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It is precisely in areas so intimate, where public attitudes are so deep!y and religiously divided, that private choice can be most plausibly defended as our Constitution's way of reconciling the irreconcilable without dangerously embroiling church and state in one another's affairs. In a 1970 opinion, the late Justice Harlan observed that “the continuing debate respecting birth control and abortion laws" typifies the very "risk of politicizing religion" and of creating “political fragmentation on sectarian lines" which the first amendment's separation of church and state was designed to avoid. When the Court in Roe v. Wade recognizes the highly charged and distinctly sectarian religious controversy that the abortion debate has come to stir, it advances an argument which not only supports the basic allocation of deci. sional responsibility mandated by Roe—the allocation of responsibility to women and their doctors --but also suggest the danger, and the likely futility, of seeking now to overturn that allocation by constitutional amendment.

Ordinarily, one who agrees that a particular Supreme Court decision correctly construes the Constitution remains free to support an amendment to overturn that decision's effect. But the peculiarity of Roe v. Wade, as I have suggested here, is that it defensibility as a matter of constitutional interpretation rests on a premise whose acceptance would argue against efforts to overurn Roe at this time through the amendment process.

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In contrast to the predictable failure of S.J. Res. 119 and 130 to formulate a public abortion rule that could achieve its proponents' aims while winning general public acceptance, the Supreme Court's decision in Roe v. Wade powerfully illustrates the comparative advantage of constitutional adjudication over the far less flexible process of constitutional amendment. I have in mind the fact that the Court in Roe v. Wade made fetal viability the point beyond which governmental power to protect a fetus overrides a woman's right to control her own reproductive processes. Since the killing of a viable fetus-one able to survive after removal from the womb-cannot be distinguished in any operational way from infanticide, viability marks a point after which a state, wishing to avoid acting on controversial religious premises, could properly conclude that permitting abortion would be tantamount to permitting murder in its most widely accepted secular sense. More important still for our purposes, viability has a variable character: as medical technology advances, the fetus is likely to become viable-capable of survival outside the womb-at points ever closer to conception itself. That the impact of Roe v. Wade as a limit on state power to protect the unborn may hence be expected to diminish with time has seemed to me entirely appropriate in a constitutional framework that must necessarily evolve through history. But more can be said. For the overriding objection to the Court's abortion decision as a moral matter must surely be its subordination of one functional “minority” (the unborn) to another (w en). If this is so, and if Roe must be seen as purchasing the partial liberation of one grou with the enslavement (or worse) of another, at least it must be said that the choice of viability as the cut-off makes the sacrifice temporary by adopting a virtually “self-destructing" line; the choice of viability leaves open the path to greater protection of the unborn once the commitment of resource to their well-being, as evidenced in part by an acceleration of the time of viability, makes that a more plausible and widely shared ideal.

So Roe v. Wade emerges as a defensible though deeply troublesome decision: defensible because the choice it allocates to the private sphere is profoundly ill-suited to public resolution in the current era, and troublesome for reasons that are calculated to diminish with time—as the liberating thrust of the decision becomes increasingly compatible with protecting the unborn. To seek an amendment overthrowing Roe is to return to the public sphere an issue we cannot yet publicly resolve, and to do so in terms that would be

3 Walz v. Tax Commission, 397 U.S. 664, 695 (1970) (separate opinion of Harlan, J.).
+410 U.S. at 116, 160-61.
8 See Toward a model of Roles 18-32.
6 See Toward a Model of Roles 27-28.
? See id. at 3 n. 13, 27 n. 118.

long frozen in constitutional stone as they would be miscalculated from the perspective of their own proponents.

Respect for life calls for persuasion and support; I believe that coercion in the absence of meaningful public consensus, whether brought about by statute or by constitutional amendment, would in the end be anything but life-enhancing.

Senator Bayu. Thank you, Professor Tribe, Professor Heymann?




Mr. HEYMANN. Mr. Chairman, I also have an article that I would like to submit for the record.

Senator BAYH. We will put that in the record. [The document referred to follows:]

8 I have not discussed here the possible implications of S.J. Res. 119 and 130 for such issues as euthanasia, but it seems to me clear at the very least that omnibus amendments of this sort, triggered by one occasion in this instance, by Roe v. Wade but couched in terms far more broadly applicable, represent dangerously imprudent uses of the amending process.

