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Professor Tribe. I will simply try to summarize the major arguments as I see them. I expected to be testifying this morning on constitutional amendments to overturn the Supreme Court's abortion decision. When I received the actual text of the amendments proposed by Senators Buckley and Helms, I was therefore surprised that they quite clearly would not do that, and in this respect Professor Ely and I are in agreement. The reason can be quite simply summarized. Basically, what these amendments seek to do, is to de termine as a matter of Federal constitutional law that fetuses are persons from the moment of conception and that no government may therefore deny them due process or equal protection.
But if anything is clear about the abortion controversy, it seems to me one thing is. That no amount of constitutional redefinition of fetuses as persons can alter the biological reality that they are persons of a rather special sort-persons that in the early phase of their development cannot survive without using the body of someone else.
And that, of course, is the source of the entire constitutional controversy surrounding abortion. It was the Court's conclusion that the dependence of the fetus on the woman prior to viability--prior to the time the fetus could survive independently-makes it not only reasonable, but mandatory, that the ultimate choice whether or not to continue the pregnancy should be the woman's. And in no way does that conclusion rest on an argument about the personhood of the fetus. That is, one could easily conclude, with these amendments, that the fetus is a human being, a full person from the moment of conception, and still say that to deny such a person protection from the woman's choice until the point of viability is a reasonable policy, entirely consistent with due process and equal protection.
And so, as I read the text of these amendments, the upshot is that they would not achieve their intended result. They would confuse the law, leaving it rather obscure. They might have some unpredictable consequences, but it would take an extremely strained reading of these amendments to use them as I think they were intended to be used.
Now, that leads me to what I take to be a rather fundamental question-namely: Why? Why is it that amendments carefully drafted to overturn a much controverted decision of the Supreme Court would not in fact have that effect?
I take it the reason was not stpidity. Nor wat it laziness on the part of the draftsmen. It seems to me that the only plausible reason is that the underlying issue is too intensely personal, too highly controversial, and too religiously divisive, to lead to any successful public formula for its resolution at this point in our history. It is for that reason, I suspect, that one finds the rather vague and general language of these amendments as some sort of compromise which in the end I think misfired,
But those considerations--the intense controversy, and the inescapable involvement of religious views on the profoundly difficult
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and troublesome moral question of when abortion is or is not permissible—those are traditional reasons under our constitutional law for regarding an area as an inappropriate one for governmental decision.
The first amendment, which I take it these resolutions do not seek to undo, mandates the separation of church and state. And one of the deepest values involved in that separation is the decision that intensely personal, religiously divisive decisions, ought to be made not by government, but by private individuals in the context of the family and of the intimate human group,
It is for that reason, as I have argued at much greater length in the article published on the subject last year, that Roe v. Wade, the Supreme Court's decision delegating these areas of choice to the woman and her family, is constitutionally defensible.
But what emerges is the rather paradoxical conclusion that, however proper it may ordinarily be to try to overturn a Supreme Court decision by constitutional amendment, here the very facts that make the decision a defensible one also make it implausible that an amendment could successfully solve the problem by generating any kind of public consensus.
Now that does bring one to the question: What is there about the Court's decision that makes it defensible? Why is Professor Noonan, wrong in my view, in characterizing Roe v. Wade as a decision in which the Supreme Court somehow unmade human beings?
It seems to me there are two basic reasons for not viewing the decision that way. The first I have already touched on: It is the intrinsic involvement of religion in the controversy.
Now, by no means would I want to suggest that it is wrong for religious groups to take public stands. What I suggesting is that the desirability of separating church and state argues strongly for getting the state out of the business of regulating areas which have become so powerfully divisive in religious terms that there remains no way of resolving them by appealing to generally shared secular agreements.
The ultimate conclusion, then, is that the decision is not for government, but for the family, for the woman, for her doctor, for those in the intimate group that are likely to be most deeply affected by the decision. At that level in terms of traditional constitutional doctrine, as my coleague, Professor Heymann will suggest—it is simply wrong to see Roe v. Wade as a major departure from precedent.
Although I did not want to talk very much about the aspect of family, I cannot resist some comments on Professor Noonan's testimony in that regard, because what he had to say seems to me most striking.
He said that one of the effects of this decision, one of the reasons for amending our most fundamental law to overturn it-although, as I have said, the proposed amendments might well not have that effect —is that the Supreme Court, in Roe v. Wade, destroyed the family by bringing about a situation where the father no longer has a protectable, legal interest in his offspring.
Now, we lawyers sometimes tend to use our own forms of jargon to make an argument which, when removed from its legal trappings, has a rather different sound. What is Professor Noonan's "protectable legal right" of the father?
