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THE SUPREME COURT

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cording to any doctrine of "immutable and necessary antecedent rules," at least when applied in a society that has grown past its revolutionary beginnings, ultimately "sanctifies the old" and "widens the gap between current social conditions and the principles used by the courts." 70

I hope to show that couching Roe v. Wade and Doe v. Bolton in role-allocating terms will likewise facilitate their constitutional analysis in this instance, their constitutional defense. As in Lochner, there is no doubt that what the Roe and Doe decisions concern "liberty" is a fit subject for judicial protection.71 But, again as in Lochner, the question one must ask is whether the specific protections of liberty decreed in Roe and Doe allocate roles in a constitutionally defensible way, viewing the Constitution as a framework independent of any immutable catalog of allowable and forbidden ends.

>> 72

Of course, "the allocation of competences" is precisely "the sort of issue the Framers generally did address themselves to," for the obvious reason that a nation's fundamental law could not afford to leave unresolved the most basic issues of decisional power. Although one encounters the notion of competences most frequently when discussing the judicial resolution of conflicts between levels or branches of government, the notion is no less relevant when discussing the resolution of conflicts between private and public authority,73 and even when considering the resolution of conflicts between alternative private decisionmakers.

Law, 1780-1820, in 5 PERSPECTIVES IN AMERICAN HISTORY 287 (D. Fleming & B. Bailyn eds. 1971). See also note 230 infra.

70 Dewey, Logical Method and Law, 10 CORNELL L.Q. 17, 26 (1924). So it was that Lochner's half-century was one in which the Court "applied complacently eighteenth-century conceptions of liberty of the individual and of the sacredness of private property," Brandeis, The Living Law, 10 ILL. L. Rev. 461, 464 (1916), to a social order in which they constituted "major contributing factors in the perpetuation of the inequalities that were accompanying the growth of American industrialism." A. PAUL, supra note 35, at 227. See also Goodpaster, supra note 7, at 484. Of course natural-law notions as such need not be bound to any immutable doctrine. See D. BOORSTIN, THE MYSTERIOUS SCIENCE OF THE LAW 48 (1941) (Beacon paper ed. 1958). On the contrary, in the long history of such notions there is an important strand that seeks its moral truths in the changing norms of the society itself. See C. HAINES, supra note 34, at 249-72, 318, 332; cf. Kadish, Methodology and Criteria in Due Process Adjudication: A Survey and Criticism, 66 YALE L.J. 319 (1957).

71 See Ely 935.

72 A. BICKEL, THE LEAST DANGEROUS BRANCH 104 (1962).

73 See, e.g., Jaffe, Law Making by Private Groups, 51 HARV. L. REV. 201 (1937). See generally Fried, supra note 60. When the question is whether a certain kind of decision should be made legislatively or judicially, the Supreme Court regularly assumes that the final distribution of roles in accord with the constitutional scheme must be its responsibility - even when the conclusion is that the role should in

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Obviously, the Constitution cannot be expected to settle all role-allocation questions. And when it can reasonably be treated as having settled them, the answers it provides will not be mechanically derivable from the text or history of the document itself. The message of the Constitution is generally delphic; its application, here as elsewhere, will require the inescapably valueladen striking of various balances among competing considerations and the selection of one from among several interpretations that might give the document a necessary coherence. But I believe that the identification of which considerations are relevant and which are not, the determination of which are constitutionally legitimate and which violate structural premises rooted in the Constitution, and the shaping of the balancing process itself in the light of contemporary aspirations and conditions, can all be usefully informed by a consciously role-allocating perspective.74

Like one of my predecessors in the task of Foreword-writing, "I am more interested in ways of thinking about certain legal problems, and in ways of saying what the significant factors are, the end be a legislative one. See, e.g., Gilligan v. Morgan, 93 S. Ct. 2440, 2444-45 (1973). And within any given part of the public realm, the Court commonly proceeds on a quite explicitly role-allocating conception of the nature of its task. See, e.g., Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). But the Court has not limited its role-allocating mission to distributions of authority among or within public entities. On the contrary, it has also recognized its role-distributing obligation when the question before it has been whether a particular type of decision must be made privately, by persons and groups free of public regulation with respect to the relevant aspects of their activities, or by publicly controlled, and hence at least partially accountable, entities. For example, in Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 93 S. Ct. 2080 (1973), noted p. 175 infra, the Court described the question for decision as that of "who shall determine what issues are to be discussed [over network television] by whom," id. at 2100, and did not doubt its responsibility for resolving the question whether the type of decision there involved had to be made by an uncontrolled group of private individuals or could instead be made by some publicly regulated process. See also notes 142, 145 infra.

