A large irony of the opinions is this. The Fourteenth Amendment, made necessary by an earlier Supreme Court's attempt to make it legally impossible to protect the personal rights of a free black, is here made the source of holdings which made it legally impossible to protect the personal rights of a fetus. Forever denied the status of person "in the whole sense of the term,” forever subordinated to the psychological health of his mother, the baby in the womb has been deprived of the possibility of protection by state or federal law. It would be a waste of valuable energy to exert any effort at amending the abortion laws to achieve in the last two or three months of fetal life the uncertain protection which the Court does not outalw. A second major irony is that the Court's alternative authority for the right to abort is the Ninth Amendment. This Amendment reads: "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." The people had already spoken on abortion through the legislatures of fifty states. In Michigan and North Dakota, crushing majorities of the people had, as recently as November 1972, rejected the demand that abortion be allowed on five-month-old fetuses. Who would contend that what Justice Blackmum and his six colleagues legislated could be passed as law in Congress or in any popular referendum? How could the rights of the people be more effectively "disparaged" by an elite than for seven members of a court to pronounce their efforts at controlling assaults on life to be unconstitutional? These ironies suggest that the solution must be drastic. A majority which will mock the people with the doctrines of technocratic elitism will not stay its hand if confronted with new legislation not conforming to its sovereign mandate. The root of the problem must be reached. Two lines of attack are possible. They could be pursued concurrently: First. The Court could be expanded from nine to 15. This solution could be labeled "The Abraham Lincoln Solution." It is the idea he put forward in the famous Lincoln-Douglas debates, when Douglas insisted that Dred Scott was the law of the land. Douglas, he observed, had been one of five new judges added to the Supreme Court of Illinois, "to break down the four old ones." Was not, he implied, a change in membership in the Court a constitutional way of correcting a bad decision? In many minds sensitive to the Court's place in our institutional structure there must be reluctance to change the traditional number in response to a particular decision. The "court-packing" plan of Franklin D. Roosevelt and the strong opposition it engendered come to mind. Nonetheless, there is reason why an expansion of the Court may be considered at this time as more than an ad hoc answer to a decision. A committee appointed by the Chief Justice himself (the "Freund Committee") has proposed that the Court be relieved of many of its burdens by the creation of a national appellate for adjudication by the Supreme Court itself. The plain implication of the proposal is that nine justices are far too few to handle the enormous modern increase in the Court's business. Expansion of the Court to 15 would meet this problem directly without the disadvantage of bifurcating the functions of the highest tribunal. Expansion can be rationally justified as a functional necessity at the same time that it affords a vehicle for restoring the rights of the people. Expansion has a practical basis. Its political attractiveness does not need underlining. It is, still, however a temporary response. It does not meet the moral issue at its deepest level. It does not provide constitutional protection for human life in the future. The second possible course, then, is to follow the approach actually taken to overturn Dred Scott: Amend the Constitution. Under Wade and Bolton the fetus can never be a person within the Fourteenth Amendment, the people can never vote to give effective protection to the fetus. Very well, let the people defend the fetus by a new amendment. The people might go further. They might defend not only humans in the womb, but all nonviable humans-all humans threatened with possible classification as being lacking the "capability of meaningful life." The infant suffering from genetic deficiencies, the retarded child, the insane or senile adult-all of these potential victims of a "quality of life" mystique could be defended by a Human Life Amendment to our Constitution. APPENDIX B The Family and the Supreme Courtt John T. Noonan, Jr.