I assume what Professor Noonan is talking about is that the decision has the disastrous etfeet of prevening the father from going to court to prevent his wife from having an abortion-to force her, that is, to carrying a child through pregnancy to full term.
Now, I find it remarkable that anybody could equate the values of family autonomy and harmony with this scenario of a lawsuit in which the father is going to court to get an injunction against his wife to prevent her from having an abortion!
At this point, the opponents of the Supreme Court decision often invoke the precedent of Dred Scott, the infamous decision of the Supreme Court involving black Americans and concluding that they are not truly citizens.
It seems to me, if one is concerned with the parallel of slavery and with the relevance of the 13th amendment--the Emancipation Amendment—that a more plausible parallel is to focus on the impact on the woman who, in the name of family integrity and harmony and autonomy, is supposed to carry a child to term against her will and then give birth to it.
It seems to me that a woman in contemporary America who is forced into submitting herself, at the insistence of a man empowered by law to control her choice, to the pains and anxieties of carrying and delivering and nurturing a child that she did not wish to conceive or does not want to bear and raise, is entitled to believe that more than a play on words links her forced labor with the conception of involuntary servitude that the 13th amendment was designed to eliminate in our society.
Now, no less than anyone else do I see a terrible moral dilemma in the decision to place a woman's reproductvie autonomy and her bodily integrity above the survival, the very life, of a fetus who surely at some point be a fully developed human being whatever one's views of when humanity begins. But for me the implication of the moral difficulty of that choice is not that there should be a solution by law, but that the choice should be a personal one.
Now, Professor Yoonan concludes by saying that three things are at issue here; I think I agree with him, but I come out the opposite way on all of them.
He says first, Federal-State relations are at issue. I agree, but with my colleague Professor Ely I say that this is not a matter on which a uniform Federal formula is appropriate. Where Professor Ely and I disagree is that he would make the formula one adopted by the States, while I would make it one adopted by the individual family.
Then Professor Yoonan say's family automony and structure are at issue. I agree, but it seems to me that this points in favor of the Supreme Court's decision, not in favor of giving any central government the power to tell families when they may and may not abort.
He says, finally, that the role of government in decisions about life is at issue. I agree. But I think that when those decisions become
sufficiently attenuated, controversial, personal, intimate, religious, then the appropriate role of government is inaction. The appropriate solution is to delegate the problem to private choice, neither to relegate it to solution by individual State legislatures nor to seek resolution in the uniform formula of some public law, be it a statute or a constitutional amendment which in the end is doomed to fail.
[The prepared statement of Professor Tribe follows:] TESTIMONY OF LAURENCE H. TRIBE, PROFESSOR OF LAW, HARVARD UNIVERSITY
S.J. Res. 119 and 130 have been proposed as constitutional amendment to overturn the Supreme Court's abortion decision, Roe v. Wade, 410 U.S. 113 (1973). Having studied the text of the proposed amendments, I am surprised to find that neither of them would be likely to achieve that objective, and that both could well have consequences which even their sponsors would regret. I have asked myself why the proposed amendments are so oddly misdirected even from their sponsors' own perspectives and have concluded that the reasons go to the very heart of the abortion controversy and of the difficulty of resolving it at this point in our history through public processes-a difficulty the Supreme Court properly recognized when it entrusted decisions about early abortion to the private choices of women and their doctors.
1. THE PROBABLE CONSEQUENCES OF S.J. RES. 119 AND 130
Each resolution begins with a Section 1 which would in effect declare fetuses to be “persons” and thereby prevent any state, or the United States, from depriving any fetus of its life without due process of law, or denying to any fetus the equal protection of the laws. (S.J. Res. 130, Sec. 1 seeks to prevent such acts directly, by providing that “neither the United States nor any State shall deprive any human being, from the moment of conception, of life without due process of law; nor deny to any human being, from the moment of conception, the equal protection of the laws.” S.J. Res. 119, Sec. 1 seeks to achieve the same end indirectly, by providing that the word “person", as used in the existing due process and equal protection clauses of the fifth and fourteenth amendments, "applies to all human beings, including their unborn offspring at every stage of their biological development, irrespective of age, health, function, or condition of dependency.”)
