughout pregnancy, there remains considerable doubt as to the morality of requiring a woman to carry it to term. See, e.g., Thomson, A Defense of Abortion, 1 PHIL. & Pub. AFF. 47 (1971). See also Notes and Questions on the "Wrongful Life” Cases, Artificial Insemination, and the Control of Cloning, in L. TRIBE, CHANNELING TECHNOLOGY THROUGH LAW 273-80 (1973). But I proceed on the assumption that legislatively resolving such doubt against the woman's choice would not violate the Constitution.
87 A perhaps extreme but by no means unique view was expressed by Dr. Alan F. Guttmacher: “My feeling is that the fetus, particularly during its early intrauterine life, is simply a group of specialized cells that do not differ materially from other cells.” Symposium — Law, Morality, and Abortion, 22 RUTGERS L. REV. 415, 436 (1968).
See 410 U.S. at 159–61. Exactly what point in the spectrum of relevant biological events such persons define as the “time of conception" is usually quite obscure, as is the definition of when a child is in fact "born” within the understanding of those for whom birth marks the "moment” at which a new human life begins. Needless to say, all intermediate points - such as "quickening” or “viability" are also difficult to define in any wholly satisfactory way. Cf. note 18 supra & note 92 infra.
89 For a remarkable assertion that a consensus now exists, see Horan, Gorby & Hilgers, Abortion and the Supreme Court: Death Becomes a Way of Life, in ABORTION AND SOCIAL JUSTICE 301, 318 (T. Hilgers & D. Horan eds. 1972).
90 410 U.S. at 160. See also Fienus, “A Book on the Formation of the Fetus in Which It is Shown that the Rational Soul Is Infused on the Third Day" (1620), in Anonymous, De animatione foetus, 11 NOUVELLE REVUE THEOLOGIQUE 182 (1879), in Noonan, An Almost Absolute Value in History, in THE MORALITY OF ABORTION: LEGAL AND HISTORICAL PERSPECTIVES 1, 34 (J. Noonan ed. 1970).
91 Karl Ernest von Baer discovered the human ovum in 1827; by 1875 the joint action of spermatozoon and ovum had been determined. Noonan, supra note 90, at 38.
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gradual fetal development to the point of birth, those who believed in the sanctity of the fetus from the “moment” of quickening, or from some other "moment,” were deprived of the ability to link their belief to any distinct physical or biological event other than perhaps "conception,” which was itself later revealed as a complex and continuous process. 92
As often occurs when the progress of science exposes the complexity beneath events formerly conceived in simpler terms, inchoate feelings that could at one time have been clothed in secular trappings were thus forced into the mold of religious affirmations. For although none could deny that the developing fetus, and indeed the unfertilized ovum, represented “potential human life,” and while all could agree that the infant at birth was fully and independently a human being and entitled to treatment as such, the question of when the mysterious discontinuity was crossed — when the embryo or fetus "became fully human" could not be discussed in secular terms at all. In fact, the only bodies of thought that have purported in this century to locate the crucial line between potential and actual life have been those of organized religious doctrine.94 It is important to recognize that
410 U.S. at 161. The difficulty with drawing any line at "conception" so as to create a distinction between contraception and abortion is underscored by the growing range of devices such as the IUD, and chemicals such as the “morning-after" pill, which cannot be distinctly characterized as contraceptives or abortifacients. See, e.g., Note, Criminal Law - Abortion - The "Morning-After Pill” and Other Pre-Implantation Birth-Control Methods and the Law, 46 ORE. L. Rev. 211 (1967). If some moral difference between contraception and abortion is thought to lie in the fact that abortion prevents the birth of a person with a specific and determined genetic composition while contraception merely prevents the birth of a "statistical" person, cf. Calabresi, Reflections on Medical Experimentation in Humans, 1969 DAEDALUS 387, 388-92 ; Fried, The Value of Life, 82 Harv. L. Rev. 1415, 1416 (1969); Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1373 & n.140 (1971), then a chemical operating to destroy chromosomes during the process of their recombination after the nuclei of sperm and ovum had each divided would have to be deemed a contraceptive, since the genetic identity of the new individual would still have been undetermined when the chemical did its work, whereas a chemical operating to induce the recombined chromosomes to continue dividing and recombining indefinitely, so as to prevent the fertilized ovum from ever undergoing normal cell division, would have to be deemed an abortifacient - indeed, a multiple abortifacient --- since a new genetic identity would have been determined with each chromosomal recombination. Whether chemical substances with these precise properties will ever be discovered or synthesized is irrelevant to the conclusion that, so long as their existence is not unthinkable, one need only imagine their operation to see how arbitrary is the distinction posited and how problematic is any notion of “conception” as an objectively definable event.
