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[Vol. 87:1 indispensable.160 This right to family self-definition is on its face incompatible with conferring upon any outsider a decisional role in the abortion choice.161

As with other first amendment rights and roles, however, this one may be compromised by compelling justifications for allocating the role in question in a different way.162 But, as I have tried

protect the fetus from abortion, a concern for the family's associational integrity thus cannot be limited to considerations of size.

160 See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). The Court may have had in mind an associational concept something like the one developed here when it sought to distinguish the commercial dissemination of obscenity to consenting adults, which it held essentially unprotected under the first and fourteenth amendments, from the activities protected by Roe and by Griswold v. Connecticut, 381 U.S. 479 (1965). As the Court put it in Paris Adult Theatre I v. Slaton, 93 S. Ct. 2628, 2640 n.13 (1973) (emphasis added), "the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is . . . concerned with... a protected intimate relationship . . . [and] extends to the doctor's office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved."

An emphasis on intimacy would seem to imply that the relevant family is the one in which the woman seeking an abortion has the role of mother, wife, or lover rather than the one in which she has the role of child. Among the questions left open in Roe, however, was whether a parent can be empowered to prevent an abortion requested by an unmarried minor child. See 410 U.S. at 165 n.67. For a negative answer relying on statutory grounds, see Ballard v. Anderson, 4 Cal. 3d 873, 484 P.2d 1345, 95 Cal. Rptr. 1 (1971) (en banc); for a similar answer grounded in due process, see Coe v. Gerstein, Civil No. 72-1842 (S.D. Fla., Aug. 9, 1973) (state cannot delegate to parents or husbands an authority it does not possess). I would hope that, in ultimately resolving both this issue and its converse - whether a parent can force abortion upon an unmarried minor child, see In re Smith, 16 Md. App. 209, 295 A.2d 238 (Md. Ct. Spec. App. 1972) — the Court will display more sensitivity to the independent rights of the child than is suggested by Meyer v. Nebraska, 262 U.S. 390 (1923), or Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (stressing parents' interests while conspicuously overlooking the claimed rights of the children involved, see id. at 515, 518, 532). See Wisconsin v. Yoder, 406 U.S. 205, 245-46 (Douglas, J., dissenting).

161 To suppose that contraception by itself can preserve the right to family selfdefinition, see Louisell & Noonan 234-35; cf. Stone, supra note 159, at 36, assumes that contraception efforts never fail and overlooks the potential relevance of such changed family circumstances as separation, illness, and economic collapse during pregnancy. Moreover, to suppose that giving up a child for adoption can save a family from unwanted parenthood ignores the cultural and psychological pressures that make it difficult to abandon one's offspring as well as the legal constraints society imposes upon such a choice. Thus, to say that an outsider's veto over a family's abortion choices would not affect its capacity for self-definition overlooks the realities both before pregnancy begins and after it ends.

162 Indeed, it would have been possible to begin the role analysis by observing that interference with a family's abortion choices infringes upon associational rights in a manner requiring compelling justification. Cf. note 83 supra. Such a justification would have been found in the avoidance of infanticide. But the necessity of defining infanticide would have posed problems under the entanglement doctrine developed above, until the point of viability provided a secular

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to show, the state itself— for reasons independent of the family's rights of association cannot constitutionally control the previability abortion choice. Thus, in order to be legitimate in this context, any argument in favor of conferring veto power on someone outside the family must be based not on any substantive concern about which pregnancies should be terminated, but on rolespecific reasons for preferring a decisionmaker outside the family to one within.163 But the only imaginable reasons for such a preference would entail a belief that the family is too profoundly affected by the choice, or too inexpert in the factors relevant to a sound judgment, to be as capable a decisionmaker as a less personally interested and more expert outsider would be.

To be sure, there is much in the Court's opinions in Roe v. Wade and Doe v. Bolton that can be read to suggest a desire to make the ultimate decision that of a medical expert.164 And much of the early pressure for liberalized abortion laws was grounded in a desire "to preserve the dignity, rights, and freedom of action of the medical profession." 165 But any notion that the doctor, or some other disinterested expert, is in a better position than the woman and her family, by virtue of such disinterest and expertise, not only to provide advice and consultation but also to make the final choice with respect to whether the family should have and raise a child,166 amounts to nothing more than a denial of the underlying first amendment premise that groups should ordinarily have the role of making their own ultimate associational choices, informed and perhaps influenced, but not forced, by others.167

touchstone. In general, pursuing the model of roles along several different paths, and testing the consistency of the results derived, should furnish a partial check against the model's erroneous application.

163 After viability, the state's power to prevent fetal destruction, see pp. 28-29 supra, could presumably be delegated subject to appropriate restrictions. See p. 32 & note 142 supra, p. 40 & note 178 infra.

