34 HARVARD LAW REVIEW [Vol. 87:1 1. Associational Integrity: The Role of the Family. The most promising source of relevant doctrine in this context is the first amendment. The rights secured by its several guarantees are sometimes assimilated to an atomistic conception of rightsholders as "independent centers of consciousness, each pursuing its own gratification and confronting the others as beings standing-over-against the self." 146 But just as rights of privacy can be understood as contexts for intimacy and sharing rather than as charters of isolation,147 so too a central mission of the first amendment can be perceived as the fostering of communities and associations characterized by shared understandings and values. Although the amendment speaks of "assembly" rather than "association," the Court has long regarded the first amendment and its fourteenth amendment due process embodiment as protecting from governmental intrusion the integrity and vitality of human association generally.148 No doubt one of the most basic forms of human association in our society is the family, and the idea of "family" as the most powerful and intimate center of human feeling and trust runs through a long series of familiar constitutional decisions. The tions the Constitution is held to impose upon the permissible range of role allocations in this area. For example, if the medical profession were to arrive at a universal understanding that it is unethical to accept money in return for performing an abortion, so that the only abortions would be those that a doctor wished to perform as a "public service," current doctrines of state action might well fail to make the state responsible for the resulting allocation of decisional power even if a state agency with the statutory authority to do otherwise had expressly refused to overturn the medical policy described. Cf. Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 93 S. Ct. 2080, 2095 (1973), noted p. 175 infra. But see Public Util. Comm'n v. Pollak, 343 U.S. 451 (1952). On the other hand, if a woman seeks an abortion that a licensed physician would have given her but for the interposition of a state rule conferring a veto power upon some other person or institution, it seems clear under current doctrine that the state's action in enforcing or threatening to enforce the rule would be deemed responsible for denial of the abortion. Cf. Shelly v. Kraemer, 334 U.S. 1 (1948). 146 R. WOLFF, POVERTY OF LIBERALISM 142 (1968). 147 Compare C. FRIED, AN ANATOMY OF VALUES 137-52 (1970), with Miller, Privacy in the Corporate State, 22 J. PUB. L. 3 (1973). 148 See, e.g., Healy v. James, 408 U.S. 169 (1972); BRT v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 5–6 (1964); NAACP v. Button, 371 U.S. 415, 429-31 (1963); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958). However, for fragmentary indications that the Court might limit special associational protections to relatively traditional human groupings, see Wisconsin v. Yoder, 406 U.S. 205, 215-16, 235 (1972); Griswold v. Connecticut, 381 U.S. 479, 486 (1965). For hints that less conventional living arrangements might be equally protected, see United States Dep't of Agriculture v. Moreno, 93 S. Ct. 2821, 2826 & n.7, 2828-31 (1973), discussed at note 223 infra; Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). 1973] THE SUPREME COURT - FOREWORD 35 149 Court has insisted that parents have the right, free from state interference, to enable their children to learn a foreign language; to send their children to a private school; 150 or to withdraw them from school altogether for religious reasons after they have acquired a basic education 151 - thus affirming repeatedly a "private realm of family life which the state cannot enter.” 152 The central place of marriage in our constitutional scheme has likewise been stressed — from the Court's emphasis on marital privacy 153 and its holding that due process and equal protection both preclude a state prohibition against interracial marriage, 154 to its conclusion that the marital relationship is so basic that the state cannot deny a divorce to a person who is unable to afford the required court fees.155 how recognition can be given to the rights previously accorded to home establishment, rearing and education of children,' without acknowledging the impressive sociological, economic and educational effect that family size has upon these considerations. A decision to bear a child [and] hence to add to the family unit, inevitably affects all facets of family life and each and every member of the family. Particularly if one views "rights" as elements of human roles and relations,157 the right "to determine the scope, dimension and extent of [one's] family unit" 158-a family's knowledge that it is empowered to settle its own composition seems altogether 159 149 Meyer v. Nebraska, 262 U.S. 390 (1923). 154 Loving v. Virginia, 388 U.S. 1, 12 (1967). 155 Boddie v. Connecticut, 401 U.S. 371 (1971), discussed at pp. 45-46 infra. 156 YWCA v. Kugler, 342 F. Supp. 1048, 1081 (D.N.J. 1972) (Garth, J., concurring in part and dissenting in part). 157 See Tribe, Policy Science, supra note 138, at 85–93. 158 YWCA v. Kugler, 342 F. Supp. 1048, 1081 (D.N.J. 1972) (Garth, J., concurring in part and dissenting in part). 