93 See generally T. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (1962). 84 More modest theories disavow any certainty as to which event marks the
THE SUPREME COURT – FOREWORD
this has not been an accident; for the question when human life truly begins asks not for a discovery of the point at which the fetus possesses an agreed-upon set of characteristics which make it human, but rather for a decision as to what characteristics should be regarded as defining a human being. 95 And, at least at this point in the history of industrialized Western civilization,96 that decision in turn entails not an inference or demonstration from generally shared premises, whether factual or moral, but a statement of religious faith upon which people will invariably differ widely.
Legislatures were thus trapped. Unable simply to ignore the line between the potentially and actually human 97 — and yet
crucial transition but conclude that conception should be deemed decisive so as to avoid any risk that, by choosing a later line, one will mistakenly overshoot the correct point. Whether or not such "mortal wager" formulations evidence the very corruption religious thought which the draftsmen of the establishment clause feared would be occasioned by church-state entanglement, see p. 22 infra, is unclear, but the premise on which even they rest — that there is in fact a moment, albeit one that human beings may be forever barred from correctly identifying, after which the fetus must be considered, in some objective rather than merely conventional sense, an independent human being — is unmistakably religious in the sense used in the text.
95 It thus confuses the nature of the question to charge that those who would not find the characteristics of the embryo or early fetus sufficient to warrant its treatment as fully human are guilty of "the error of fact that a fetus is not a human being." Drinan, The Inviolability of the Right to be Born, in ABORTION AND THE LAW 123 (D. Smith ed. 1967). See also Horan, Gorby & Hilgers, supra note 89, at 318.
In a culture which draws less sharp a dichotomy than does our own between human and other life, or between the living and the inanimate, the entire debate would take a different form and my conclusions might well fail to hold.
97 Even though coherent moral or ethical theories might render such a line irrelevant, see generally S. Bok, Ethical Problems of Abortion, 1973 (forthcoming article prepared for Harvard Interfaculty Seminar on Child Rearing in Urban America), the inescapable fact remains that large numbers of people continue to believe that the "rightness" or "wrongness” of interfering with a woman and her family by denying an abortion depends crucially on whether the fetus at the time of its proposed destruction is a "real" human being or only a "potential” one. As long as this view is so widely held, “[e]very discussion of abortion must, in the final analysis, begin and end with a definition of what one thinks of a human embryo or fetus.” Drinan, supra note 95, at 107; see id. at 122–23. See also Brief of Women for the Unborn at 10, Roe v. Wade, 410 U.S. 113 (1973); Noonan, supra note 90, at 51, 58; Clark, Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Lov. L.A. L. REV. 1, 8-9 (1969).
As if to underscore the point, the Rhode Island General Assembly reacted to Roe by enacting a measure declaring that "human life commences at the instant of conception ...." Senate Bill 73-S287 Substitute A, An Act Relating to Abortion, passed and signed March 13, 1973. See Conley & McKenna, The Supreme Court on Abortion — A Dissenting Opinion, 19 CATH. LAWYER 19, 27 & n.31 (1973). In a straightforward application of Roe, the Court of Appeals for the First Circuit recently declared the statute inoperative. Doe v. Israel, 482 F.2d 156 (Ist
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unable to search for it in secular terms - they could not escape, as long as the decisional role was theirs, from the whirlpool of religious disputation. So it was that Justice Blackmun, writing for the Court in Roe, had to recognize the highly charged and distinctly sectarian religious controversy that the abortion issue had predictably come to stir. 100 That recognition, though not relied upon by the Court for its holding, strongly supports the basic allocation of roles mandated by Roe. For although the fact of heated political controversy alone would hardly be a source of alarm, the “first and most immediate purpose" of the establishment clause was to prevent "a union of government and religion [that] tends to destroy government and to degrade religion.” 101
It is largely for this reason, I believe, that the Court has insisted that "religious organizations ... structure (their) relationships . . . so as not to require the civil courts to resolve ecclesiastical questions,” 102 and that religious motivation has resulted in the invalidation of a law indefensible on any nonreligious ground even though it did not impermissibly aid religion. 103 For
Cir. 1973) (denying stay pending appeal from declaratory judgment of unconstitutionality on ground that stat statute was clearly invalid under Roe).
98 See pp. 19–21 supra. See also N.Y. Times, May 14, 1972, $ 4, at 4, col. 3.
99 See, e.g., N.Y. Times, Jan. 2, 1973, § 1, at 24, cols. 1-3; N.Y. Times, May 11, 1972, § 1, at 40, cols. 3-5. See also San Francisco Chronicle, Aug. 23, 1973, at 22, cols. 4-8; Los Angeles Times, Apr. 28; 1967, at 1, col. 4; id. at 3, col. 4.
