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area of family independence that has been built up as a cornerstone, I think, of our Constitution, over 50 years.
But I agree with Professor Tribe and I want to put in the record a story that hit me rather hard.
When I told a student who was working for me on another matter, a woman law student named Diane, that I was coming down to testify on this, she told me that she had written to her ('ongressman, who I will leave unidentified, and expressed her opposition to the abortion amendment.
She said that she received in turn a long and thoughtful letter stating both sides of the issue and then saying in the last sentence, “In the final analysis, I am Catholic and for that reason I am supporting the abortion amendments."
And she said to me, “Now how am I supposed to react to that? He is my Congressman and I am not Catholic. Is the subject beyond discussion between us?" It seems to me a dramatic illustration of the problems of religious involvement that have to come in here if it becomes a matter of constitutional amendment, or state Legislation.
Finally, I think the problems would be terribly acute if any such amendment is passed because the strength of feeling of women about having unwanted children, let alone children who are likely to be severely damaged by German measles or Thalidomide, the strength of feeling that I would have in that situation is fully comparable to the most severe of religious conflicts in history.
I would anticipate that at this stage, to pass an amendment such as these would have results comparable to prohibition. The only difference being perhaps that poorer women would be unable to get abortions.
Thank you, Mr. Chairman.
TESTIMONY OF PHILIP B. HEYMANN, PROFESSOR OF LAW, HARVARD LAW SCHOOL
INTRODUCTION The subject of this set of hearings is whether the abortion cases should stand. I understand that the Committee has asked today's witnesses to address the narrower, purely legal question "were they correctly decided ?" That question must be considered in terms of judicial self-restraint and deference to legislatures rather than in terms of morality and the meaning of life; for the power of courts to overrule elected state legislatures is at the core of the legal issues. Moreover, in the final analysis, under the Supreme Court decision neither the Court nor the legislature decides about the morality of terminating a pregnancy. In the end, the decision is to allocate that responsibility for choice to the woman and her doctor.
The question is, was the court correct to cut legislatures and legality out of the issue, leaving private individuals and morality. I think it plain that the abortion cases were correctly decided. Showing that requires beginning by stating clearly the five steps of the Court's argument.
1. Under our Constitution, there are certain interests of individuals that a state cannot abridge without very good reason. About this I think there is no real debate.
2. This list of protected interests or rights is not restricted to explicit provisions of the Constitution. It includes other interests brought forward slowly over time by judicial construction of the Constitutional notions of “due process," "liberty,” and “equal protection.”
3. The right of a woman and her doctor to decide whether or not she shall go through with a pregnancy and give birth to a child is one of these funda
mental interests; it belongs on the lists of rights that a state cannot abridge without strong reasons.
4. Once it has been shown that a state is abridging such a fundamental interest, it is the duty of the Court to decide whether the state's action is justified by sufficiently important countervailing interests. It cannot defer to the legislature here.
5. Finally, the Court has held that there are stages in the development from a single fertilized egg to birth at which a claim made by someone other than the parent of the embryo or fetus that the process be allowed to continue cannot override the right of the woman and her doctor to decide to the contrary.
Let us look at the five steps one at a time. Take the first. Of course a state cannot affect individual interests for frivolous reasons, or no reason, or indefensible reasons of prejudice. But I think Professor Ely agrees that the Constitution goes farther than this in the case of certain fundamental interests of individuals. Freedom to worship as one pleases is an obvious example. These a state cannot abridge, even unintentionally, without very good reason. Two clauses of the Federal Constitution have borne the primary weight for the Court in thus limiting the power of state legislatures. Both are in the Fourteenth Amendment; one forbids the deprivation of life, liberty, or property without due process of law; the other forbids the denial of equal protection of the laws. Under both clauses the Court has overruled plausible state judgments in order to protect some individual interests by requiring a much stricter standard of the states, by demanding that there be a strong basis for the state's interference with the individual interest.