164 Justice Blackmun's opinion for the Court in Roe flatly states that until the end of the first trimester "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician," 410 U.S. at 164, and insists that, up to the point of viability, "the abortion decision in all its aspects is inherently, and primarily, a medical decision." Id. at 166. Writing for the Court in Doe, Justice Blackmun likewise places the medical practitioner at the center of his opinion. There, the Court holds that a requirement of committee approval not only is "unduly restrictive of the patient's rights and needs," id. at 198, but also impermissibly limits "the physician's right to administer" the care his best judgment directs, id. at 197, and that "required acquiescence by copractitioners has no rational connection with the patient's needs and unduly infringes on the physician's right to practice." Id. at 199.

165 Finnis, Three Schemes of Regulation, in THE MORALITY OF ABORTION 172, 188 (J. Noonan ed. 1970).

167 There may, of course, be rare instances in which the doctor's view (1) rests

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There seems, therefore, to be no escape from the conclusion that, as to previability abortions, the associational integrity protected by the first and fourteenth amendments precludes forcing an unwanted child upon a family on the ground that the doctor, or anyone else, "knows best." 168

2. Individual Autonomy: The Role of the Woman. - Unlike the opinion of the Court, that of Justice Stewart unambiguously identifies the right protected by Roe as "the right of a woman to decide whether or not to terminate her pregnancy.' " 169 In some instances, the conclusion that the right belongs within the family takes the analysis as far as Justice Stewart's opinion would go.17 But both the Court's opinion in Roe and the analysis thus far pursued in this Foreword leave open the question of whose wish must prevail if there is disagreement within the family." Even here, the Constitution provides relevant guidance.

170

on a reasonable and truly expert medical judgment to the effect that (2) abortion would cause the woman serious physiological or psychological damage (3) substantially exceeding the damage likely to be inflicted by the coerced carrying, delivery, and upbringing of an unwanted child, where (4) the woman cannot be persuaded to follow the doctor's advice, and in which (5) the state cannot itself proscribe abortion inasmuch as the fetus is not yet viable, but where (6) the doctor would, if empowered to do so, override the wishes of the woman and her family. But to allocate veto power to doctors in order to accommodate this remarkably unlikely combination of circumstances would be to confer upon the medical profession a penumbral authority so wide and unaccountable, and so inherently unconfinable to the precise conditions thought to warrant it, as to engulf the family's rights of association in return for the most marginal of gains. Cf. p. 30 supra.

168 Nor should the Court's decision to cast Roe and Doe in medico-technocratic terms be thought to undermine a reading of those cases as ensuring that the abortion decision is to be an intrafamily one. Given the Court's holding that a state cannot require first-trimester abortions to be performed in a hospital, Doe v. Bolton, 410 U.S. 179, 195 (1973), and given the reality that the freestanding abortion clinics thereby authorized will almost surely regard the family's or woman's own decision as dispositive, see Stone, supra note 159, at 36, the Court is unlikely to have intended any real medical veto over the choice to abort. Moreover, the Court makes clear that even the "medical judgment" called for "may be exercised in the light of all factors-physical, emotional, psychological, familial, and the woman's age- - relevant to the well-being of the patient." Doe v. Bolton, supra, at 192.

Perhaps the Court simply believed that the public acceptability of its result would be enhanced if it couched the abortion holding in medical rather than ethical terms. Or perhaps the language chosen reflects little beyond the medical interests and associations of particular Justices. In no event does the medical terminology alter the substantive result.

169 410 U.S. at 170.

170 Examples would include those cases in which the woman has no family, or where no one in her family will take issue with her decision, or where the family comes to a choice by a group process that arrives at a truly shared position.

171 See 410 U.S. at 165 n.67.

57-782 O 76-22

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The central objection to conferring a veto power over an abortion that a woman seeks and a physician is willing to perform, if one is not to rely on any supposed sanctity of the doctor-patient relationship, must surely be the impact of such action in depriving the woman of effective control over reproduction and, in many cases, over her life as a whole. The Presidential Task Force of the Citizens Advisory Council on the Status of Women reached a conclusion shared by many when it said that "the right of a woman to determine her own reproductive life is a basic human right." 172 But although courts have in extreme situations affirmed the constitutional fundamentality of such reproductive autonomy, they have also sustained severe intrusions into that sphere.174 Moreover, unlike the protection for the autonomy of childraising decisions as a facet of first amendment family association, any special solicitude for a general "right to do with one's body as one pleases,' or even for a more limited "right to control one's reproductive processes," would be uncomfortably reminiscent of immutable natural-law conceptions.176

> 175

173

Rather than appealing to the immutable order of the world, the analysis I propose would ask whether the state, itself excluded from a decisional role in previability abortions by the prohibition against religious entanglement, can permissibly assign that role to a family member other than the woman herself. The argument in favor of an affirmative answer with which 172 TASK FORCE Report on FAMILY LAW AND POLICY 31 (1968).