410 U.S. at 116, 160-61. See, e.g., The Philadelphia Evening Bulletin, Nov. 21, 1972, at 1, col. 3; cf. United States v. Vuitch, 402 U.S. 62, 78-79 (1971) (Douglas, J., dissenting). As Governor Rockefeller of New York observed in vetoing a repeal of his state's liberalized abortion law: "[T]he extremes of personal vilification and political coercion brought to bear on members of the Legislature raise serious doubts that the votes to repeal the reform ... represented the will of a majority of the people of New York State.” N.Y. Times, May 14, 1972, at 62, col. 3.
101 Engel v. Vitale, 370 U.S. 421, 431 (1962); see Freund, Comment: Public Aid to Parochial Schools, 82 Harv. L. Rev. 1680, 1692 (1969).
For an unconvincing attempt to equate the concern about religious divisiveness in politics with a general concern for the "avoidance of strife,” see Schwartz, supra note 78, at 711.
102 Presbyterian Church v. Mary Elizabeth Church, 393 U.S. 440, 449 (1969); cf. Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94, 120–21 (1952); Watson v. Jones, 80 U.S. (13 Wall.) 679, 728–29 (1871). See also note 108 infra.
103 In Epperson v. Arkansas, 393 U.S. 97 (1968), the Court invalidated as an establishment of religion a statute forbidding the teaching of Darwin's theory of evolution in any public school or university. Unable to hold that a state must teach every subject whose omission would aid some religious group, the Court could not say that eliminating biology from the curriculum altogether, for example, would impermissibly aid fundamentalist Christians who oppose Darwin. Professor Ely therefore seems correct in concluding that, because eliminating the theory of evolution alone aids fundamentalists no more than would the total omission of biology, the law's infirmity had to lie elsewhere, see Ely, Legislative and Admin
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THE SUPREME COURT - FOREWORD
evidence of religious motivation provides a warning that government and religion may have become too “entangled,” and the absence of a secular purpose makes excessive entanglement a definitional certainty.
Proof of excessive entanglement, however, need not turn on the number of legislators who can be shown to have been religiously motivated in voting for or against a given law,104 or on the absence of nonreligious explanations for its provisions. Some such showings might well be required when the constitutional attack is leveled at a particular legislative or other official act.105 But I would argue that a broader establishment clause issue, going to a whole area of governmental regulation, is raised whenever the views of organized religious groups have come to play a pervasive role in an entire subject's legislative consideration for reasons intrinsic to the subject matter as then understood.10
istrative Motivation, supra note 29, at 1318: in its undoubtedly religious motivation, coupled with the absence of any other conceivable reason for the state's curricular excision. Defending the Court's use of motivation on the conventional ground that it merely exposed the law's “real” effects is unpersuasive; as has been noted, curricular omissions no less helpful to the fundamentalists than the one struck down in Epperson could not plausibly be deemed violative of the establishment clause, a conclusion impossible to square with any test making "effect," whether dominant or primary or otherwise, the sole determinant. Nor does it seem wholly satisfactory to rest one's defense of Epperson's use of motivation on Professor Ely's formal "argument by default,” which says, see id. at 1262, 1266, 1273–74, that a forbidden motive must be relevant because nothing else could ever provide an acceptable basis for striking down any particular exercise of a governmental power to make broadly discretionary choices. See Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 SUP. Ct. REV. 95, 140–41 n.215.
104 Cf. Ely, Legislative and Administrative Motivation, supra note 29, at 1267. 105 See id. at 1272–74, 1324-25. But see Brest, supra note 103, at 136–46.
I do not doubt that virtually every normative judgment is potentially traceable to one or more ultimate premises that could be deemed religious. See Ramsey, Reference Points in Deciding about Abortion, in THE MORALITY OF ABORTION 60, 61-62 (J. Noonan ed. 1970). I would thus reject the view suggested by Henkin, Morals and the Constitution: The Sin of Obscenity, 63 COLUM. L. Rev. 391, 402-II (1963), that a society's values can somehow be stacked into two distinct piles, one resting on an empirical base and the other supported "only" by a theological foundation. But some controversies nonetheless come to turn on differing implications from, or divergent visceral reactions to, an accepted body of data and a set of ends and principles so widely shared -- and so “secular” in appearance to render unnecessary the baring of their potentially more controversial religious underpinnings. However religious may be the wellsprings of the view that murder and mutilation are wrong, for example, discussions about public policy in this area can readily avoid open confrontation with controverted religious premises. But a controversy may be so structured in a particular social and historical context that no attempt to resolve it in a public forum can avoid explicit confrontation with the religious differences that ultimately divide the disputants; only such a controversy would trigger the doctrine here suggested.