This power of the Court has been questioned throughout this century. In the early 1900's the Supreme Court decided that the right to contract and the right to carry out one's business as one pleased were such fundamental interests; that is, interests that could not be abridged by the states except for very compelling reasons. The high water mark of this may have been the case of Lochner V. New York in 1905 striking down a state statute which limited the hours that a baker could work to sixty per week. Since that time the Court has vigorously rejected any claim that freedom of contractor freedom to carry out one's business is a specially protected interests. But at the same time, it has never been prepared to say that there are no such specially protected interests. The Jutsices whose names have become famous for their opposition to the Lochner line (Holmes, Brandeis, Stone, Cardozo) were themselves satisfied that freedom of speech could not be interfered with by the states without a compelling reason. They all agreed that the right of parents to send their children to private schools was also such a specially protected interest.
In 1927 Justice Brandeis was able to summarize the matter in this way:
Despite arguments to the contrary which have seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantative law as well as to matters of procedure. Thus all fundamental rights comprise within the term liberty are protected by the Federal Constitution from invasion by the states. The right of free speech, the right to teach, and the right of assembly are of course fundamental rights.
The important point to emphasize here is that almost everybody agrees by now that the clause of the Fourteenth Amendment which forbids depriving any person of life, liberty, or property without due process of law grants a substantive protection against certain state statutes. It does not simply require fair procedures. The question that has concerned judges and legal scholars is what individual interests are fundamental, not whether there are any.
IIA: THE HARLAN STATEMENTS
This takes me to the second step of the court's argument. The Court plainly holds that the list of fundamental interests of individuals is not restricted to explicit provisions of the Constitution but may grow slowly to include interests that are implicit in the most basic but unwritten values of our society. This has been affirmed explicitly by some of the most respected and conservative of justices in recent years; not only Brandeis but Cardozo,
Frankfurter, and Harlan are examples. No where is the point stated more clearly than in the opinions of Justice Harlan dealing with the subject of contraception. In the forerunner of the Griswold case, l'oe v. lllman in 1961, Justice Harlan noted and I quote:
*Two views of the Amendment have not been accepted by this Court as delineating its scope. One view which was ably and insistently argued in response to what were felt to be abuses by this Court of its reviewing power sought to limit the provisions to a guarantee of procedural fairness. The other view which has been rejected would have it that the Fourteenth Amendment whether by way of the privileges and immunities clause or the due process clause applied against the states only precisely those restraints which had prior to the Amendments been applicable merely to Federal action. However, due process in the consistent view of this Court has ever been a broader concept than the first view and more flexible than the second. Through the course of this Court's decisions (due process] has represented the balance which our nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. (It) recognizes what a reasonable and sensitive judgment must: that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgement."
In Grisucold v. State of ('onnecticut, Justice Harlan went on to argue that the claim that limiting the Court to specific provisions of the Constitution would enforce judicial self-restraint was itself fallacious.
Specific provisions of the Constitution, no less than due process, lend themselves as readily to personal interpretations by judges. ...
IIB: THE CASES
There are no clearer examples of the Courts' willingness to go beyond the explicit language of the Constitution in recognizing fundamental interests than the cases, such as Harper v. l'irginia Board of Elections, where the Court has struck down state election laws, although the Constitution apparently leaves the matter of state elections to the judgment of state legislatures. Professor Ely distinguishes these cases as rationally based on a failure of the very assumptions on which deference to legislative judgment depends. I shall argue later that the distinction is not nearly as sharp as he suggests. Still, for clarity, let me begin with another set of cases demonstrating that the Constitution protects certain personal interests which bear no close relation to any specific prohibition on state or federal actions. I shall mention seven examples.