173 See, e.g., Skinner v. Oklahoma, 316 U.S. 535 (1942) (invalidating under the equal protection clause a state statute which sterilized larcenists while imprisoning embezzlers).

174

See, e.g., Buck v. Bell, 274 U.S. 200, 207 (1927) (upholding compulsory sterilization allegedly to prevent "future generations of imbeciles"). See also Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson, 42 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985 (1964) (upholding compulsory blood transfusion to fetus over mother's religious objection).

175 410 U.S. at 154.

176 It is true that the women's rights movement drew initially upon trends in natural law thought, see, e.g., B. WRIGHT, AMERICAN INTERPRETATIONS OF NATURAL LAW 176-79 (1931), but the dangers of wedding those two intellectual currents are manifest. For example, in a decision sustaining a state ban on women lawyers, Justice Bradley expressed the view that "the noble and benign offices of wife and mother" were rooted in the "constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things. . . ." Bradwell v. State, 83 U.S. (16 Wall.) 130, 141 (1873) (concurring opinion). See also In re Goodell, 39 Wis. 232, 245 (1875). It was as "a result of notions such as these" that "our statute books .. became laden with gross, stereotyped distinctions between the sexes," with the consequence that "throughout much of the 19th century the position of women in our society was in many respects comparable to that of blacks under the pre-Civil War slave codes." Frontiero v. Richardson, 411 U.S. 677, 685 (1973) (Brennan, J., joined by Douglas, White, and Marshall, JJ.), noted p. 116 infra.

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[Vol. 87:1 a court is most likely to be confronted in the foreseeable future would claim a man's "right" to insist that the woman he has impregnated not only carry to term and deliver, but also raise, his child. But granting a man the power to force someone to carry and care for his child despite her unwillingness to use her body and life for that purpose would raise the specter of the legally enforced physical and psychological domination of one group in society by another. A woman in contemporary America who is coerced into submitting herself, at the insistence of a man empowered by law to control her choice, to the pains and anxieties of carrying, delivering, and nurturing a child she did not wish to conceive or does not want to bear and raise, is entitled to believe that more than a play on words has come to link her forced labor with the concept of involuntary servitude. It would, of course, be farfetched to suggest that the thirteenth amendment's prohibition of "slavery" and "involuntary servitude" confers upon women a right to abortion so as to avoid compelled motherhood. But it would be equally insensitive to the deepest meaning of that charter of emancipation completely to deny its relevance as a source of guidance in assessing an allocation of roles that embodies the coercive domination of one group by another.177

To give men the unreviewable power to sentence women to childbearing and childraising against their will is to delegate a sweeping and unaccountable authority over the lives of others.178

177 The thirteenth amendment's relevance is underscored by the historical parallel between the subjugation of women and the institution of slavery. See note 176 supra.

178 Cf. People v. Belous, 71 Cal. 2d 954, 972-73, 458 P.2d 194, 206, 80 Cal. Rptr. 354, 366 (1969), cert. denied, 397 U.S. 915 (1970) (abortion statute impermissibly delegated authority to physician). See generally McGautha v. California, 402 U.S. 183, 252 (1971) (Brennan, J., dissenting) (if a state cannot successfully articulate policies as to when capital punishment should apply, it is forbidden to delegate the decision to a jury's unguided whim). See also Furman v. Georgia, 408 U.S. 238 (1972) (discretionary imposition of death penalty violates eighth and fourteenth amendments).

If it is said in response that Roe in effect delegates to each pregnant woman an unaccountable power over the life or death of the fetus she carries, cf. Ely 934-35 ("compared with the unborn, [women] do not" deserve special judicial protection), the reply must be that this argument has significant force only on the premise that the fetus in early pregnancy is entitled to treatment as a human being-a premise which, because of religious entanglement, cannot constitutionally serve as the predicate for any governmental policy or choice.

Perhaps concerned with the dangers of unaccountable power over women's lives, the Court in the abortion opinions is at pains to emphasize that the physician to whom responsibility is entrusted by Doe is accountable to his patient for her "physical and mental welfare," 410 U.S. at 196, and that if the physician fails to serve her medical needs "professional censure or deprivation of his license are available remedies." Id. at 199. See also Roe v. Wade, 410 U.S. 113, 166 (1973). More realistically, perhaps, the woman is assured attention to her needs by the practical