159 The word "composition" is chosen deliberately, for any notion that the only associational right of the family is a right to determine its own size without regard to the major characteristics of its members, see Louisell & Noonan 234-35; Stone, Abortion and the Supreme Court: What Now?, in MODERN MEDICINE, Apr. 30, 1973, at 32, 37, seems questionable. In this connection, thinking in "freedom of association" terms may be illuminating: the role of choosing one's associates implies some voice in deciding who they are as well as how many of them one will have. Just so, the family's capacity to define itself as a group could be greatly eroded by having to raise certain severely disabled babies, perhaps causing existing children to be neglected or future children to be precluded altogether. Until pregnancy has advanced so far that the state itself can permissibly decide to 36 HARVARD LAW REVIEW [Vol. 87:1 indispensable.160 This right to family self-definition is on its face incompatible with conferring upon any outsider a decisional role in the abortion choice.161 As with other first amendment rights and roles, however, this one may be compromised by compelling justifications for allocating the role in question in a different way.162 But, as I have tried protect the fetus from abortion, a concern for the family's associational integrity thus cannot be limited to considerations of size. 160 See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). The Court may have had in mind an associational concept something like the one developed here when it sought to distinguish the commercial dissemination of obscenity to consenting adults, which it held essentially unprotected under the first and fourteenth amendments, from the activities protected by Roe and by Griswold v. Connecticut, 381 U.S. 479 (1965). As the Court put it in Paris Adult Theatre I v. Slaton, 93 S. Ct. 2628, 2640 n.13 (1973) (emphasis added), "the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is . . . concerned with... a protected intimate relationship . . . [and] extends to the doctor's office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved." An emphasis on intimacy would seem to imply that the relevant family is the one in which the woman seeking an abortion has the role of mother, wife, or lover rather than the one in which she has the role of child. Among the questions left open in Roe, however, was whether a parent can be empowered to prevent an abortion requested by an unmarried minor child. See 410 U.S. at 165 n.67. For a negative answer relying on statutory grounds, see Ballard v. Anderson, 4 Cal. 3d 873, 484 P.2d 1345, 95 Cal. Rptr. 1 (1971) (en banc); for a similar answer grounded in due process, see Coe v. Gerstein, Civil No. 72-1842 (S.D. Fla., Aug. 9, 1973) (state cannot delegate to parents or husbands an authority it does not possess). I would hope that, in ultimately resolving both this issue and its converse - whether a parent can force abortion upon an unmarried minor child, see In re Smith, 16 Md. App. 209, 295 A.2d 238 (Md. Ct. Spec. App. 1972) — the Court will display more sensitivity to the independent rights of the child than is suggested by Meyer v. Nebraska, 262 U.S. 390 (1923), or Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (stressing parents' interests while conspicuously overlooking the claimed rights of the children involved, see id. at 515, 518, 532). See Wisconsin v. Yoder, 406 U.S. 205, 245-46 (Douglas, J., dissenting). 161 To suppose that contraception by itself can preserve the right to family selfdefinition, see Louisell & Noonan 234-35; cf. Stone, supra note 159, at 36, assumes that contraception efforts never fail and overlooks the potential relevance of such changed family circumstances as separation, illness, and economic collapse during pregnancy. Moreover, to suppose that giving up a child for adoption can save a family from unwanted parenthood ignores the cultural and psychological pressures that make it difficult to abandon one's offspring as well as the legal constraints society imposes upon such a choice. Thus, to say that an outsider's veto over a family's abortion choices would not affect its capacity for self-definition overlooks the realities both before pregnancy begins and after it ends. 162 Indeed, it would have been possible to begin the role analysis by observing that interference with a family's abortion choices infringes upon associational rights in a manner requiring compelling justification. Cf. note 83 supra. Such a justification would have been found in the avoidance of infanticide. But the necessity of defining infanticide would have posed problems under the entanglement doctrine developed above, until the point of viability provided a secular 1973] THE SUPREME COURT - FOREWORD 37 to show, the state itself — for reasons independent of the family's rights of association cannot constitutionally control the previability abortion choice. Thus, in order to be legitimate in this context, any argument in favor of conferring veto power on someone outside the family must be based not on any substantive concern about which pregnancies should be terminated, but on rolespecific reasons for preferring a decisionmaker outside the family to one within.1 But the only imaginable reasons for such a preference would entail a belief that the family is too profoundly affected by the choice, or too inexpert in the factors relevant to a sound judgment, to be as capable a decisionmaker as a less personally interested and more expert outsider would be. 163 To be sure, there is much in the Court's opinions in Roe v. Wade and Doe v. Bolton that can be read to suggest a desire to make the ultimate decision that of a medical expert.164 And much of the early pressure for liberalized abortion laws was grounded in a desire "to preserve the dignity, rights, and freedom of action of the medical profession." 