Two of the cases arising in the 1920's involved the right of parents to rear children as they see fit. Meyer v. Nebraska struck down a prohibition on the teaching of German to children who had not passed the eighth grade. Pierde v. Society of Sisters sustained, with the support of Holmes, Brandeis, and Stone, the right of parents to send their children to private schools. Neither opinion was based on the First Amendment right of free speech. In Skinner v. Oklahoma in 1942, the Court plainly applied an unusually strict test of rationality in striking down an Oklahoma statute providing for the sterilization of people repeatedly convicted of theft. I have already mentioned Griswold v. Connecticut in 1965 holding unconstitutional the Connecticut prohibition on the use of contraceptives. The Court emphasized the possibility that the police might search marital bedrooms "for telltale signs of the use of contraceptives," but I believe that most people recognized that this was disingenuous. The Court could have forbidden police intrusion into homes without invalidating the statute, yet they chose to invalidate it.
In Levy v. Louisiana in 1968, the Court recognized and emphasized in striking down a statute discriminating against illegitimate children that “the rights asserted here involve the intimate, familial relationship between a child and his own mother.” The dissents made clear that a traditional, equal protection line would not have voided the state statute. Surely a recognition of the unusual importance of the relationship was crucial to the decision. Then in Boddie v. Connecticut, the Court extended the right to dispense with paying court fees to poor people involved in bringing divorce actions. Justice Harlan's language was "given the basic position of the marriage relationship in the society's hierarchy of values and the concomitant state monopolization of the means for legally disolving this relationship, due proces does prohibit the state from denying, solely because of its inability to pay, access to its courts to
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individuals who seek judicial dissolution of their marriages." There is no corresponding provision for other rights involved in civil litigation. If one is sued on a contract or wishes to sue for an automobile accident, he cannot proceed without paying fees. While Justice Harlan purported to distinguish these cases on the ground that there were other ways of settling without recourse to courts, he mentions no other ways and it seems clear that the special nature of the marriage relationship was again crucial. Surely the decision would have been different if a fee for a driver's license had been in issue. Finally, as a prelude to the abortion cases, the Supreme Court decided Eisenstadt v. Baird applying what all recognized as an extraordinarily strict Standard of equal protection to strike down a statute prohibiting the distribution of contraceptive drugs.
Each of these decisions can perhaps be narrowly distinguished, as can a number of others which fall in much the same category. But the fact that, through a variety of careful distinctions, one might avoid Justice Harlan's conclusion that the Fourteenth Amendment has never been restricted to either matters of procedure or matters of substance found elsewhere in the Constitution, does not deal with the strong sense of where the Court has gone over a period of the last fifty years.
IIC: THE POLICY So much for precedent. It may be as much to the point to ask whether, in interpreting the proper relationship of our institutions, one would prefer, with Justice Black, that only cases that fit within other provisions of the Constitution be given special review by the Supreme Court or whether one would wish, with Justice Harlan, to have the Court recognize a developing field of protection of interests reflecting a deeply held social values. Consider the following hypothetical cases. Suppose a state were to prohibit operations designed to remedy disfiguring birth defects or scars from burns or accidents or psychiatric treatment of mental illness, justifying the action in each case on the ground that the state statute would have the effect of encouraging doctors to do what the legislature considers more useful work. I, for one, believe that the Court not only would but should strictly review such state decisions.
Suppose that a state were, in order to reduce the great costs of shoplifting, to require anyone civilly committed for narcotics addiction thereafter to identify himself by wearing a clearly labeled arm band when shopping within its jurisdiction. I suppose the Court would find that to be a denial of equal protection, but the provision is rational. The real basis for strict review of a plausible measure to deal with a serious problem would be the very fundamental and powerful interference with the right of the person subjected to the provision. And what if, considerably more plausibly, a state were to forbid abortion in the case of pregnancy resulting from rape. Would this not be an appropriate occasion for a careful review of the states' reasons?
IIIA: THE SETTING
The third stage of the Supreme Court's opinion is a holding that the right of a woman and here doctor to decide whether or not she shall go through with the pregnancy and give birth to a child is one of the fundamental interests which a state cannot abridge without powerful countervailing reasons. Is there something distinct and special about this interest that suggests it should be treated like an exercise of freedom of religion and protected by the Court? Or is it one of any number of other interests, like the right to smoke pot for example, that we all assume are better left to legislative decision, even legislative folly? The answer is, I submit, very plain.
