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ests of what are minorities as compared with the interests to which they have been subordinated. Thus, in this case we could say that women may be a discrete and insular minority as compared with men; indeed, I have so argued. But as between the interests of women and the interests of fetuses, it is very difficult to conclude that as between those two groups women are a discrete and insular minority and cannot get a fair hearing in the political arena.
That is a brief summary of what is in my article and it can be read at greater length.
I did want to add some remarks on constitutional amendment. It seems to me—well, first, somebody who thinks that the Roe decision was bad constitutional law but nevertheless arrived at a pleasing and acceptable political result, is not in an entirely obvious position, but it seems to me that such a person probably should leave well enough alone. The Constitution has, in every functional sense, been amended to now read as the person thinks it ought to read and it seems to me in view of the widespread criticism of the Roe decision it is unlikely that leaving Roe on the books will encourage further and similar excursions in constitutional judgment.
Somebody, however, who thinks not only that Roe is bad constitutional law but also that it does not reach a desirable political and moral result should, I would think, although the question is not altogether obvious, support a constitutional amendment calculated to reverse it. That is not always true. One might disagree with a certain decision and still hesitate to tamper with it for fear of upsetting an entire fabric of constitutional doctrine.
For example, I would think that one would quite reasonably hesitate to decide to amend the first amendment in response to a court's decision because there would be an obvious danger there of upsetting an entire body of doctrine in unforeseeable ways. I do not see this issue that way. Roe v. Wade seems to me a rather isolated esipodeindeed, the only clear example of substantive due process thinking by the Court we have witnessed since the thirties—and it seems to me that it could be reversed by one so minded without great danger of upsetting an entire body of doctrine.
Turning just briefly to the resolutions before you, numbers 119 and 130, it seems to me they have some problems as respects what I take to be their intendment, and that is to reverse the decision in Roe. It seems to me it is not entirely clear that a court would hold them to have done so for two reasons: First, there is what is known as a state action problem. By extending equal protection and due process protection to fetuses there still remains the problem that the Roe case, in theory at any rate, delegated the decision to have an abortion to the pregnant woman and to her doctor. It could be argued, therefore, that they are the persons who are depriving the fetus of life and that therefore a command that the state not deny the fetus of life without due process and equal protection is not violated. The argument would be that the state is not the body that is doing the violating. Second, it is not entirely clear to me that directly extending equal protection and due process safeguards, even passing the state action problem, will reverse Roe. Those two clauses,
the due process and equal protection clauses, generally only require that there be a reasonable basis for the state's action. And obviously, the Supreme Court thinks there is a reasonable basis for doing that; indeed, it found the arguments for permitting the abortion of previable fetuses not only reasonable but indeed, compelling. So these amendments, in referring to equal protection and due process, leave the Court the option of reading them in light of the constitutional right which it purported to discover in Roe against Wade.
That leads to my final objection and it is a fundamental one to the amendments, and that is that they share with the Supreme Court an assumption that I find very questionable and indeed, I reject, and that is the assumption that the problem of abortion, however it is resolved, is one appropriate to a uniform Federal solution. I understand that they leave some room for local variation, but unless I misunderstand them, the idea is that generally abortions are not to be permitted.
Thus, we have a Supreme Court holding that abortions are to be permitted. These amendments suggest generally they are not to be permitted. But it seems to me that there is some question as to why this is a problem that ought to be uniformly solved by the central government in the first place. It does not strike me as a peculiarly Federal issue. It strikes me, in addition, as an extremely difficult moral issue on which compassionate people and compassionate State legislatures can take contrasting views and therefore, I would argue, if there is a disposition to react to Roe by way of a constitutional amendment, it should be one calculated to return to the situation before Roe—that is, an amendment that would leave a good deal of discretion to the State legislatures to resolve this excruciatingly difficult problem as they see fit.
Senator Bays. Thank you, Professor. We will put that journal article of yours in the record, without objection. It is extensive and I think it adds to our study.
[The prepared statement of John Ely follows:]
STATEMENT OF JOHN HART ELY
I. ROE V. WADE
I have analyzed (and strongly criticized) the Court's opinion at some length in The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale Law Journal 920 (May 1973), and shall only briefly summarize my observations here. The opinion is reckless around the edges. Special reference might be made to two points in this regard. First, the Court holds that no health regulation at all, except that the abortion be performed by a doctor, is permissible during the first trimester. This is thought to follow from the Court's assertion, controversial in itself, that during that period abortion is safer than proceeding to childbirth. But of course it does not follow : the empirical observation argues, at most, for allowing abortion and not for a ban on all measures designed to make abortions safer. Second, the Court quite plainly states that even during the third trimester (at which point the Court is prepared to regard the fetus as a person) the Constitution requires that the fetus's life give way to the life or health of the mother. Given the broad definition that courts have (quite properly) given “health” in these contexts, the Court's conclusion here completely undefended, by the wayis a most frightening one.
