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fundamental interests was freedom of religion, freedom of speech, freedom of travel, the right to vote in state elections, or the array of interests surrounding the sexual and child-rearing aspects of our lives. On reflection, the rule could hardly be otherwise. The Court can no more protect these private interests from state abridgment if it accepts the state's evaluation of the Constitutional balance than it could enforce the limits of federal legislative power if it accepted Congressional judgment as to the meaning of the Constitution and the impact of Congressional actions. Marbury v. Harlan decided the latter issue 170 years ago. The same reasoning applies here. There can be no protection, for example, of the intimacy of the marriage relation if the mere existence of a state prohibition on use of contraceptives is taken to establish an overriding state interest of a moral, social, or medical nature.
Nor is the matter different when the very issue is whether invasion of a fundamental interest of a women is justified by a claim that there is at stake the interests of another equally important being, the embryo or fetus. Whether the fetus, at any particular stage, entitled to equal consideration is the very matter the Court must decide. It cannot at the same time accept the state's judgment on this matter and purport to protect the fundamental interests of the woman. This is, I take it, what the Court meant when it said : "we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.”
The Court could not, moreover, avoid itself striking the balance by relying on a principle of restraint wherever public opinion is badly divided on a question. It has occasionally followed that path. After Brown v. Board of Education, it sustained a state miscegenation law presumably on this ground. But the result was to weaken respect for the Court, not to strengthen it. The Court has a responsibility for determining the reasonable implications of the deeply held values, of our society whether or not much of the public is, at a particular moment, prepared to accept these implications. It did so in Brown, in thecase of reapportionment, in the case of school prayer, in the area of confessions and searches and right to counsel, although it is by no means clear that the public was in favor of any of these decisions. In some cases the Congress even sought to overturn the decisions by statute or Constitutional amendment. Yet they were, I believe, no only correct and desirable decisions but decisions that the country has come to accept as correct and desirable.
V. : THE CLAIMS OF THE PRE-VIABLE FETUS DO NOT CREATE A
The final step of the Court's argument is, if I am right so far, forced upon it by the prior steps. It had, in the final analysis, to decide whether there were stages in the course of human development from a single fertilized egg to birth nine months later at which a claim made by someone other than the parent of the embrye or the fetus (even a claim made by the legislature of a state) that the process be allowed to continue should override the right of the woman and her doctor to decide. As we all know, the Court decided that there were such stages. To be relatively precise, the Court held that two valid state interests grow in importance over the time between conception and birth : the interest in protecting the mother's health and the interest of the fetus. I do not deny, and it seems to me the Court does not deny, that one could reasonably attach great weight to the prospect of life from its earliest days when we have little more than a handful of cells possessing a rich genetic code. But much that we associate with the value of human life is not present at the earliest stages. There is no feeling nor thought that we know of. There is no feeling nor thought that we know of. There is no reciprocal relationship to others that is reflected in need or love. There is no memory or fear.
It is crucial that a sharp line be drawn to show where human life begins and ends if we are to maintain a respect for life without regard to differences in intelligence, age, looks, and experience. But surely the line can safely be drawn well after the emergence of a fertilized egg. What most of us mean by life, what most of us care about when we think of protecting life, is not true of the twelve or sixteen cells present on the third or fourth day after pregnancy nor is it present for some time thereafter.
It is worth considering what an alternative holding would have meant. A state would have been free to forbid such forms of contraception as the IUD or the morning after pill. A state that allowed no exception from its abortion
laws for pregnancies resulting from rape would be able constitutionally to require the mother to bear the child of the rapist for the nine months of pregnancy, to develop the attachments which are as powerful as they are natural in all species, and then to choose between devoting much of the next two decades of her life to a child she did not want or subjecting to the uncertain. ties of adoption, foster care, or an orphanage what had grown in nine months of pregnancy and weeks after birth to be her flesh and blood. And the power of the state to require these results would flow from no more than a claim that the earliest division of cells following conception creates a being as entitled to life as a pregnant child of fourteen or a woman of forty.
The Supreme Court had to draw a line and it drew a line at the point at which the fetus was viable if sepa rated from the mother. Perhaps the line is further along than I or some of you would like it to be, but that is unlikely to have great practical significance. The overwhelming proportion of abortions will take place in the early months. What is crucial is the correctness of the Courts' determination that there is an early stage at which the potential of the embryo or fetus is not of the same importance as the realiy of the impact on the woman bearing it. This determination was entirely justified.
