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evil in such a situation need not lie in the particular statutes or amendments that emerge from so religiously charged a milieu, 107 but in the continual pressures to which the milieu itself subjects lawmakers as long as they retain a decisionmaking role. Whenever this evil can be demonstrated, all substantive governmental controls within the "entangled zone" could quite plausibly be deemed tainted, and hence unconstitutional, in the absence of an affirmative demonstration that a particular control is needed to serve a compelling purpose that can be defined, and defended as applicable, in terms generally regarded to be wholly secular.108
The proposed doctrine would not suggest, however, that all legislation is void whenever various religious groups have exerted powerful and discordant political pressure on state and national legislatures.109 Indeed, if the constitutionality of legislation were to turn entirely on the identity of the lobbyists and the intensity of their activity, there would be a serious danger of manipulative efforts, with various religious groups feeling impelled or enticed by the test either to conceal or to feign interest in an area of legislative activity or inaction.
Instead, the theory suggested here would find excessive en
107 As a theoretical matter, it might be possible to identify selected jurisdictions where the religious milieu is such as to reduce greatly the entanglement risks attendant upon making the role a governmental one, even when pressures exerted indirectly by groups in other jurisdictions are taken into account. Cf. Wedlock & Jasper, Parochaid and the First Amendment: Past, Present and Future, 2 J.L. & EDUCATION 377, 394 (1973). But virtually the only effect of allowing government to retain control in these few jurisdictions would be the imposition of restraints on the disadvantaged, immobile groups within such jurisdictions.
Cf. Ellington, The Principle of Nondivisiveness and the Constitutionality of Public Aid to Parochial Schools, 5 GA. L. Rev. 429, 447, 453-54 (1971). Although the test proposed here is somewhat novel, it is not without precedent. On the contrary, it was partly on the basis of an analogous theory that the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), struck down state salary supplements for parochial school employees. Although the plan invalidated in Lemon was designed to ensure purely secular use of state funds, the Court thought that its administration would have aggravated the "potential for political divisiveness related to religious practice.” Id. at 623. And this Term, in Committee for Pub. Educ. v. Nyquist, 93 S. Ct. 2955 (1973), the Court invalidated an aid program containing tuition grants and tax relief provisions requiring no administrative intrusion of state power into religious activity. In partial support of its decision, the Court stressed the prospect of "serious divisive political consequences” arising out of "the pressure for frequent enlargement of the relief” and the disputes over "the deeply emotional (issue) of Church-State relationships” that such pressure would inevitably generate. Id. at 2977-78.
A quite different entanglement theory from the one suggested in the text focuses on governmental interference with religious autonomy. See, e.g., Lemon, supra, at 621-22; Waltz v. Tax Comm'n, 397 U.S. 664, 672, 674 (1970).
109 Cf. Choper, The Establishment Clause and Aid to Parochial Schools, 56 CALIF. L. Rev. 260, 273 (1968).
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tanglement only when the involvement of religious groups in the political process surrounding a subject of governmental control is convincingly traceable, as it is in the case of abortion, to an intrinsic aspect of the subject itself in the intellectual and social history of the period.110 And the theory would in no event support a conclusion that religious entanglement alone requires the invalidation of a legal control for which a compelling need can be plausibly demonstrated by "ways of reasoning acceptable to all” 111 from wholly secular premises, premises resting on a common knowledge and understanding of the world." 112
Forbidding the destruction of living human beings, the proposed justification with which the analysis in this section began, states a compelling secular purpose, but not one whose connection with the destruction of fetal “life” can be established in any wholly secular way. Thus, given the problem of religious entanglement, any justification for a governmental role in the abortion decision must be grounded in some other compelling secular objective.
2. Secular Justifications: Potential Life, Infanticide, and Maternal Health. — Three secular purposes may be advanced to justify a governmental role in prohibiting various categories of abortions notwithstanding the risks of religious entanglement.
(a) Potential Life. -- Although the Court in Roe considered what it termed the state's "interest” in protecting "potential
110 The "intrinsicality” requirement here stated includes two separate elements. First, contemporary social attitudes and conditions must be such that legislatures exercising a decisional role in the disputed area are forced to focus on a particular question - in the abortion context, that of when life begins. See notes 97-99 supra. Second, the resolution of that question must turn on controversial religious judgments. Cf. note 106 supra. When these two elements are present, and when no compelling secular justification appears, any fear that the entanglement test will be overly broad or unduly manipulable seems most unrealistic. Moreover, the presence of a compelling secular justification should itself cast doubt on whether the first element of the test has in fact been met.