I find the opinion equally unacceptable, however, as regards its central propositions. It never adequately explains why a desire to permit the fetus
to proceed to life is not a goal sufficiently important to support the state's legislative efforts in this area. All it says that is even arguably relevant to the point is that legal doctrine generally does not regard fetuses as persons and that the various constitutional clauses that refer to persons do not seem to have fetuses in mind. Neither demonstration is convincing, but beyond that, the conclusion that fetuses are not persons is irrelevant .
For it has never been held or even asserted that the state interest needed to justify forcing a person to refrain from an activity, whether or not that activity is constitutionally protected, must implicate either the life or the constitutional rights of another person. Dogs are not "persons in the whole sense" nor have they constitutional rights, but that does not mean the state cannot prohibit killing them: It does not even mean the state cannot prohibit killing them in the exercise of the First Amendment right of political protest. Come to think of it, draft cards aren't persons either. Second, the opinion never adequately defends
in fact it never defendsthe proposition that the right to an abortion is a constitutional right entitled to special constitutional protection that would even call for the "compelling state interest” the Court (unconvincingly) finds wanting. Nothing in the Constitution's text or history suggests any such right. The Court says there is a "right to privacy” discoverable in its interstices, and so indeed there may be, if one has reference to a right under some conditions to keep from the government information he would rather it did not have. But whatever else abortion may involve, it does not involve a right of that contour. I would be the last to suggest that the Constitution prohibits only the very things the framers had in mind : inferences from the value structure the document embodies are the very stuff of constitutional judgment. The point is the Court suggests none. · I am of course aware that the Constitution contains some clauses so openended as to suggest that their content was meant to be worked out over time. But surely they are not carte blanche for courts, or we might as well stop pretending we are in any significant respect a democracy. The question, there fore, is how the Court should give them content. It might respond by reading the vaguer charters to incorporate conventional morality, or as Professor Heymann puts it, “deeply prized and widely shared” societal values. I am not at all sure that Roe comes out his way under this test, but more importantly it seems to me a test most inappropriate for judicial application. I doubt that we can ever confidently
ever confidently discover the "true moral principles of the people, but I am clear that legislatures are more likely to reflect them than courts. The more appropriate general approach, it seems to me, is to assign to the courts a role lawyers are specially trained to fulfill, that of ensuring purity of process. There are some interests that are unlikely to be adequately represented in elected bodies, namely the interests of what Chief Justice Stone called "discrete and insular minorities," and it is at least arguable that the Court should assume a special role in protecting them. There are difficulties in this approach, to be sure, having mainly to do with expressing it in adequately principled terms. But however expressed, it seems inappropriate to the abortion situation. Compared with men, women may be a discrete and insular “minority.” But as between the interests of women and the interests of fetuses, it is difficult to conclude that the former cannot get a fair hearing in the political arena.
Professor Tribe defends Roe in somewhat different terms. I have no difficulty in rephrasing the question, as he does, as one of "role allocation": all constitutional questions are that. (The first amendment, for example, doesn't tell you what to say or what not to say, but rather leaves you the decision free from government interference.) I simply do not find that it helps support Justice Blackmun's conclusion. Professor Tribe argues that the goal of protecting the "life" of a nonviable fetus cannot be invoked in defense of anti-abortion legislation. since the question whether a fetus is alive is one fraught with religious overtones. I am troubled by the argument: to disallow defenses embraced by sizeable religious groups or what is its functional equivalent, to disallow legislation when such defenses are rife—seems to re
. quire a sort of secularization at war with the spirit of the free exercise clause. The religious clauses, read together, counsel neutrality with respect
to religion : to remove a subject from public debate because 'religiously inspired views are found to be competing with others does not strike me as neutrality. But passing that, there is another defense of anti-abortion legislation to contend with, one geared not to the proposition that the fetus is alive but rather to the proposition, and it is undeniable. that whether or not a nonviable fetus is alive, it will likely become so unless it is aborted. And that, I would argue, is enough to permit the state to protect it. Professor Tribe grants that this is not an inherently religious defense, but dismisses it as "hardly compelling.” (87 Harvard Law Review at 26.) The first question is why the defense has to be "compelling" in the first place: it is, admittedly, a religiously neutral defense, and Professor Tribe quite wisely does not join Justice Blackmun's claim that the right of an abortion is somehow enshrined by the Constitution. The second question ,of course, is why the "potential life” defense isn't compelling, a question that is further focused by Professor Tribe's later assertion that the protection of a viable (third trimester) fetus is a compelling interest. "[A] state wishing to prevent the killing of infants simply has no way to distinguish the deliberate destruction of the latter from what is involved in postviability abortions.” (Id. at 28, emphasis added.) After six months, the argument based on the realization that the fetus will if unaborted proceed to full personhood is apparently so compelling as to be undeniable: prior thereto, for reasons I do not understand, it is so unconvincing as to disallow state reliance on it. The analysis is a good deal more sophisticated than Justice Blackmun’s, but ultimately it has to beg the same questions, since that is the only way to get to the same result.