But a legislature or court which entrusts women and their doctors with the responsibility of deciding whether or not to abort a pre-viable fetus (one not yet able to survive outside its mother) cannot plausibly be said to have deprived any fetus of its life without due process, or in violation of equal protection: By concluding that early abortion decisions should be privately made, a legislative or judicial body permits but does not cause the death of any fetus, and hence does not "deprive” any fetus of life without due process. Nor does such an allocation of choice to private parties deny equal protection to pre-viable fetuses; insofar as it affords less protection to the pre-viable fetus than to the viable fetus or to the newborn infant, the resulting inequality is obviously justifiable as a constitutional matter (i.e., is "compellingly" justified) in terms of the vastly greater physical burden that protecting the still dependent fetus would impose on its mother. Even one who believes deeply that this added burden does not warrant putting the life of a pre-viable fetus in its mother's hands would be hard pressed to demonstrate that a contrary judgment is so impermissible as to violate equal protection or due process.' The upshot is that neither S.J. Res. 119, Sec. 1, nor S.J. Res. 130, Sec. 1, would be likely to overturn judicial or legislative action (such as the Roe v.
1 This point is more fully developed in Tribe, The Supreme Court, 1972 TermForeword: Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. I. REV. 1, 32–33 n. 144 (1973) (hereinafter cited as Toward a Model of Roles). Reaching a contrary conclusion in order to effectuate the supposed "intent" of the amendments would not only raise all of the usual difficulties of divining intent from ambiguous evidence but would also require stretching settled constitutional doctrines so far as to threaten highly disturbing consequences in areas having nothing at all to do with abortion or the "right to life.”
Wade decision or New York's statutory liberalization of its own abortion laws) treating decisions about pre-viability abortion as matters of private conscience. And the same analysis applies to S.J. Res. 130, Sec. 2, which would forbid governmental killing of any fetus (among others) on account of "illness, age, or incapacity" but would probably not forbid governmental choices lcaving the matter in private hands.
Put most smply, making fetuses “person8" under the Constitution does not necessarily imply that women have no right to decide whether to terminate an early pregnancy. For no amount of constitutional redefinition can alter the biological fact that, prior to viability, fetuses-even if they are demed “persons"—are persons of a very special type: namely, persons whose continued survival and development can be assured only by using bodies of other persons. What one believes about the morality of using someones body against her will, or (conversely) the morality of placing bodily integrity above human survival, cannot be settled simply by deciding that fetuses are persons and thus not to be killed by government without “due process" or "equal protection". For the nagging question, which remains unanswered by the mere characterization of the fetus as one kind of being or another, is what due process and equal protection require of government in the special situation of persons linked to one another in the unique way of mother and fetus. Would due process and equal protection require that government protect the life of the dependent fetus (the unborn “person") over the bodily and psychic integrity of the mother? I know of no constitutional principle that points to an affirmative reply. On the contrary, the precise constitutional conclusion of Roe v. Wade--that government cannot intervene to protect the pre-viable fetus if the mother objects-need not be disturbed in the slightest by guaranteeing to such a fetus all the constitutional rights of personhood. (Any contrary implication in the Roe opinion, 410 U.S. at 157-158 n. 54, is pure dictum.)
If the proposed constitutional amendments would not themselves overturn Roe v. Wade, one might expect that the enabling sections of the amendments would at least empower legislatures to bring about Roe's demise. But an inspection of those sections suggests otherwise. The concluding Section 3 of each resolution simply authorizes legislatures to enact laws protective of fetal life; it does not empower them to enact laws which violate any other person's constitutional rights in the course of providing such protection. Since Sections 1 and 2 probably would not be construed to overturn the Supreme Court's holding that the woman's constitutional rights include the right to decide whether or not to abort a pre-viable fetus, it follows that Section 3 would be unlikely to authorize the passage of legislation inconsistent with Roe v. Wade.
Finally, S.J. Res. 119, Secion 2, by specifying that the proposed amendment is not to apply at all when continued pregnancy clearly threatens the mother's life, strangely appears to give the viable fetus even less protection than the Court in Roe v. Wade suggested states might today constitutionally extend : Nothing in Roe prevents states from forbidding the killing of a viable fetus simply because its separation from the mother is required to save her life : but Section 2 of S.J. Res. 119, by authoritatively declaring the “right to life" Sections 1 and 3 inapplicable in all such cases, might be construed to reach that unfortunate result.
II. THE REASONS FOR BOTH RESOLUTIONS' FAILURE The resolutions under consideration would fail to achieve their own objectives not because their sponsors have lacked intelligence or resourcefulnes. The reason for their failure, I believe, is that the underlying issue is too intensely personal and controversial to yield to successful public resolution at this point in our history : I suspect that no form of words truly resolving it could generate substantial agreement, much less the sort of consensus properly required before we amend our most fundamental law; and, if the proposed amendments were to be ratified by three-fourths of the state legislatures, the reason would almost certainly be their remarkable avoidance of the intensely heated controversy they purport to confront.
? See Thomson, A Defense of Abortion, 1 Phil. & Pub. Aff. 47 1971).