* The Court and the Status of Marriage; A Progress in Three Phases The Supreme Court's treatment of marriage is conveniently divided into three phases-Phase One, in which the Court was the self-proclaimed defender of Christian marriage; Phase Two, in which the Court was the creator of partial marriage; and Phase Three, in which the Court became the upholder of no marriage. Phase One began in the last quarter of the nineteenth century when the Court first concerned itself to a substantial degree with marriage. This was the era of the Mormon polygamy cases. This was the era when Chief Justice Waite sounded precisely like his contemporary, Pope Leo XIII, in declaring marriage to be "from its very nature a sacred obligation";1 when Justice Matthews echoed the Book of Common Prayer in saying husband and wife are united "in the holy estate of matrimony";2 when Justice Field upheld an Idaho statute against bigamy because "[b]igamy and polygamy are crimes by the laws of all civilized and Christian countries";3 and when Justice Bradley sustained the forfeiture of the property of the Church of Jesus Christ of Latter Day Saints because the organization of a community for the practice of polygamy is "contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world." The last time these words of Justice Bradley were quoted † Originally delivered as the Ninth Annual Pope John XXIII Lecture, the Catholic University Law School, October 19, 1973. The Law Review takes pride in publishing Professor Noonan's in-depth study of the inferences that may be drawn from the recent decisions of the Supreme Court. The author is indebted for comments to Jesse Choper, Caleb Foote, and Paul Mishkin. Professor of Law, University of California, Berkeley; A.B., 1947 Harvard; M.A., 1951; Ph.D., 1951 Catholic University of America; LL.B., 1954 Harvard. 1. Reynolds v. United States, 98 U.S. 145, 165 (1878); cf. Leo XIII, Arcanum divinac sapientiae, 12 ACTA sanctae sedis 385-88 (1880). 2. Murphy v. Ramsey, 114 U.S. 15, 45 (1885). 3. Davis v. Beason, 133 U.S. 333, 341 (1890). 4. The Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 49 (1890). 256 Catholic University Law Review [Vol. 23:255 with approval by the Court was 1946 by Justice Douglas, confirming the conviction of certain fundamentalist Mormons as white slavers for marrying more than one woman at one time." Phase Two occurred at the time of World War II and its aftermath when the rapid rise in marital breakups put the greatest strain upon the formal divorce law of the states. The Court in Williams 1o upheld a Nevada divorce for visitors to Nevada from North Carolina; permitted in Williams II' the state of North Carolina to show that the visitors were, after all, North Carolina domiciliaries over whom Nevada had no jurisdiction and whom North Carolina might prosecute for bigamy; let Connecticut in Rice v. Rice treat as a widow in Connecticut the former wife of a Connecticut resident who had received a divorce valid in Nevada; decided in May v. Anderson that a custody decree valid in Wisconsin would not bind one of the parents who lived in Ohio; and held in Vanderbilt v. Vanderbilt10 that a divorce valid in Nevada and New York would not prevent an ex-Vanderbilt spouse from obtaining a support order as a wife in New York. The result of these decisions was that you could be free to marry in one state and be liable in another to personal support of your former spouse, statutory claims on your estate, and prosecution for bigamy. You could be entitled to your children in one court system and be denied your children in another. You could be a somewhere wife or a somewhere husband. You could be a husband who could not be a widower, a widower who could not be a husband, a wife who could not be a widow, and a widow who could not be a wife.11 Rice v. Rice prompted Justice Jackson to invoke Macbeth: "Confusion now hath made his masterpiece."12 Vanderbilt v. Vanderbilt, decided after fifteen years of wrestling with these issues, made Justice Frankfurter exclaim the Court is "turning the constitutional law of marital relations topsy-turvy." 9913 The Court had created divisible divorce, mobile marriage, or, most accurately, partial marriage. Phase Three is modern. It began in 1968 with Levy v. Louisiana.1⁄4 The Court held that a state may not discriminate against those born out of wedlock in any action for the tortious death of a mother. In almost the 5. Cleveland v. United States, 329 U.S. 14, 19 (1946). 8. 336 U.S. 674 (1949). 9. 345 U.S. 528 (1953). 10. 354 U.S. 416 (1957). 11. Paraphrasing Justice Jackson in Rice v. Rice, 336 U.S. 674, 680 (1949) (dissenting opinion). 12. Id. at 676, quoting Macbeth, Act II, scene III, line 65. 