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government itself refrain from aiding or abetting in the taking of fetal life, or at least not without due process of law. As a consequence abortions which were privately financed and performed in private hospitals might well pass constitutional muster. Only poor women, who are forced to rely on public funds and facilities, would be constrained in their right to choose abortion.

Buckley's S.J. Res. 11 alone confronts the question of state versus private action head-on in its language, although it is unclear whether this confrontation is deliberate or merely an inadvertent result of drafting. That amendment provides that "no unborn person shall be deprived of life by any person," thus apparently moving beyond the realm of governmental action along. If its author intended to reach the scope of solely private activity, the resolution represents a radical departure from existing constitutional provisions. Apart from the now discredited prohibition amendment, the thirteenth amendment prohibition against slavery and involuntary servitude is the only constitutional amendment which delimits behavior between private individuals. Moreover, such an interpretation creates the anomaly of extending to the unborn constitutional guarantees against deprivation of life at the hands of any person, while the lives of children and adults are only protected against governmental arbitrariness.

D. UNCERTAINTY OF IMPACT

The ambiguity of the texts of the Buckley and Helms amendments makes it difficult to predict their interpretations. The texts permit courts to move in at least three possible directions. One possibility is the amendments will be given a broad interpretation consistent with the sweeping language of the amendments. The ideas of personhood for fetuses and a right to life for all people will be taken seriously and developed into substantial constitutional rights." This solution has the virtue of taking its key from the text of the amendments which speaks in terms of protecting the rights of all persons.

Another possibility is to give the amendments a narrow interpretation and read them as simple prohibitions on abortion. This interpretation would conform to the intent of the sponsors. Its disadvantage is the texts of the amendments say something quite different. They mention personhood and the right to life, not abortion.

This interpretation also raises the question of whether the guarantee will affect governmental action alone or whether it will reach private activities as well. Only if the amendments are interpreted to reach private as well as state action could they, with the exception of Buckley's S.J. 11, act as outright prohibitions on abortion.200

A third possibility is the amendments will have virtually no effect. This is the position of Prof. Laurence Tribe who argues the amendments only require the application of due process and equal protection to fetal life. Thus, under these amendments, courts would still have to weigh the fetal "person's” right to survival against the woman's right to bodily integrity. In testimony before the Senate subcommittee Prof. Tribe said : 101

"Would due process and equal protection require that government protect the life of the dependent fetus (the unborn 'person') over the bodily and psychic integrity of the mother? I know of no constitutional principle that points to an affirmative reply."

For example, consistent with the amendment's due process and equal protection requirements, courts could consider the impact of a continued pregnancy on a woman's health. In the context of abortion the Supreme Court has given "health” the broadest possible meaning and has defined it as a "state of being ... sound in body [or] mind.” 102

This interpretation has been given implicit if inadvertent support by the amendments' sponsors. Under the Helms amendment no explicit exception is made to a fetus's right to survival for those cases where continuation of a pregnancy threatens a woman's life. The amendments' sponsors claim that an explicit exception is unnecessary because courts can balance the fetus's life against the

08 In the Civil Rights Cases, 109 U.S. 3 (1883), the Supreme Court drew clear lines between the thirteenth amendment's scope over all forms of involuntary servitude and the fourteenth amendment's express limitation on state action only.

on See Sec. III A, infra. 100 See Sec. III C, infra.

101 Testimony of Laurence Tribe before the Senate Judiciary Committee, Subcommittee on Constitutional Amendments, October 8, 1974 (unpublished).

102 U.S. v. Vuitch, supra note 50 at 72.

woman's right.103 Yet if courts can balance these two interests and decide in favor of the woman, why couldn't they weigh other interests—like a woman's health-in the same way.

All of these interpretations are possible. They are not just minor variations or alternatives on how far the amendments will go in a single direction. They point in separate, widely divergent directions. The result is rampant uncertainty as to the impact the implementation of any of the amendments then would have. The seriousness of amending the Constitution demands more guidance and more precision from proposed amendments.