Even a quick look at the list of cases which I have already given shows that this interest is very much in an area that the Court has slowly, over five or six decades, come to protect with special concern. It first protected the right to decide how children shall be reared; it then protected the right of procreation against sterilization; it has given special attention to the right of divorce and to the right of marriage (Loving v. Virginia, a miscegenation case) ; it had before the abortion case recognized, in Levy v. Louisiana, the special importance of rights involving "the intimate familial relationship between a child and his own mother" and it had of course in Griswold and Eisenstadt emphasized the right not to give birth to a child, in those cases by use of contraceptives.
IIIB: THE CHARACTERISTICS OF THE PROTECTED CATEGORY For three reasons, only two of which are relied upon by the Court, it seems to me that, against this emerging background, the Court was correct to find fundamental and deserving of special protection the interest of a women in deciding whether she shall go through with a pregnancy and give birth to a child. First, the cases have come to recognize a facet of our lives as fraught with feeling and meaning as religion is today or was in 1790. The area of beliefs and behavior surrounding the decision to marry or separate, to procreate or not, and to rear children according to one's beliefs shares with the area of religious belief and worship both a personal importance that makes state interference deeply disruptive and a privacy that makes state interference generally unnecessary. As with the case of freedom of religion, press, or speech particular forms of interference may be unimportant to the individuals involved in some cases and may be necessary in others, but in each case strict judicial review is warranted of the need for abridgment of deeply personal, extremely intimate, profoundly meaningful beliefs and behavior. This, I take it, is what the Court meant by its reliance on a right of personal privacy.
The question of initiating, continuing, or terminating a pregnancy involve fundamental interests for a second reason. Like a prohibition of surgery to remedy defacing scars and like a requirement that former shoplifters or exheroin addicts wear an identifying arm band, pregnancy pervasively alters the content and quality of a human life. Justice Blackmun thus spoke of the detriment that the state would impose upon the pregnant women by denying her the choice between continuing or terminating her pregnancy.
Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.
The facts involved in Doe v. Bolton are illustrative:
*(1) She was a 22-year-old Georgia citizen, married, and nine weeks pregnant. She had three living children. The two older ones had been placed in a foster home because of Doe's poverty and inability to care for them. The youngest, born July 19, 1969, had been placed for adoption. Her husband had recently abandoned her and she was forced to live with her indigent parents and their eight children. She and her husband, however, had become reconchild. He was a construction worker employed only sporadically. She had been a mental patient at the State Hospital. She had been advised that an abortion could be performed on her with less danger to her health than if she gave birth to the child she was carrying. She would be unable to care for or support the new child.
Finally, the Court did not mention, but might well have noted, that as in the voting cases which Professor Ely distinguishes, the reasons for deference to the views of a state legislature are severely weakened in the setting of abortion and contraception. The well-to-do and prominent, the successful and influential, those in short who must be depended upon to bring about a change in law have not found it difficult to escape the prohibitions of contraceptive and abortion laws. Before Grisucold and Eisenstadt, the well off were not without contraceptive advise and devices in Connecticut and Massachusetts. Before Does and Roe, abortions could be obtained in another state or country if one's private doctor refused. It is not a coincidence that each of these cases involved the poor and politically weak, public meetings and clinics not private offices. The Court has been understandbly unwilling to remedy discrimination on the basis of ability to pay the costs of services. But where such discrimination may well eliminate much of the pressure for legislative views reflect public beliefs are surely reduced as well.
IV: THE COURT MUST WEIGH THE COUNTERVAILING INTEREST
The fourth step of the Court's argument is a holding that once it has been shown that a state is abridging a fundamental interest it is the duty of the Court to decide whether the state's action is justified by sufficiently important countervailing interests. This has, of course, been the practice whether the