111 J. Rawls, A THEORY OF JUSTICE 213 (1971).
112 Id. Nor could the proposed test support a conclusion that government must withdraw from any area as broad as the raising and allocation of public resources, the structure and functioning of public services like education, or the creation of the basic ground rules facilitating private transactions and personal associations areas which are generally deemed indispensable to government's fulfillment of its basic role, and which are in any event too sweeping in the range and depth of their effects to permit any claim that religion had become pervasive throughout their reach. The proposed test is thus such a narrow one that few areas of legislative control seem likely ever to be struck down by it. But other elements of first amendment doctrine, see, e.g., p. 15 supra, will probably prove decisive with greater frequency than religious entanglement in deciding that a role is barred to government. Testing these hypotheses in specific areas outside abortion should prove instructive but is beyond the scope of this Foreword.
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life," 113 it did not focus on the argument, obviously inescapable from a role-allocation perspective, that the directly involved woman and her family are in a worse position to weigh the interests bearing on potential human life, which all agree the fetus represents, than is the relatively disinterested government. If the state's only burden were that of providing some plausible account of how its controls might advance a legitimate goal, the argument being considered at this point could well suffice. But although the analysis of this Foreword began by ascribing to government no heavier burden than that,114 the religiously entangled character of the process triggered by state authority to control abortion choices yields an unusually heavy burden of justification, and one can hardly characterize as compelling" the argument that government is in a better position than the woman and her family to decide whether one more life should be brought into the world. Nor can the "potential life" argument as such come to anything more than that; for any attempt to link it with arguments that rely on what the fetus already is, as opposed to what it has the potential to become, would obviously fail to provide a wholly secular justification for governmental intrusion.
To accept the "potential life" interest as compelling in this context, therefore, would be to say that the values supposedly served by a more "detached” determination of the pros and cons of creating an additional future life overcome those implicit in the constitutional condemnation of church-state entanglement. But allowing this incremental gain in disinterestedness to outweigh the religion clauses of the first amendment would be difficult to reconcile with their central place in our scheme of government."
(6) Infanticide. - I suggested earlier that the evolution of science led to a concept of fetal development too continuous to support any identification of a particular point in such development as intrinsically marking the start of human life. 116 It was for this reason that arguments advancing fetal humanity as the
410 U.S. at 150, 159, 162–63. 114 See pp. 16-17 supra.
115 The attribution of significance to this increment itself bears troublesome overtones of a religious character. Whether or not those overtones are deemed significant, a court deciding that the state's alleged ability to consider disinterestedly the arguments for one more potential life does not constitute a compelling secular justification for religiously entangled state control over early abortion would obviously have in some sense to "balance" the values involved. But the exercise of judgment which this balancing process requires seems the irreducible minimum if courts are to perform anything beyond a purely formal judicial task, and is distinguishable from judicially postulating a fixed set of permissible and prohibited ends. See pp. 12–13 & notes 69, 70 supra; cf. YWCA v. Kugler, 342 F. Supp. 1048, 1074 (D.N.J. 1972) (interest in population growth cannot override right to early abortion). But see Lee, supra note 25, at 472.
116 See pp. 19–20 supra.
THE SUPREME COURT - FOREWORD
basis for a governmental prohibition of abortion necessarily involved the entanglement of religion with politics. But there exists a middle ground between attempting to rely solely on the potentiality of life and seeking to locate human life itself in some intrinsic aspect of embryonic or fetal growth. One can instead focus, as the Court ultimately did, on the extrinsic criterion of viability, which asks whether, given current technology, the fetus could "live outside the mother's womb, albeit with artificial aid.” 117 Once the fetus can be severed from the woman by a process which enables it to survive, leaving the abortion decision to private choice would confer not only a right to remove an unwanted fetus from one's body, but also an entirely separate right to ensure its death.