IV. CONCLUSION

The proposed anti-abortion amendments have two major flaws. First, they withdraw important guarantees of personal liberty. Second, at least three of them are so poorly drafted that it is impossible to know what they mean or what they will accomplish. Rewriting the amendments will not cure these defects. The first is inherent in the nature of the political purpose they are to serve. The amendments were written to circumvent two Supreme Court decisions; the only way they can accomplish this is to withdraw the constitutional guarantees of liberty on which the decisions rested. The second flaw—the poor draftingis made inescapable by the politics of enacting an amendment. The sponsors of the amendments want to stop women from getting abortions. The most direct tack, writing a criminal statute, was foreclosed by the Supreme Court. Technically, an amendment imposing criminal sanctions could be written into the Constitution, since the subject matter of a constitutional amendment is virtually limitless. Politically, however, such an amendment would never succeed. To attract serious attention the amendments had to be written in terms of protecting broad human rights.

Enacting a constitutional amendment is a serious proposition. It creates uniquely powerful law and engrafts that law onto this country's fundamental legal document. The proposed constitutional amendments and probably any anti-abortion amendment 104 are too flawed in their most basic concepts and format to justify their ratification.

108 Different supporters of the amendments find justification for this exception in different sources. Sen. Helms simply asserts that such a jutification would exist, Senate Hearings, supra note 19, at 94-95. Prof. Robert Byrn, an active supporter of anti-abortion amendment. relies on "the doctrine of legal necessity." Statement of Prof. Robert Byrn, before the Senate Judiciary Committee, Subcommittee on Constitutional Amendments, March 10. 1975 (unpublished). Rep. Lawrence Hogan finds justification for the exception in the due process clause although he is unsure exactly how the due process clause will accomplish this. During questioning by Sen. Birch Bayh this exchange took place : "Mr. HOGAN. ... And I am saying you could, [save the life of the mother). because all

in my constitutional amendment is you must accord that other human being due process. And in the course of due process, you choose the mother's life over the child's. That is due process...,

"But, wherever you give, wherever you recognize the rights of the child and weigh them against the rights of the mother, you are affording due process.

Senator BAYA. Well, that is the newest detinition of due process I have ever heard. It is the first definition of due process I have seen like that.

"Do you go to the court for this due process ? In other words, is this the kind of due process where if the doctor decides that continuing the pregnancy will jeopardize the mother's life, then the unborn child will always lose? ... How do you describe it? Due process sounds very nice, but how does it work in the hospital room? "Mr. HOGAN. The way it works is in order to get the legal right to kill this child you go

rt, and the court. which is where the due process system works, weighs the respective rights and decides that the mother's life should be preserved which requires the aborting of this fetus. ...

“Senator BAYH. In other words, in order for an abortion to be legal under your amendment, you have to go to court and get a court order ?

"Mr. Hogan. Yes, just like we had to do with the case of the woman in the Jehovah's Witnesses for the blood transfusion.

"Senator BAYH. Would the child be represerted by a lawyer ?
"Mr. HOGAN. Certainly.
"Senator BAYF. And suppose the lawver wanted to appeal?
"Mr. HOGAN. Certainly he can appeal it. Certainly he is entitled to appeal.

"Senator BAYH. We all now are frustrated at our inability to get justice by appeal, after appeal, after appeal. So you end up with a mother dying because of the pregnancy due to the appeal situation.

"Mr. Hogan. I agree, Senator."

104 Sen. Scott, for example, attempted to write a Constitutional amendment which would meet some criticisms of the other proposed amendments. He abandoned the project because he was unable to draft what he considered a satisfactory amendment. Planned ParenthoodWorld Population: Washington Memo, (April 7, 1975) at 4.

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SCHOOL OF LAW

BOALT HALL
UNIVERSITY OF CALIFORNIA • BERKELEY

Abortion and the Constitution: The Need for a Life-Protective Amendment

Robert A. Destrot

As a result of the recent congressional hearings held on proposed constitutional amendments designed to overturn the rulings of the United States Supreme Court concerning abortion, the abortion controversy has once again become a major topic of public interest. The author seeks to identify the two distinct areas of debate involved in the issue and to discuss, in particular, the central topic raised by many of the proposalsthe rights of the unborn. It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law and forgets that what seem to him to be first principles are believed by half of his fellow men to be wrong ...1

Abortion, the right to privacy, the right to life these topics have been in the public eye since the decisions of the United States Supreme Court in Roe v. Wade and Doe v. Bolton. These decisions have not settled the abortion controversy: it continues in Congress, in the courts, and in the media. The subject matter is complex and may be debated at many levels. However, without a focus or common ground of discussion, efforts toward resolution inexorably lead to more debate, more confusion, and ultimately, frustration and anger for the parties involved."