II. SOME GENERAL OBSERVATIONS ON CONSTITUTIONAL AMENDMENT IN
RESPONSE TO SUPREME COURT DECISIONS
If I am an expert on anything, it is constitutional law, not abortion, and I therefore assume the Subcommittee has little interest in my views on the merits of the latter subject. (My outrage was directed at what had been done with the existing Constitution, and had nothing to do with my feelings respecting what the Constitutional ought to say on the subject of abortion.) I might add some remarks on the amending process, however.
One who feels that the abortion decision was constitutionally indefensible, but nonetheless arrived at an appropriate moral and political conclusion, is faced with a not entirely obvious choice. On the one hand, the Constitution has, in a functional sense, been “amended” to read as it should. The problem is that the wrong tribunal did the amending, and there may exist some danger -particularly after debate on the possibility of a constitutional amendment —that a failure to amend will reassure the Court in the view of constitutional adjudication the opinion evidences. The ideal response, given such a set of views, might therefore be a constitutional amendment confirming what was done in Roe, and thereby suggesting at once that the Court arrived at the politically preferrable result but that it should not have done so under the existing Constitution. Such an exercise seems obviously more burdensome —and may even be more dangerous—than it is worth, and someone holding the set of views described probably should let well enough alone. The likelihood that the Court will view Roe as an experiment whose success recommends a general loosening of the previously accepted criteria of constitutional judgment is at least somewhat mitigated by the widespread (though of course not universal) condemnation of the decision by lawyers and law professorsincluding a number (like myself) who had long thought most anti-abortion legislation overly restrictive and a number (again like myself) who had generally approved the recent activities of the Court in areas the Constitution does tell it to get involved in, such as political expression, criminal procedure and race relations.
But suppose one is of the opinion that Roe did not arrive at a politically and morally desirable result: it is clear that he should therefore support a constitutional amendment calculated to reverse the decision? I think the answer comes out yes, though I would reject the broader view that amendment is always appropriate under such circumstances. One who disagrees with a particular decision should hesitate to move against it by constitutional amendment if it can reasonably be thought that doing so would threaten the integrity of an entire constitutional fabric. For example, one might strongly disagree with a particular first amendment holding but still, quite wisely, hesitate to attempt a reversal of that holding : any attempt to tinker with the first amendment would at least have the potential of upsetting, in a host of unforeseeable ways, the whole body of doctrine, generally successful doctrine, that has been developed under that amendment. It is hard to view this problem in that way, however. The abortion decision, by comparison, seems a rather isolated episode-indeed, the only clear excursion into substantive due process we have witnessed since the 1930'—and it seems to me it could be reversed without threatening an entire fabric of doctrine."
III. S.J. RES. 119 AND 130
I find neither Resolution clearly calculated to reverse the decision in Roe, which I assume is what they are meant to do. There is, in the first place, a "state action” problem. Roe, as Professor Tribe's article makes clear, remanded “the abortion decision" to the pregnant woman and her doctor. It could at least be argued that because the termination of the fetus's life is the act of those two persons, permitted but not required by the state, the direct or indirect placement of due process and equal protection limits on the state respecting abortions simply does not reach the question. This would be a strained construction, but it is at least possible.
More importantly-passing the state action problem—the substantive provisions of the Resolutions are not clearly calculated to reverse Roe. Denominating the fetus a person for purposes of the fourteenth amendment simply does not, if Roe is carried to what we might loosely call its logical conclusion, settle the question that case posed. As I said in my article:
“[I]n fact all that would be established [by concluding that the fetus is a person] is that one right granted special protection by the Fourteenth Amendment was in conflict with what the Court felt was another; it would not tell us which must prevail."
Nor does explicitly providing the fetus with due process and equal protection necessarily settle the matter: the Supreme Court in Roe obviously thought there was a "reasonable basis" (and that is what the two clauses typically require) for permitting the abortion of non-viable fetuses: indeed it found the arguments so compelling it forbade the states to take a contrary view.
That leads to my final objection, and it is a fundamental one, to the two proposed amendments, as least as I understand their intendment. And that is that they share with Justice Blackmun and his brethren a crucial assumption that I reject--that the matter is one appropriate to a uniform federal solution. I understand that Section 3 of each Resolution will leave some room for local variation, but unless I misunderstand the general thrust it is that abortions generally are not to be permitted (except, perhaps, in the extraordinary situation mentioned in Section 2 of Resolution 119.) Thus, in general terms, the Court permitted abortions, and the proposed Amendments seek to forbid them. I have trouble, however, understanding—whichever way the issue is resolved—what it is that makes this an issue appropriate to solution by the central government. It does not seem a peculiarly "federal" issue, and it is an excruciatingly difficult moral issue on which compassionate people (and state legislatures) can differ. If there is a disposition to react to Roe by way of constitutional amendment, I would think an amendment clearly calculated to return to the status quo ante Roe—that is, to leave a good deal of discretion with the several states-would be the more appropriate response.
1 There is, of course, a danger that I am here merely reiterating my estimate of the decision's validity. One who approved it would be more likely, or at least so I hope, to see it as part of the warp and woof of American constitutional law.