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The legitimate governmental role recognized by the analysis of this Foreword is that of preventing fetal destruction to the degree consistent with allowing private choice to govern the decision as to fetal separation.131 It was only insofar as the latter decision entailed fetal destruction that an intrinsically religious justification for governmental control proved unavoidable; and so long as the two decisions remain inseparable — that is, until viability -- the governmental purpose of preventing infanticide does not provide a secular rationale for control. For just as the state is unable to distinguish postviability “abortions” from infanticide, so it is unable — within the limits of the secular to treat previability abortions as though they involved the murder

of infants. 132

21

at

159,

(c) Maternal Health. - A third and final justification for a governmental role in the abortion area is that abortion procedures, and occasionally the very fact of an abortion, might some have found to be “incredible,” see Conley & McKenna, supra note 97, at that it “need not resolve the difficult question of when life begins,” 410 U.S.

in order to hold that a state may not, “by adopting one theory of life, override the rights of the pregnant woman that are at stake.” Id. at 162. For in selecting the functional notion of viability as the point after which abortion could be prohibited, the Court needed to make none of the ultimate religious judgments that it properly ruled were beyond government's reach. Though one would hardly wish to compare Roe's uncertain trumpet with the masterful symphony of Marbury v. Madison, 5. U.S. (1 Cranch) 137 (1803), the fact is that Roe, like Marshall's masterpiece, left the Court in “the delightful position . . . of rejecting and assuming power in a single breath,” R. McCLOSKEY, THE AMERICAN SUPREME Court 42 (1960) – of rejecting the power to resolve so religiously charged an issue as that of when life first begins, while exercising the power to deny the authority for its resolution to other governmental institutions as well. See note

137 infra.

131 This formulation implies, among other things, that government should be powerless to interfere with a woman's decision to remove even a viable fetus unless she does so at a time or in a manner significantly reducing the probability of its survival relative to the likelihood that it would survive if delivered normally and at full term. Precisely what follows from this proposition, which may itself be to some degree inconsistent with Roe's holding as to post viability abortions, see 410 U.S. at 163-64, depends on medical data not readily available and raises issues beyond the scope of this Foreword.

132 Of course, if one could demonstrate a significant likelihood that the murder of infants would follow from allowing previability abortions, I do not doubt that legislation predicated on such a danger would be compellingly justified. But available evidence suggests that the posited link could not be established, see S. Bok, supra note 97, at 26–28, and a court should be reluctant to accept the contrary argument without substantial proof, particularly given the risk that religious considerations will have motivated the assertions made. Nor'should any alleged danger of societal “brutalization,” a suspiciously diffuse and amorphous concept unless more precisely delineated, be considered a compelling secular justification. Cf. YWCA v. Kugler, 342 F. Supp. 10481073 (D.N.J. 1972) (general welfare too amorphous to overcome a woman's fundamental right to decide whether to abort).

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seriously threaten the woman's physical or mental health in some definable category of cases.133 Throughout pregnancy, the concern for maternal health obviously justifies some governmental regulation over where, how, and by whom an abortion may be performed; the Court in Roe concedes as much by holding that states may forbid all abortions performed by persons other than licensed physicians.134 The fact that childbirth causes more women to die than do first-trimester abortions obviously does not warrant the Court's conclusion that state controls over firsttrimester abortion procedures must be limited to requiring a licensed physician, or indeed that such controls must be limited to whatever state regulations exist governing medical practice generally.1:

135 For it is conceivable that even very early abortions would in some particular category of cases pose substantial and distinctive risks to maternal life or health unless specified procedures were complied with. So long as procedural requirements defended in terms of health are not used as a subterfuge to forbid early abortions on other grounds, the argument for their imposition by law seems compelling enough to justify their promulgation and enforcement.

Moreover, a state's power to protect people from inflicting serious harm upon themselves might in selected categories of cases justify forbidding abortion altogether. If it could be demonstrated that abortion would threaten the lives or health of a particular group of women much more seriously than would compelled pregnancy and coerced childbirth, it would seem that such abortions could constitutionally be forbidden at any stage of pregnancy. But I am aware of no definable category of cases as to which early abortion is more medically dangerous to the woman than childbirth would be, and I doubt that any such category

exists. 136

3. Justifying the Judicial Role. — In reaching the conclusion

133 Although one must strain to take seriously anti-abortion arguments based on fetal survival or maternal health in view of the "common knowledge that if women cannot obtain (lawful] abortions many (will] subject themselves to the notorious 'backstreet' abortion ... fraught with the myriad possibilities of mutilation, infection, sterility and death,” YWCA v. Kugler, 342 F. Supp. 1048, 1074 (D.N.J. 1972), obvious institutional considerations nonetheless counsel against acceptance of any general principle that a law's frequent violation should contribute to its constitutional downfall. 134 See note 20 supra.