* A.B., 1972, Miami University; J.D., 1975, Boalt Hall School of Law. The author acknowledges Professor Hal Scott, now at the Harvard Law School, and Mr. Joe Feldman of Boalt Hall School of Law for their assistance in locating the materials cited in footnote 83, and Ms. Gudrun Fuchs, a visiting research scholar at Boalt Hall School of Law, for the many hours she spent translating the parts of the opinion of the West German Federal Constitutional Court found in the Appendix to this Comment.

1. O.W. HOLMES, COLLECTED LEGAL PAPERS 295 (1920).
2. 410 U.S. 113 (1973) (hereinafter cited as Roe).
3. 410 U.S. 179 (1973) (hereinafter cited as Doe).

4. See, e.8., San Francisco Chronicle, April 7, 1975, at 34, col. 1 (editorial comment).

5. See, e.g., Commonwealth v. Edelin, Crim. No. 81823 (Super. Ct. Suffolk County, Mass., filed Feb. 15, 1975) on appeal, No. 81823 (Ct. App. Suffolk County, Mass., filed July 1, 1975) discussed in NEWSWEEK, March 4, 1975, at 18.

6. See, e.g., NEWSWEEK, March 4, 1975, at 18 (cover story).

7. See, e.8., NEWSWEEK, June 9, 1975, at 11 (current status of abortion controversy characterized as "sellout").

1250

1975]

ABORTION AND THE CONSTITUTION

1251

This Comment undertakes to identify and explore several areas of debate. First, it discusses the rationale and practical effect of the Supreme Court's decision to legalize abortion in Roe v. Wade (hereinafter the “access” question). The focus then shifts to a discussion of the Court's decision in Doe v. Bolton and the existence of state power to regulate the means through which abortions may be obtained. Finally, mention is made of the background, rationale, and content of proposals for reform in these areas. It is hoped that the areas of debate relevant to this controversial issue will be seen as separate issues, each requiring careful and individualized consideration.

I
Roe v. WADE: A QUESTION OF ACCESS

A. Introduction In Roe v. Wade, which involved a challenge to the Texas abortion statutes, the Court held that a woman's decision to procure an abortion is constitutionally protected and may be restricted only in the face of a compelling state interest. The majority opinion identified legitimate governmental interests in protecting the unborn and in ensuring that abortions are performed in circumstances maximizing the health and safety of the mother. These interests were then weighed against the more generalized interests of the pregnant woman.

The Court's attempted accommodation of these interests was based upon a division of pregnancy into three periods, roughly equivalent to "trimesters”. 20 During the first trimester there was to be no interference with either the decision to abort or the means by which this decision was to be effectuated. In the Court's opinion, neither of the states' interests was so compelling as to justify any restriction upon either the personal freedom of the pregnant woman or the medical judgment of her attending physician.11 The Court concluded that near

8. Tex. PENAL CODE $$ 1191-94, 1196 (1963).

9. The decision purported to decide the issue without predilection. Roe, 410 U.S. at 116-17. The opinions, however, do not bear out this assertion. Recurrent in both the majority and concurring opinions are both the personal opinions of the Justices and the phrases “meaningful life" and "potential life.” Roe, 410 U.S. at 162, 163; Doe, 410 U.S. at 217. This is not to say, however, that the Justices did not make an attempt to subordinate their personal feelings; but if, as they correctly noted, the question was of such a nature as to be singularly inappropriate for judicial decision, it is difficult to understand why they even decided the case. Where particularly delicate policy questions are involved, the appointed judiciary may be the least qualified to speculate as to the proper resolution. A legislature, or the people themselves, would be able to rest their decision upon basic democratic principles; a judicial tribunal invoking the doctrine of judicial review would not. See A. BICKEL, THE LEAST DANGEROUS BRANCH (1962).

10. Roe, 410 U.S. at 162-63.
11. Id. at 163.

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