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ABORTION AND THE CONSTITUTION
tion to appreciate that certain individual rights are fundamental. Such reasoning is implicit in the Bill of Rights, 869 the "Civil War” amendments, 370 and the franchise amendments, 371 as well as in the proposed Equal Rights amendment. Consistent with this philosophy, the Supreme Court itself has shown little hesitation protecting these rights in appropriate cases. 372
The right to life is clearly among those “so rooted in the traditions and conscience of our people as to be ranked as fundamental” and is given explicit protection in the fifth and fourteenth amendments.s Thus, to deny an individual is a person and, therefore, not entitled to the rights of life, liberty, and property, is to reject the egalitarian philosophy embodied in the Declaration of Independence and the fourteenth amendment. The right to life is absolutely essential to the preservation of a free society; it is the foundation of all described by Mr. Justice Brennan, concurring in Furman v. Georgia, 374 as the “right to have rights." Whether this right shall be protected at all stages of human development is the issue to be decided.
3. The Dangerous Implications of Roe and Doe
In Roe and Doe the Supreme Court exercised the power to say who is—or, more importantly, who is not—a person within the meaning of the Constitution. The awesome nature of this power should be abundantly clear; the power over life and death is indeed the ultimate power.375 While the Court does have such power, the validity of its
369. U.S. CONST. amends. I-X.
372. E.8., Weinberger v. Wiesenfeld, 419 U.S. 822 (1975) (sex-based discrimination); Brown v. Board of Educ., 347 U.S. 483 (1954) (segregation).
373. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
375. Cf., Dredd Scott v. Sandford, 60 U.S. (19 How.) 393, 577-78 (1857) (Curtis, J., dissenting). The relevance of Justice Curtis' dissent in Dredd Scott to the exercise of judicial power in Roe is unmistakable:
Before examining the various provisions of the Constitution which may relate to this question it is important to consider for a moment the fundamental nature of this inquiry. It is ... whether the Constitution empowered Congress to create privileged classes who alone are entitled to the franchises and privileges of citizenship. .. If it be admitted that the Constitution has enabled Congress to declare what free persons . . . shall be citizens of the United States, it must at the same time be admitted that it is an unlimited power. If this subject is within the control of Congress it must certainly depend wholly upon its discretion. For certainly, no limits of that discretion can be found in the Constitution, which is wholly silent concerning it; ... the necessary consequence [being] that the Federal Government may select classes of persons ... who alone can be entitled (to the rights of citizenship). (emphasis sup
plied) There is, however, one difference between Dredd Scott and Roe: the former rests upon a
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exercise is open to serious question where the nature of the inquiry and the sought-after results lead inexorably to the creation of legal distinctions which have no basis in reality. As long as the power to make such distinctions remains in the hands of any governmental body, 376 even those of the “least dangerous branch,"377 the ultimate safety of any group of individuals whose existence or physical' need threatens to exacerbate the “profound problems” of others is in question.378
The significance of a judgment dealing with fundamental rights which is based upon the relative values of the parties in the eyes of the Court was underscored by Justice Douglas' use of Buck v. Belß79 to support the part of his concurring opinion dealing with the existence of the state's power to protect its own interests. In Bell it was held that the state has a compelling interest in reducing the number of mentally retarded individuals in society. The Court, per Justice Holmes, held that a woman committed to a state mental institution may be sterilized to prevent her bearing retarded children. In addition to indicating that the woman's freedom of choice in such a situation is not inviolate, Justice Holmes' words manifest the Court's willingness to exercise the same type of judgment earlier identified by Marshall McLu
fairly solid basis in constitutional history, the latter does not. Although Justice Curtis argued persuasively that persons of African descent could be "citizens" as long as some states considered them to be such at the time the Constitution was ratified, Chief Justice Taney pointed out that history was replete with intent to exclude that race from the status of “citizen." In Roe the Court invalidated a state-devised program of protection for the unborn; because the Court could not do so, it did not attempt to point to any history or past interpretation of the Contsitution which required exclusion of the unborn from the status of “person."