13. Vanderbilt v. Vanderbilt, 354 U.S. 416, 425 (dissenting opinion). 14. 391 U.S. 68 (1968). 1973] Family and the Court 257 same breath, the Court held in Glona v. American Guarantee & Liability Insurance Co. that a state may not discriminate against the mother in an action for the tortious death of a child born out of wedlock.15 None of the justices in the majority or in the minority drew any distinction between discrimination against the child and discrimination against the mother. Labine v. Vincent,10 decided in 1971, backtracked. The Court held The that a state might discriminate against a child born out of wedlock. state might deny him the right to inherit from the man who had publicly acknowledged him to be his son. Justice Black declared: There is no biological difference between a wife and a concubine, The state's power to create and sanction discriminations based on marriage was thus roundly asserted in terms the nineteenth century Court would have understood. A year after Justice Black's opinion, the Court decided Weber v. Aetna Casualty & Surety Co.18 Children adulterously born out of wedlock sought compensation under a Workmen's Compensation Act for the death of their father. Compensation was decreed, and the state statute barring it was invalidated. For the Court Justice Powell wrote, "The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust . . . . Obviously, no child is responsible for his birth. . . . ”19 The principle set out was large enough to condemn the discrimination just approved in Labine. Conceivably, to avoid fraud, a state could still set a high standard of proof of parentage for children born out of wedlock when their asserted parent was dead. An absolute rejection of their rights was irreconcilable with Weber. At the end of 1972, the Court affirmed per curiam Richardson v. Davis.20 The Social Security Administration, by 15. Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73 (1968). 16. Labine v. Vincent, 401 U.S. 532 (1971). 17. Id. at 538. 18. 406 U.S. 164 (1972). 19. Id. at 175. 20. 409 U.S. 1069 (1972), aff'g 342 F. Supp. 588 (D. Conn. 1972). 258 Catholic University Law Review [Vol. 23:255 incorporating the state's inheritance laws, had put children born out of wedlock in a second class position for receiving social security benefits on their father's death. The Court agreed with the District Court that the discrimination was unconstitutional. Per curiam the next month, January 1973, the Court decided Gomez v. Perez.21 Texas gave children born in wedlock a right to support from their fathers while it did not give children born out of wedlock. The state, the Court said sweepingly, "may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally." 22 The force of the Court's repudiation of injury to the children brought into question statutory schemes ostensibly directed at the parents. Already in 1968, as a construction of the Social Security Act, the Court in King v. Smith 23 had invalidated Alabama's "man-in-the-house" rule. Alabama and nineteen other states treated a man cohabiting with a child's mother as a parent furnishing support. By this device these states denied the child the status of a dependent child eligible for social security benefits. The rule was found contrary to the federal Act. Congress, said Chief Justice Warren, had "determined that immorality and illegitimacy should be dealt with through rehabilitative measures rather than measures that punish dependent children."24 In the wake of Weber and Gomez, the approach taken in King became, in May of 1973, a matter of constitutional law. The New Jersey Family Assistance Program for the working poor provided that benefits should be paid only to married persons with children who were born in wedlock or with children who were legally adopted. The purpose of this restriction, as found by a three judge federal court, was "to preserve and strengthen traditional family life."25 Testimony showed that "a family structure based on ceremonial marriage could provide norms and prevent anomic,"2" said Judge Fisher for this court. The strengthening of family life appeared to be a legitimate legislative end to Judge Fisher. Withholding benefits to encourage marriage appeared a rational way of achieving the end. 27 In New Jersey Welfare Rights Organization v. Cahill28 the Supreme Court summarily reversed.. Judge Fisher's findings of lawful purpose and rational means 21. 409 U.S. 535 (1973). 22. Id. at 538. 23. 392 U.S. 309 (1968). 24. Id. at 325. 25. New Jersey Welfare Rights Organ. v. Cahill, 349 F. Supp. 491, 496 (D.N.J. 1972). 26. Id. 27. Id. at 497. 28. 93 S. Ct. 1700 (1973).. |