Apart from the problematic character of any claim in behalf of the latter right,118 its recognition and enforcement would be indistinguishable from recognizing and enforcing a right to commit infanticide, a crime nowhere mentioned by the Court in Roe. For the viable fetus may be removed in precisely the same way in late pregnancy — whether surgically or by chemically induced labor — regardless of one's intentions as to its ultimate survival.119 A premature birth followed by the deliberate killing of what the doctor had removed or delivered would look and sound the same whether the intent to kill had been formed only after the birth was completed or had been present throughout the episode. 120 To call the first of these acts "infanticide” and the second "abortion” or even “feticide” is to play with names that bespeak no relevant difference. 122
Viability thus marks a point after which a secular state could properly conclude that permitting abortion would be tantamount
ta ing Jus of of jus
410 U.S. at 160 (footnote omitted). Presumably the Court contemplated "artificial aid” reasonably available in light of contemporary technology.
118 See note 24 supra. This treatment of the claim assumes a technology in which viability occurs so late in pregnancy that removing the fetus in a manner consistent with its survival is no more onerous for the woman than removing it in a way that leads to its destruction. If this ceases to be the case, however, then the woman's legitimate interest may come to encompass a claim to sever even the viable fetus in a manner dangerous to it. That technological developments bringing about such a situation might alter one's constitutional conclusions merely reflects a Constitution capable of adaptation over time. See note 13 supra; cf. Katz v. United States, 389 U.S. 347, 352-53 (1967); id. at 360–62 (Harlan, J., concurring). Indeed, the very fact of religious entanglement is itself historically contingent and would not persist if the relevant social attitudes were to change radically. Cf. notes 97, 106, 110 supra. See also note 127 infra. 119 See note 24 supra.
° Nor is the substance of the argument altered if the process of removal itself is calculated to kill.
Cf. note 24 supra. 122 Nobel Laureate James Watson is reported to have "urged that doctors attending the birth of laboratory-conceived human beings be given the right to
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to permitting murder,123 not because of some illusion that this biologically arbitrary point signals "any morally significant change in the developing human," 124 and certainly not because of any (necessarily religious) notion that the fetus is intrinsically a human being from that technology-dependent point forward, 124 but rather on the secular and quite practical ground 126 that a state wishing to prevent the killing of infants simply has no way to distinguish the deliberate destruction of the latter from what is involved in postviability abortions. 127 It is not only that such abortions lie close to infanticide, and hence not far from other horrors along the "slippery slope," but rather that, in every functional sense, they occupy the same place on that fabled plane.128
Earlier, I criticized the Court in Roe for its essentially unexplained identification of viability as the point at which the state's interest in protecting potential life becomes "compelling." 129 But the preceding discussion might reflect precisely what Justice Blackmun had in mind when he said that, given the ability of a viable fetus to live outside the womb, "regulation protective of fetal life after viability . . . has both logical and biological justifications.” 130
terminate the lives of the infants if they are grossly abnormal.” TIME, May 28, 1973, at 104. Noting that “most birth defects are not discovered until birth,” Watson suggests that “[i]f a child were not declared alive until three days after birth, then all parents could be allowed the choice that only a few are given under the present system,” Watson, Children From the Laboratory, Prism, May 1973, at 12, 13, as though this verbal change could somehow alter the moral reality of what he proposes.
123 The same considerations that support a finding of "compelling secular justification” at viability might also support a conclusion that the abortion decision is not even intrinsically entangled by religion beyond that point. See note 110 supra. 124 Tooley, Abortion and Infanticide, 2 Phil. & PUB. AFF. 37, 38 (1972).
Cf. note 18 supra. 126 See note 106 supra.
127 This argument assumes again, cf. note 118 supra, that viability occurs late enough in pregnancy so that a spontaneous premature delivery of a live fetus at that point, for example, would be generally regarded as the "birth of a child.” If viability is pushed into very early pregnancy, the distinction said in text to be impossible to make may become more plausible.
128 The inability to distinguish postviability feticide from infanticide, and hence the state's power to prohibit both, may entail serious hardships for the woman or family involved. Insofar as the state might forbid, or fail to facilitate, adoption of the resulting child, the psychological and economic burdens of parenthood may be considerable. But our society does not regard killing as an acceptable remedy. See 410 U.S. at 153, 163-65 (despite burdens of caring for unwanted child, state may prohibit postviability abortion. But cf. note 24 supra.). 129 See p. 4 supra.
410 U.S. at 163. Thus the Court proved correct in its assertion — which