376. Loan Ass’n v. Topeka, 87 U.S. (20 Wall.) 655, 662 (1875): It must be conceded that there are such rights in every free government beyond the control of the State. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism.
377. If it is true that the fundamental rights of the person may be withheld by the simple expedient of judicially constructed definition, the "least dangerous branch” has become, by far, the most powerful, for its adversarially inspired definitions, once woven into the fabric of the Constitution, can only be erased by the cumbersome machinery of constitutional amendment or by appeal to the Court itself.
378. As Marshall McLuhan has noted: Since all current secular discussion of abortion takes place on quantitative assumptions relating to human convenience, there can be rio question that the arguments in favor of abortion apply with equal validity to the status of all other living beings. The same assumptions of more or less convenience or inconvenience must apply to the decisions about continuing or suppressing the
existence of any members or groups of all human or non-human populations. M. McLuhan, Private Individual v. Global Village, in ABORTION AND SOCIAL JUSTICE 246 (Hilgers and Horan ed. 1972).
379. 274 U.S. 200 (1927).
ABORTION AND THE CONSTITUTION
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. (citation omitted) Three generations of imbeciles are enough.382
Through the process of amniocentesis, 283 science has made it possible to predict with an ever-increasing degree of accuracy the characteristics of unborn infants, including possible physical or mental deficiencies. Therefore, it does not seem unreasonable to predict that, under certain conditions, the state might very well be in a position to demand that a woman be aborted as a “lesser” sacrifice in order to prevent her bringing "deficient” children into the world. In fact, it might be argued that, given the right “compelling” interest, the principle which supports compulsory vaccination is "broad enough” to include compulsory abortion. If the unborn are not persons, as the Court held, or human beings, as the appellant argued,384 what “of value” would be destroyed?385 Although most would recoil at such a suggestion,888 it is difficult to ignore the fact that the merits of some degree of compulsion in this area are being extolled by many respectable parties in the scientific and medical communities. 387 If such suggestions are to be subjected to the searching inquiry fitting such matters it is imperative that a thorough examination be made of the basis for much of the current debate over the value of human life—the notion that the
382. Buck v. Bell, 274 U.S. 200, 203 (1927). One might inquire just how Justice Holmes, or anyone else for that matter, could be in a position to declare: (1) what is "best" for all the world; (2) who is “manifestly unfit;” and most importantly (3) who shall or shall not be able to continue their own kind. It is incongruous that any member of the Supreme Court would go so far as to condone such reasoning today, especially one who feels that “valleys, alpine meadows, rivers . ., or even air” should be given legal personality to protect them from the "destructive pressures" of modern life. Sierra Club v. Morton, 405 U.S. 704, 727, 743 (1972) (Douglas, J., dissenting).
383. This is a process by which a sample of the amniotic fluid surrounding the fetus is withdrawn. The cells of the fetus suspended in the fluid are stained and the chromosomes mapped in order to determine the nature of any possible infirmity.
384. Brief for Appellants at 119, Roe v. Wade, 410 U.S. 113 (1973).
387. E.g., Hardin, Parenthood: Right or Privilege? 169 SCIENCE 427 (1970); Williams, Our Role in the Generation, Modification, and Termination of Life, 124 ARCHIVES OF INTERNAL MED. 214 (1969). See also, CALIFORNIA MEDICINE, supra note 24.
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quality of life, rather than its existence per se, is the supreme virtue. 888 The concept is an interesting one, to be sure, but what are its implications?