CONCLUSION: THE ALLOCATION OF CHOICE It seems to me that the Court had to go as far as finding that human life with all its claims to importance had not begun in the early days of the embryo and the fetus. But in a very important sense, that it is not the consequence of the decision. The consequence is that it is the moral judgment of the mother and her doctor which determines when the life of the fetus shall be considered so substantial as to prevent abortion within the limits that states may impose under the recent Supreme Court opinion. I am not at all sure how I feel about an abortion at the end of the six weeks or twenty weeks, but I am sure that the answer depends on an immense number of factors ranging from the willingness of the woman to have intercourse, through her age, her family circumstances, her marital situation, and on and on. It is in light of all these factors, which no statute can incorporate, that the Court has in effect allocated the choice for the first five or six months after conception to the mother and her doctor. It has not decided that the fetus has no moral claim within this period but simply that the fetus has no legal claim that the state can enforce. This allocation of choice among the mother, the state, and the Court is, I believe, a wise solution to a deeply troublesome problem as well as a solution wholly consistent with Constitutional precedent and reasoning."
Senator Bayu. I thank all of you gentlemen; it has been very impressive testimony.
Professor Heymann, you said that you thought if an amendment such as one of these passed, it would deny the State legislatures the right to differentiate between abortion and first degree murder.
Mr. HEYMANN. I did, Mr. Chairman. My basis for that is that the amendments say that for purposes of the Fourteenth Amendment, particularly the equal protection clause, from the moment of conception, the fetus will be considered a person.
Now, I take it that that was intended to say, subject to the difficulties Professors Ely and Tribe raise, as to whether it really accomplishes it, that a State legislature could not impose a lesser penalty for killing a fetus that for killing an adult, anymore than it could impose a lesser penalty for killing an Eskimo than for killing a white Caucasian. In other words, I take it that the intent of the amendments is to say in all ways, fetuses are people from the moment of conception.
1 For a fuller discussion of my views. I would refer the Committee to the article I wrote with Douglas Barzelay : "The Forest and the Trees : Roe v. Wade and Its Critics,” Boston University Law Review, Volume 53, Number 4, July 1973. I respectfully suggest that it be incorporated in the record as part of my testimony.
Senator BAYh. Professor Noonan, what do you say to that, sir?
Mr. NOONAN. Well, I am struck by the fact that one the one hand Mr. Heymann says this is going to make abortion murder, and on the other hand, Professor Tribe says that it will accomplish nothing, that it is ineffective to protect the fetus.
Senator Bayh. Well, as a legal scholar, do you feel this would take a way the States' rights to differentiate between abortion and first degree murder, as we now know it?
Mr. Noonan. Let me be candid, Senator, and say this, I have not addressed myself to the precise consequences of these proposed amendments because it seemd to me that they were starting points in a legislative drafting process, and that they took what I think all of us here in the academic legal world feel is rather an extreme starting point. It did not seem to me realistic, I suppose that your committee would end up with either one of these drafts as the one that the committee would recommend to the Congress. I for one have some difficulty in spending time analyzing something that seems to me a paper starting point. I feel that my distinguished colleagues have been shooting at paper tigers in shooting holes in these amendments. I do not believe that they are the drafts that you will come up with, and I would be happy to expand on what I think the particular wording of these amendments can be exposed to at least some of the objections that have been made.
Senator Bayh. I must say I sat here and listened to your testimony and I thought it was very powerful testimony, but if I had to stake my life on it, I would stake my life on the fact that you supported one of the two amendments.
Mr. NOONAN. Well, Senator, I am supporting the idea of an amendment very strongly, but I am not supporting the text of either one of these amendments. I have had nothing to do with the drafting process that has been criticised, and I would be happy to submit to your committee in writing my idea of an amendment. But I am not here today to support the text of either one of these amendments.
Senator Bays. When you have some time to give some thought to that, we would be glad to have that.
Mr. NOONAN. Yes, if you like. I can say to you right now that it seems to me that the kind of amendment which implicitly iş called for--at the end of my statement where I say that amendments cannot dot every “i” or deal with every contingency-is this: an amendment that restores to the States the power to protect life and at the same time prohibits the States and the Federal Government from taking life, I think that will accomplish what an amendment can accomplish, that is an education in the values at stake.
The only amendment, as you know, which operates directly on the people is the Thirteenth Amendment, prohibiting slavery. The form of these amendments, which is the Thirteenth Amendment form, seems to me inappropriate for this kind of issue.
I was tremendously heartened when I heard the invocation of history by Professor Heymann. If that is the way people of his point of view in the legal world are thinking, you will have tremendous support for an amendment which restores to the States the powers
that they have had for 150 years, which the Supreme Court said were inconsistent with ordered liberty. It restores it to them and at the same time adds-and I think this is an appropriate reaction now-a specific provision that the State itself shall not be in the business of taking life.