See p. 4 supra. 136 Whether a state could nonetheless delegate to medical experts the discretionary power to identify particular women for whom abortion should be proscribed as excessively dangerous to life or health raises an issue separable from that of government's power to forbid a defined class of abortions and will be discussed at a later point in this Foreword. See pp. 37-38 & note 167 infra.

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that none of the reasons advanced in favor of a governmental role in regulating previability abortions is compelling, a court must overturn the implicit judgment of legislatures, in their role as role-allocators, that the abortion decision should not be entrusted to private choice. But any suggestion that judges should defer to such a determination so as not to “second-guess” the balance it embodies would be misplaced. First, the customary assumption that legislation reflects a balanced weighing of permissible objectives and is thus entitled to judicial deference is brought to the breaking point when the challenged legislation has been shaped in the cauldron of heated religious controversy.137 Second, when the question before a legislature is whether it should permanently and completely relinquish its role in an area that has for a time been part of its jurisdiction, rather than whether it should merely alter its controls or temporarily abandon them,138 the answer comes from a source that cannot act disinterestedly in the mat

ter. 139

No analogous considerations could have been adduced to justify the Court's extraordinary willingness during much of the Lochner era, despite its persistent disclaimers, 140 to substitute its own judgments for those of legislatures on such purely empirical questions as the probable health effects of working at a certain occupation for a given number of hours.141 A court pursuing a

137 The Court too may obviously be subjected to religious pressures in considering an issue like abortion, but all judgments under the religion clauses inherently have that character. Unless those clauses are to become uniquely unenforceable through judicial review, this objection cannot be deemed fatal. Deciding whether an area is religiously entangled and what constitutes an adequate secular justification are inescapable judicial tasks. See Mansfield, Book Review, 52 CALIF. L. Rey. 212, 216 (1964). It would nonetheless be impermissible for the judiciary to resolve an intrinsically religious question on nonsecular grounds. See cases cited note 102 supra. See also note 130 supra.

138 Note that most of the constitutional arguments against a governmental role would be satisfied only by a complete withdrawal of legislative jurisdiction. In particular, the fear of recurring religious intrusion into politics calls for more than a lifting of constraints on abortion under circumstances leaving the legislature vulnerable to pressure for their renewed imposition; and the concern for assuring the role of women as equals, see pp. 39–41 infra, can be fully met only if withdrawal of state controls over abortion is perceived as an affirmation of basic rights rather than as a prudential concession that might be reversed later. Cf. Tribe, Policy Science: Analysis or Ideology?, 2 PHIL. & PUB. AFF. 66, 87-89 & nn.54, 56 (1972).

139 Constituent pressures, and an inevitable disinclination to foreclose one's own options, might be expected to operate here almost as powerfully as an unwillingness to apportion oneself out of office no doubt operates in that sphere of judicial review. See Baker v. Carr, 369 U.S. 186 (1962). See also Lewis, Legislative Apportionment and the Federal Courts, 71 Harv. L. Rev. 1057 (1958).

See, e.g., Lochner v. New York, 198 U.S. 45, 56-57 (1905). 141 See, e.g., Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 519–20, 533–34

140

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mode of adjudication more alert to questions of roles and their proper allocation could hardly have failed to perceive its obligation to explain the role it assumed in producing such factual edicts. In contrast, the judiciary's function in confining a legislature's claims as to the reach of its own role is altogether traditional and leaves little mystery as to the institutional propriety of a conclusion that previability abortion decisions lie beyond the legislature's lawful grasp.