165 But any notion that the doctor, or some other disinterested expert, is in a better position than the woman and her family, by virtue of such disinterest and expertise, not only to provide advice and consultation but also to make the final choice with respect to whether the family should have and raise a child,166 amounts to nothing more than a denial of the underlying first amendment premise that groups should ordinarily have the role of making their own ultimate associational choices, informed and perhaps influenced, but not forced, by others.167 touchstone. In general, pursuing the model of roles along several different paths, and testing the consistency of the results derived, should furnish a partial check against the model's erroneous application. 163 After viability, the state's power to prevent fetal destruction, see pp. 28-29 supra, could presumably be delegated subject to appropriate restrictions. See p. 32 & note 142 supra, p. 40 & note 178 infra. 164 Justice Blackmun's opinion for the Court in Roe flatly states that until the end of the first trimester "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician," 410 U.S. at 164, and insists that, up to the point of viability, "the abortion decision in all its aspects is inherently, and primarily, a medical decision.” Id. at 166. Writing for the Court in Doe, Justice Blackmun likewise places the medical practitioner at the center of his opinion. There, the Court holds that a requirement of committee approval not only is "unduly restrictive of the patient's rights and needs," id. at 198, but also impermissibly limits “the physician's right to administer" the care his best judgment directs, id. at 197, and that "required acquiescence by copractitioners has no rational connection with the patient's needs and unduly infringes on the physician's right to practice." Id. at 199. 165 Finnis, Three Schemes of Regulation, in THE MORALITY OF ABORTION 172, 188 (J. Noonan ed. 1970). 166 Cf. notes 128, 161 supra. 167 There may, of course, be rare instances in which the doctor's view (1) rests 38 HARVARD LAW REVIEW [Vol. 87:1 There seems, therefore, to be no escape from the conclusion that, as to previability abortions, the associational integrity protected by the first and fourteenth amendments precludes forcing an unwanted child upon a family on the ground that the doctor, or anyone else, "knows best." >> 168 2. Individual Autonomy: The Role of the Woman. — Unlike the opinion of the Court, that of Justice Stewart unambiguously identifies the right protected by Roe as "the right of a woman to decide whether or not to terminate her pregnancy." 169 In some instances, the conclusion that the right belongs within the family takes the analysis as far as Justice Stewart's opinion would go." But both the Court's opinion in Roe and the analysis thus far pursued in this Foreword leave open the question of whose wish must prevail if there is disagreement within the family. Even here, the Constitution provides relevant guidance. 171 170 on a reasonable and truly expert medical judgment to the effect that (2) abortion would cause the woman serious physiological or psychological damage (3) substantially exceeding the damage likely to be inflicted by the coerced carrying, delivery, and upbringing of an unwanted child, where (4) the woman cannot be persuaded to follow the doctor's advice, and in which (5) the state cannot itself proscribe abortion inasmuch as the fetus is not yet viable, but where (6) the doctor would, if empowered to do so, override the wishes of the woman and her family. But to allocate veto power to doctors in order to accommodate this remarkably unlikely combination of circumstances would be to confer upon the medical profession a penumbral authority so wide and unaccountable, and so inherently unconfinable to the precise conditions thought to warrant it, as to engulf the family's rights of association in return for the most marginal of gains. Cf. p. 30 supra. 188 Nor should the Court's decision to cast Roe and Doe in medico-technocratic terms be thought to undermine a reading of those cases as ensuring that the abortion decision is to be an intrafamily one. Given the Court's holding that a state cannot require first-trimester abortions to be performed in a hospital, Doe v. Bolton, 410 U.S. 179, 195 (1973), and given the reality that the freestanding abortion clinics thereby authorized will almost surely regard the family's or woman's own decision as dispositive, see Stone, supra note 159, at 36, the Court is unlikely to have intended any real medical veto over the choice to abort. Moreover, the Court makes clear that even the "medical judgment" called for "may be exercised in the light of all factors- physical, emotional, psychological, familial, and the woman's age relevant to the well-being of the patient." Doe v. Bolton, supra, at 192. Perhaps the Court simply believed that the public acceptability of its result would be enhanced if it couched the abortion holding in medical rather than ethical terms. Or perhaps the language chosen reflects little beyond the medical interests and associations of particular Justices. In no event does the medical terminology alter the substantive result. 169 410 U.S. at 170. 170 Examples would include those cases in which the woman has no family, or where no one in her family will take issue with her decision, or where the family comes to a choice by a group process that arrives at a truly shared position. 171 See 410 U.S. at 165 n.67. 57-782 O 76 - 22 |