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The Forest and the Trees: Roe v. Wade

and Its Critics

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Douglas E. BARZELAY*

The Supreme Court's decisions in Roe v. Wadel and Doe v. Bolton,2 holding unconstitutional state prohibitions on abortions during the early months of pregnancy, have already engendered much popular criticism, and have begun to attract scholarly disapproval as well. Criticism is likely to continue to center around two aspects of the cases: first, that the Court had no business "second guessing” a legislative determination that could not be called arbitrary or wholly irrational;* second, that in any event the Court failed to give sufficient weight to the state's interest in protecting the unborn. It is primarily with the former question that this article is concerned; without denigrating the moral importance of the latter, its legal ramifications are nonetheless limited. Whether the Court had any business so carefully scrutinizing this legislative judgment, however, is a question that touches profoundly on its institutional role in our system of government, and on the scope of its power in defining and protecting "fundamental" rights.

The thesis of this article is that the Court's opinion in Roe is amply justified both by precedent and by those principles that have long guided the Court in making the ever-delicate determination of when it must tell a state that it may not pursue certain measures, because to do so would impinge on those rights of individuals that the Constitution explicitly or implicitly protects. The language of the Court's opinion in Roe too often obscures the full strength of the four-step argument that underlies its decision.

(1) Under the fourteenth amendment to the Constitution, there are certain interests of individuals, long called "fundamental” in judicial decisions, that a state cannot abridge without a very good reason.7

(2) The Court has never limited this set of "fundamental" interests to those explicitly mentioned elsewhere in the Constitution.8

(3) One set of nonenumerated but fundamental rights, which the Court has recognized for 50 years but has only more recently begun calling aspects

Professor of Law, Harvard University. B.A., Yale, 1954; LL.B., Harvard, 1960. ** B.A., Yale, 1969; J.D., Harvard, 1973. 1 410 U.S. 113 (1973).

2 410 U.S. 179 (1973). The issues decided in Doe, as well as the jurisdictional issues present in both cases, are beyond the scope of this article.

3 Among the early critical responses are Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973); Abortion, The New Republic, Feb. 10, 1973.

4 E.g., Ely, supra note 3, at 926 passim. 5 E.g., id. at 923-26. 6 The use of the term “fundamental" to refer to the range of individual rights protected under the fourteenth amendment goes back at least as far as 1872 and the SlaughterHouse Cases, 83 U.S. (16 Wall.) 36, 76.

7 See 410 U.S. at 155. 8 Id, at 152-55.



of "privacy," includes rights of individual choice as to marriage, procreation and child rearing:

(4) Since the issue of a right to terminate a pregnancy falls squarely within this long-established area of special judicial concern,10 the Court was obligated to determine in Roe whether the states did in fact have a sufficiently compelling reason for abridging the individual's freedom of choice as to abortion. 11

Elucidating the precedent and principle that support the major premises of the Court's decision in Roe does not, by itself, fully meet the arguments of the Court's critics.12 If they have missed the forest of precedent in the area of marriage, procreation and child rearing, in part it may be because the Court itself has sometimes approached the cases in this area as if they were isolated trees. However, an equally important reason for missing the forest may be the tendency of the Court in recent cases to impose on the fourteenth amendment, in the name of judicial restraint, a conceptual framework that sees the amendment's broad clauses as a compendium of discrete and more explicit protections found elsewhere in the Constitution. In the context of the fourteenth amendment, this particular set of lenses discloses only the separate, specific guarantees of the Bill of Rights—and perhaps the most obvious assumptions of democratic government. Viewed through such a filter, the decision in Roe may indeed look strange. There are, however, other perspectives on the proper role of judicial review under the fourteenth amendment that pose no such difficulty in justifying the abortion decisions yet address, just as adequately, the troublesome problem of distinguishing “fundamental” interests from the much broader class of interests that a state legislaturę may regulate without satisfying a court that the need is compelling. I. THE JUSTIFICATION IN PRECEDENT AND PRINCIPLE

FOR THE ABORTION DECISIONS A. The Court Has Long Protected FundamentalInterests Under the

Broad Language of the Fourteenth Amendment, Including Interests

That Are Not More Specifically Defined Elsewhere in the Constitution The first two propositions of the four-step argument underlying the decision in Roe are no longer seriously disputed. The minimal judicial

9 Id.
10 Id. at 154.
11 Id.

12 There are, in fact, a number of comparatively serious criticisms that might be di. rected at the decision but that do not go to the heart of the broader issues we are considering. The Court may well have gone too far in its seeming codification of detailed restrictions on health regulations and procedures, particularly during the first trimester of pregnancy. The line it drew at viability is presently vague, subject to troublesome modifications with the development of medical knowledge and technique, and, in any event, perhaps further along during pregnancy than the mother's interest requires. Further, the Court's ruling that, even after the fetus is viable, the state's protection of the fetus cannot conflict with consideration of the mother's “health,” which may well include mental health, is wholly unexplained and undefended. These and other, less significant, criticisms are not, however, crucial to its decision invalidating state prohibitions of abor. tion and they are thus not relevant to the discussion of that core holding which follows.

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