74 There can be little doubt that what is widely perceived as the appropriate degree of judicial restraint and deference in constitutional adjudication depends on attitudes and expectations far more basic than the mere existence or absence of a verbal relationship between a "claim for judicial protection and some relatively specific provision of the Constitution." Heymann 783; see Deutsch, Neutrality, Legitimacy, and the Supreme Court: Some Intersections Between Law and Political Science, 20 STAN. L. REV. 169, 252-59 (1968). But when a court's only guide to decision is its sense of the "deeply held societal values" bearing on the controversy before it, Heymann 783, and its belief that the legislature misconceived the content of those values or gave them insufficient weight, see id. at 783 n.83, the danger is obviously very great that the Court's interventions will be subject to all the infirmities that plagued Lochner. When the Court's judgment can be rooted more firmly in the Constitution's explicit provisions, as I argue tends to be the case at the level of role-allocation more than elsewhere, see pp. 50-52 infra, this risk is at least reduced and the Court's warrant for not simply avoiding it is a good deal clearer.

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than I am in doctrinally formulated summaries or predictions of outcomes.' But if I am to indicate how role-allocation can provide a model for substantive due process adjudication, then I must sketch doctrinal formulations even when I am of several minds as to their contents. What follows is a tentative effort to develop such a model in the illustrative setting of the abortion controversy.

V. THE DISTRIBUTION OF ROLES IN ABORTION

In the role-allocation model, the due process clause is violated whenever the state either assumes a role the Constitution entrusts to another, or fails to assume a role the Constitution imposes upon it. To make this notion more concrete, it might help to set out initially, in a more or less schematic way, how a roleallocating due process analysis would proceed. Beginning by identifying the role whose constitutional placement is in controversy in this case, the role of deciding whether and when an abortion is to be performed-one asks whether anything in the Constitution has a bearing on the allocation of this specific role as between governmental choice, on the one hand, and private choice, on the other." To take a clear example, the first amendment's prohibition of government abridgment of free speech indicates that the role of choosing whom to expose to various political views should not, as a general matter, be reposed in government.78

75 Michelman, The Supreme Court, 1968 Term - Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7, 10 (1969). 76 Though such a formulation might appear somewhat novel, it parallels the roleallocating separation-of-powers antecedents of substantive due process. The original theory was that a legislative act transferring property from A to B, if it proceeded on the basis that B was justly entitled to it, "would be void, because judicial in its nature; and if it proceeded without reasons, it would be equally void, as neither legislative nor judicial, but mere arbitrary fiat." COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 184 (Brown & Co. 2d ed. 1872). See also Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810) (Marshall, C.J.); Calder v. Bull, 3 U.S. (3 Dall.) 386, 387–89 (1798) (Chase, J.); Corwin, The Basic Doctrine of American Constitutional Law, 12 MICH. L. REV. 247, 260, 263-70 (1914); Henderson, Railway Valuation and the Courts, 33 HARV. L. REV. 902, 904 (1920).

Even today, the vice of a law characterized as violative of due process because it is too vague to comprehend may be described as its excessive shifting of properly legislative and judicial roles to the executive branch.

77 Even though the lines between the public and private spheres occasionally blur and are at times illusory, see generally Black, The Supreme Court, 1966 Term Foreword: "State Action," Equal Protection, and California's Proposition 14, 81 HARV. L. REV. 69, 91 (1967); Henkin, Shelley v. Kraemer: Notes for a Revised Opinion, 110 U. PA. L. REV. 473, 481-87 (1972), we operate within the frame of a constitutional scheme that treats the two differently.

78 The first amendment's establishment clause likewise serves to indicate that certain roles, such as that of choosing which religious belief to accept, see Schwartz,

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If the constitutional analysis, after taking into account, or "balancing," the considerations in favor of making the role governmental as well as those against, still points to the conclusion that, in contemporary society, the role should be a private one, then a second level is reached, and one must ask whether the Constitution imposes any constraints on what sort of individual or group, within the private realm, may exercise the role in question. In some instances, a negative answer to this second-level inquiry will result from the absence of governmental involvement in the allocation of private roles. But in other situations, governmental inaction will leave the role in what appears to be a constitutionally preferred position once all factors relevant to its location have been considered, and one will be able to say that the Constitution would be violated by a governmental choice to transfer the role to someone else.