In his testimony before the Senate Select Committee on Aging, Representative Walter W. Sackett, M.D.389 testified on some of the motivating factors which led him to introduce a bill to legalize “death with dignity,” a common euphemism for euthanasia390 in Florida.391 Captioned “Cost-Benefit Question,” Dr. Sackett's testimony revealed that there are 1500 severely retarded individuals in Florida's mental institutions who cost the state a great deal of money each day they remain alive.392 Dr. Sackett asked: “Now where is the benefit in these 1,500 severely retarded, who never had a rational thought . . . ?»393 Rather, he continues, society should concern itself with those whose lives are “useful."394
Similarly, Nobel Laureate James Watson has suggested that the preservation of the lives of laboratory-conceived children be contingent upon their “normality” in the eyes of the physicians attending their birth.395 Moreover, he would extend the choice to all parents: "[M]ost birth defects are not discovered until birth .... All parents would be allowed the choice that only a few are given under the present
388. Compare Judgment of February 25, 1975, 39 BVerfGI (the “Abortion" case), with Roe v. Wade, 410 U.S. 113 (1973). The West German Federal Supreme Court's opinion, translated in part in an appendix to this article, carefully distinguishes the interests involved in any decision regarding abortion: those of the unborn, and those of the woman. The State's interest is analyzed in terms of its duty to protect these interests. See pp. 1346-48 infra. Although the German case arose from a legislative challenge to a “liberalized” abortion law, its reasoning is equally applicable to the contentions made by the State of Texas in Roe v. Wade-that the state has an obligation to protect unborn life.
The clause of the West German Constitution upon which the Court relied in striking down the revised abortion law is virtually indentical to the provisions of the United States Constitution referring to the right to life. Compare U.S. CONST, amends. V, XIV (“nor (shall any person] be deprived of life"), with GRUNDGESETZ art. 2, para. 2, phrase 1 (1949, amended 1961) (W. Ger.) (“Everyone has the right to life and to physical inviolability") ("Jeder hat das Recht auf Leben und körporliche Unversehrtheit").
389. Member, Florida House of Representatives.
390. In this context “euthanasia” is used in the strict sense to denote the concept of “involuntary” mercy killing. The subject is far too complex to make any further distinctions in this context. It is mentioned only because the rationales upon which its proponents base their contentions bear a striking similarity to those heard in the context of the abortion controversy.
391. H.B. 407, Florida Legislature, 1973 Regular Session. The bill was severely modified in committee.
392. Hearings on Death with Dignity Before the Senate Special Comm. on Aging, 92d Cong., 2d Sess., pt., 1 at 30 (1972).
ABORTION AND THE CONSTITUTION
system . . . [i]f a child were not declared alive until three days after
The thought of one's own life being terminated because it lacks "utility" or "normality” is a sobering one. “Meaningful life," the "quality" of life, and the necessity to be "wanted” are but a few of the rallying points in a "new ethic” which relegates life itself to a position in which it must be balanced against societal values, opinions, and policies which are apt to change with every generation, ideology, or regime.397 In Roe v. Wade and Doe v. Bolton the Supreme Court, perhaps unwittingly, wrote this "new ethic” into the Constitution in the name of personal liberty.
A LIFE-PROTECTIVE AMENDMENT: A LOGICAL OUTGROWTH
OF CONSTITUTIONAL PRINCIPLE
A. What is a "Person"?
At the crux of the controversy over the Supreme Court's decisions in the abortion cases lies the difficult problem of determining who shall be protected as a "person" under the Constitution. The Constitution and its amendments use the word several times,398 yet nowhere is it
396. Watson, Children from the Laboratory, PRISM, May 1973, at 12, 13.
-Macbeth, Act V, Sc. 5
-Hamlet, Act II, Sc. 2.
leased. T. DE CHARDIN, THE PHENOMENON OF MAN 279 (Wall trans. 1959), quoted in, Louisell, Biology, Law and Reason: Man as Self-Creator, 16 Am. J. JURISPRUDENCE 1, 16 (1971). De Chardin's recognition of the fallibility of the human intellect may be profitably compared to the statement of Judge Cassibry in Rosen v. Louisiana State Bd. of Medical Examiners, 318 F. Supp. 1217, 1236 (E.D. La. 1970) (dissenting opinion) to the effect that "human life is a relative" term, its meaning dependent upon the "purpose for which Lit is defined."
398. U.S. Const. art. I, $ 2, cl. 2,3; $ 2, cl. 2,3; $ 3, cl. 3; $ 9, cl. 1,8; art. II,
1. 2,5; art. IV, $ 2, cl. 2; amends. V, XIV, and XXII.