4. Toward a Personal Question Doctrine. — The first amendment concern for religious-political disentanglement thus provides a general frame of reference which, in the setting of the contemporary social experience with abortion, indicates that defining and applying the criteria for permissible abortion should not be a governmental function before viability. Just as one can regard the delegation doctrine as resting on the principle that certain categories of decisions ought to be made by politically accountable bodies rather than by wholly unaccountable decisionmakers, 142 and just as one can understand the political question doctrine as reflecting the notion that some sorts of decisions ought to be "unprincipled on principle” and hence should be remanded to a political discretion unchecked by judicial review,143 so too the conclusions thus far reached might be expressed as a “personal question" doctrine - a doctrine embodying the concept that some types of choices ought to be remanded, on principle, to private decisionmakers unchecked by substantive governmental control.144

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(1924) (Brandeis, J., dissenting); Pollock, The New York Labour Law and the Fourteenth Amendment, 21 L.Q. Rev. 211, 212–13 (1905). Nor does the particularistic "interest-balancing" surface of Roe suggest, as a role-allocation analysis could, any basis for the Court's failure to defer to the legislatively struck balance in that case. See also note 25 supra.

142 See A. BICKEL, THE LEAST DANGEROUS BRANCH 181 (1962); cf. Columbia Broadcasting Sys. v. Democratic Nat'l Comm., 93 S. Ct. 2080, 2087-90 (1973); McGautha v. California, 402 U.S. 183, 287 (1971) (Brennan, J., dissenting). See generally Leary v. United States, 395 U.S. 6 (1969) (if Congress wishes to make mere possession of narcotics a crime, it must do so explicitly and cannot employ attenuated presumptions to circumvent that obligation).

143 See Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265, 1302–03. (1961).

144 Cf. Application of President & Directors of Georgetown College, 331 F.2d 1010, 1015 (D.C. Cir. 1964) (Burger, J., dissenting), cert. denied, 377 U.S. 978 (1964). See also the recent suggestion by some of Roe's critics that the Court should have declared "when life begins” to be a political question, Conley & McKenna, supra note 97, at 21, which would of course have triggered all the problems of entanglement discussed in this Foreword.

Completeness requires one to note that, if governmental power to decide which abortions in early pregnancy are permissible leads to dangerously divisive religious involvement, then the solution I have inferred from the Constitution is but one

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C. The Protected Role of Private Choice: Group and

Individual Rights The next task is to consider whether the Constitution can offer any significant guidance at the second level of role allocation, the level which asks what group or individual outside government should be empowered to make the decision in question.

A role analysis indicating that a choice should be left in the private domain will occasionally point directly to certain groups as the preferred decisionmakers, as in the case of decisions about a private association's internal structure. Occasionally the analysis will point directly to individuals, as in the case of suffrage. At times, although the articulation of group rights will help in the initial identification of where a power of choice should be located, a focus on individual rights will ultimately carry the analysis a step further, as the case of abortion will illustrate.145 of two equally logical responses. The other would be for the Court to hold that the Constitution itself settles the precise conditions under which abortion is permissible. But the problems with any such solution seem insurmountable. First, it would demand substantial loosening of the state action requirement for the Court to hold that the Constitution either compels or forbids the private taking of a fetal life without any affirmative involvement by the state. But see 410 U.S. at 157 & 157-58 n.54. Second, even if the state action problem were overcome, and even if one could properly regard the fetus from the beginning of pregnancy as a “person” within the meaning of the fourteenth amendment, see 410 U.S. at 157, all that would follow is that “one right granted special protection by the Fourteenth Amendment was in conflict with what the Court felt was another; it would not tell us which must prevail.” Ely 926 n.48; see note 86 supra.

One context in which it might nonetheless be constitutionally relevant to decide whether a fetus is a “person” for fourteenth amendment purposes would be an equal protection challenge arguing that, by outlawing infanticide but not abortion, a state deprives fetuses of the equal protection of its laws, protection to which only "persons” are entitled under the fourteenth amendment. See, e.g., Louisell & Noonan 246–47. As to nonviable fetuses, the state's response would presumably be that, even if they were deemed to be persons, there are compelling justifications for giving them less protection than infants; among other things, their destruction can be prevented only at the cost of a vastly greater imposition on other persons (i.e., the women who carry them) than is required for the protection of infants. Cf. Thomson, supra note 86. With respect to viable fetuses, however, no parallel distinction would be available. See note 24 supra. But see note 118 supra.

The establishment clause doctrine developed in the preceding section does not fully resolve the allocation problem at this level since neither logic nor experience strongly suggests that the legislative consideration of how to allocate private decisional roles with respect to abortion would be pervaded by intrinsically religious controversy of the sort that arises when the basic permissibility of abortion is considered. Cf. note 182 infra.

Moreover, some possible decisional arrangements may arise without any affirmative involvement whatsoever by the state in the allocation of roles and hence will fall outside the reach of constitutional limitations on governmental action, although others will require such involvement and will thus be subject to whatever limita

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