Senator Bayu. Could you please explain further how the Supreme Court decision puts the State in the business of taking life.
Mr. NOONAN. Well, the lower courts-I am just dealing with what a variety of Federal judges from Boston to San Francisco have done—have taken Roe and Doe to say that here is a constitutional right which the State must finance. It is an extraordinary kind of constitutional right. There are not many which create a right to State funds. But that is the way the decisions have gone.
If you have a hospital providing surgical services financed by public funds, you have got to provide abortion services despite the conscience of the people of the State that says abortion services are against our conscience. That is the way the Federal Court in Boston decided. And it has gone right through the country. I have the cases in my fuller memorandum submitted to your committee. We now have a body of law interpreting Roe and Doe that mandates public funding of abortion, against the consciences of, I would suppose, the majority of people in the majority of States.
How do we escape it? We cannot, without the amendment.
Senator Bayh. The way I read those decisions is based on the fact that if you establish a standard to change the way things have been established before, then not to permit the financing of this to those who are in the very low end of the economic spectrum would be to violate equal protection.
Mr. Noonan. I understand that is the basis, but it stems from, first of all, reading the word "liberty" in Fourteenth Amendment to mean liberty to have an abortion, and then goes on from there, and saying this is
Senator Bayu. Is it possible for you to separate your opposition to the decision and zero in on the wisdom of that particular part? I mean, is that based on good law or not?
Mr. Noonan. I think given the premises—I think given those two decisions—the Federal judges have not acted improperly. I think they have before them what their superiors on the Supreme Courts have set down. They did not have any choice.
So, I say to you, Senator, and I think it is of some interest to every senator concerned with the Federal Government's role in health services, it seems to me highly doubtful that you are going to be able to enact a bill which provides Federal health services without the courts coming in and saying that those services must include abortion services; so that you will have the Federal Government involved in abortion on a massive scale.
You may have seen the statement from HEW, which Senator Buckley commented on this morning: 278,000 abortions are now being financed by medicare, or the Federal Government is now a partner in helping about a third of the abortions in this country. That is a pretty large partnership. And that is under those court rulings interpreting the Supreme Court.
Senator BAYH. I think you meant medicaid instead of medicare.
You said, Professor Noonan, that there were distinctions in the law now relative to the way the fetus and persons were treated, and you mentioned Social Security. Could you give us an example of that, please?
Mr. Noonan. There are a number of lower court decisions. In the fuller memorandum I cited Doe v. Luckard, from Pennsylvania; and I think there must be half a dozen now, with some conflict in the district courts, but the majority of them holding that a fetus is an individual within the term “individual” in the Social Security Act, so the payments are not only to the mother, but to the fetus as an individual. I for one find it interesting that the legal mind is so constituted that it has not troubled the judges to say, oh, yes, a fetus is an individual under this statute, he or she is not an individual under our Constitution. Congress can make him or her an individual for statutory purposes for a benefit-for a benefit, but not to protect the life.
I feel strongly, Senator Bayh, that the way we lawyers think accustoms us to thinking about fictions as though we could do anything with them, and yet there comes a point when you have to say, enough of fictions, let us look at the facts.
When the courts give up the facts, then we come to you and say, let us let the people put in such a provision so that the facts may be looked at.
Mr. HECKMAN. I would like to start with what would be a jurisprudential question for all of you, and it is something which Professor Ely alluded to: Under what circumstances is it appropriate for the Congress and the legislatures in the Several States to consider a constitutional amendment overturning a specific Supreme Court decision? It has been done twice, perhaps three times. But is it simply whenever two-thirds of the Members of Congress and three-fourths of the states believe it would be appropriate, or is there some other way-perhaps along the lines that Professor Ely suggested—that some decisions are more subject to constitutional amendment than others.
Would anybody care to volunteer to start on that one? Professor Ely?
Mr. Ely. Right. I would just reiterate what I said, and like to respond to one thing Professor Tribe said, which relates to the question.
It seems to me that this is a decision-although I think Professor Tribe and Heymann should be heard on this— whose reversal would not carry a host of unforeseeable implications for other doctrine. It would be in the latter circumstances that I would think that one who felt that the result was wrong and immoral should nonetheless hesitate to amend the Constitution. I do not see this as such an occasion, nor do I see it as Professor Tribe has suggested, as one that inevitably implicates religious division and tension. I personally do not have a view, to be quite honest, on when life begins. To me it seems in many respects an unanswerable question. But I do not think that