Finally, once the role has been located at a particular point outside government, the analysis asks whether its meaningful exercise, or any independent constitutional concern, might require government to play some complementary and facilitative role of its own. As this Foreword will indicate, although that question presents a complex interaction of institutional and other variables, the Constitution may again provide significant guid

ance.

Of course, the role-allocation theory necessitates balancing competing considerations no less than does the particularized approach of the Court in Roe. The difference, as will become clear, is that the considerations and interests to be balanced become those bearing on how the relevant roles should be allocated, not those bearing on the pros and cons of abortion apart from a concern for roles.

A. The Threshold Issue: Must Government Justify?

The appellant in Roe, on "behalf of herself and all other women' similarly situated," 79 argued in effect that setting and applying the substantive criteria for deciding whether to obtain an abortion should be her function and not that of the state. In assessing that argument from a role-oriented perspective, just as from any other, one would ask at the outset whether the Constitution requires a state to offer at least some justification for the specific exercise of power involved. Unless such a requirement exists, one need not even begin the process of evaluating the legitimacy of the justifications offered for a governmental role. But No Imposition of Religion: The Establishment Clause Value, 77 YALE L.J. 692, 720 (1968), ought ordinarily to be private rather than governmental.

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since there can be no doubt that the "freedom to choose an abortion is part of the 'liberty' the Fourteenth Amendment says shall not be denied without due process of law," " 80 even Roe's critics concede that any nontrivial governmental abridgment of this freedom must be justified in terms of some "permissible governmental goal." 81 What makes Roe unusual, as Professor Ely rightly observes, is that, for reasons the Court never adequately explains, "the liberty involved is accorded a far more stringent protection, so stringent that a desire to preserve the fetus's existence is unable to overcome it." 82 But the analysis proposed here does not, at least in the first instance, demand of the state anything more than is usually required of governmental intrusions upon human liberty: plausible arguments in support of the intrusions imposed.83 It is to a consideration of such arguments that I now

turn.

80 Ely 935. See also note 26 supra.

81 Ely 935. Although, as Professor Ely says, there are those "who deny that any such doctrine should exist," id. at n.91, they do not include among their number even the two dissenters in Roe, Justices Rehnquist and White. See note 26 supra. Given the unremarkable character of the proposition that wholly unjustified restraints on "liberty" offend due process, cf. p. 13 supra, one suspects that its rejection is likely to reflect a fear that to accept even so minimal a requirement would ultimately lead a court back to Lochner itself, a fear I hope this Foreword will help to dispel.

82 Ely 935; cf. note 25 supra.

83 Although this Foreword does not rely upon such a thesis, it would be possible to argue that even a person disinclined to require that all intrusions upon liberty be somehow justified should nonetheless demand a justification for governmental control over abortion in early pregnancy, and indeed that a particularly weighty justification of the sort the Court deemed necessary in Roe must be provided here. For early abortion, like contraception, has characteristics that tend to push governmental control in directions that expose sexual relationships and other personal intimacies to official scrutiny in ways arguably incompatible with values of informational privacy latent in the fourth amendment. Particularly if one stresses the fact that Griswold v. Connecticut, 381 U.S. 479 (1965), invalidated only so much of the state law there involved as proscribed "the use of contraceptives rather than . . . their manufacture or sale," id. at 485; cf. Eisenstadt v. Baird, 405 U.S. 438, 452-53 (1972) (distribution of contraceptives to unmarried persons), one can conclude, contrary to any suggestion that this limited holding renders Griswold less relevant to Roe than it would otherwise have been, see Ely 930; Heymann 771 n.37, that the Griswold decision offers some support for a new doctrine to the effect that, even in the absence of a constitutional right to contraception (or abortion) as such, government must strictly justify any regulation in these (or analogous) areas that seriously risks placing intimate information about individuals or their relationships beyond effective personal control. Compare Stanley v. Georgia, 394 U.S. 557 (1969) (state cannot prosecute merely private possession of obscenity in individual's home), with United States v. Orito, 93 S. Ct. 2674 (1973) (no constitutional right to transport or import obscenity for one's own use). See also note 162 infra.

Because any governmental assertion of power to prevent early abortions com