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under Roe, it is the moral judgment of the mother and her doctor that determines when the life of the fetus shall be considered so substantial as to preclude abortion. One need not be certain how he feels about an abortion at the end of the six weeks or 20 weeks to approve of the decision. It is enough to feel that the answer may depend on the woman's age, her marital situation, her financial circumstances and a large number of other factors. It is in light of all these factors, which no statute can incorporate, that the Court has in effect allocated the choice for the first five or six months after conception to the mother and her doctor. It has not decided that the fetus has no moral claim within this period, but simply that the fetus has no legal claim that the state can enforce. This allocation of choice among the mother, the state and the Court was wholly consistent with constitutional precedent and reasoning.


UNDER THE FOURTEENTH AMENDMENT A. A Conceptual Framework That Does Not Fit

Despite contentions that the Court in Roe simply followed its own sociopolitical predilections, it should be evident by now that what it followed was an established line of cases and principles, and that that path led it to the difficult but inescapable job of evaluating the state's interest in the abortion decision. We have not attempted a full defense of the Court's resolution of that issue. The important point for this discussion is not what the Court ultimately decided. What is critical is that if the Court was not to evade both its own precedents and the strong, constitutionally based policy underlying those precedents, it had to weigh the state's interest against the constitutional requirement that it be a compelling one.

If precedent and principle adequately supported the Court's decision in Roe, albeit not compelling it,61 what explains the impression shared by many observers that the Court was asserting a free-wheeling power to strike down state legislation that it considered unwise? Surely much of the 60 The situation of the plaintiff in Doe is illustrative:

She was a 22-year-old Georgia citizen, married, and nine weeks pregnant. She had three living children. The two older ones had been placed in a foster home because of Doe's poverty and inability to care for them. The youngest, born July 19, 1969, had been placed for adoption. Her husband had recently abandoned her and she was forced to live with her indigent parents and their eight children. She and her husband, however, had become reconciled. He was a construction worker employed only sporadically. She had been a mental patient at the State Hospital. She had been advised that an abortion could be performed on her with less danger to her health than if she gave birth to the child she was carrying. She would be unable to care for or support the new child. 410 U.S. at 185.

61 Professor Ely states that Roe and Doe represent a quantum jump" rather than an incremental development in constitutional doctrine. Ely, supra note 3, at 936 n.93. Whether Roe and Doe represent a "quantum jump" is, of course, a conclusion to be drawn largely from how a student of the Court's decisions reads the preceding decisions. Narrowing the decisions from Meyer through Eisenstadt certainly allows one to draw a “quantum jump" conclusion. This article demonstrates that Roe and Doe are incremental developments in constitutional doctrine.



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answer lies in the Court's recent tendency to justify its decisions under the fourteenth amendment in terms of their relationship either to other specific provisions of the Constitution or to the more obvious political assumptions of democratic government. The language of the Court in the recent case of San Antonio Independent School District v. Rodriguez is illustrative:

The lesson in these cases in addressing the question now before the Court is plain. It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus the key to discovering whether education is "fundamental” is not to be found in comparisions of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. Eisenstadt v. Baird, 405 U.S. 438 ... (1972); Dunn v. Blumstein, 405 U.S. 330 . . . (1972); Police Department of the City of Chicago v. Mosley, 408 U.S. 92 (1972); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535... (1942). 62

The fact of the matter is that, while this language may justify a refusal to treat education as a fundamental right, it will not explain a number of cases recognizing rights that the Court has no intention of abandoning, as the citation of Skinner and Eisenstadt makes clear. At least it will not explain these cases unless the notion of rights "implicitly guaranteed” is given a scope so broad as to make deceptive the suggestion that the Court's hands are tied by plain words and obvious implications. The Court has recently construed decisions in the area of marriage, procreation and child rearing as based on a right of privacy implied by that "penumbra" of the Bill of Rights which it first discovered in Griswold v. Connecticut.63 Yet surely Justice Douglas' reliance on claimed overtones of specific amendments in recognizing a right of marital privacy in Griswold cannot obscure the fact that neither abortion, contraception, sterilization, marriage, divorce, nor child rearing falls in a definable category closely related to the protections of the Bill of Rights. And there is no other constitutional provision, aside from the fourteenth amendment, on whose words one can hang the recognition of over 50 years of individual rights in these areas.

To admit so much is not, however, to weaken the defense of half a century of precedent in the area of "privacy" rights. There was no need in Griswold or in the abortion decision to strain to find the result dictated by the “penumbra" of the first, third, fourth and fifth amendents, as Justice Harlan's concurrence in Griswold underscores:

the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values “implicit in the concept of ordered liberty,Palko v. Connecticut, 302 U.S. 319, 325 ....

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While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amend

ment stands, in my opinion, on its own bottom.64 This willingness to rely, for standards of judicial review of state legislation under the fourteenth amendment, on basic values related by principle and tradition to central, widely accepted, organizing concepts of our societywhether the roots of these values are written or understood and whether they are political or social-has a claim in history and logic at least as strong as the claim of those who would limit judicial review to explicit provisions of other parts of the Constitution or to these supplemented only by the most obvious political preconditions of democratic government. B. The Historic Debate About the scope of Judicial

Review Under the Fourteenth Amendment The disagreement between Justices Douglas and Harlan as to how to justify the Griswold decision continued a debate about conceptual frameworks for judicial review under the fourteenth amendment which had begun decades earlier. In the background were decisions of the Supreme Court in the early years of this century striking down various forms of economic regulation on the ground that the asserted state interests in health, safety, or morality did not justify interfering with private interests in freely contracting, in carrying on one's business as one pleased, or most generally in doing as one "likes so long as he does not interfere with the liberty of others to do the same."85 The high watermark of this judicial interference in what we all now take to be legitimate legislative activity may have been Lochner v. New York,66 decided in 1905, striking down a state statute that limited the hours that a baker could work to 60 per week. The Court's opinion was premised at least as much on its finding that the state interest asserted was specious or illegitimate as on any special importance it attributed to the private interests involved.

Since the 1930's the Court has vigorously denied the propriety of such searching judicial scrutiny or "second-guessing” of the reasons justifying most cases of state regulation of private activity. Except where it has found particularly “fundamental" private interests to be at stake, it has applied to state legislation an extremely tolerant standard of review, sustaining under the fourteenth amendment any noninvidious statute that could even arguably be justified by a legitimate state purpose.87 But substantially all members of the Court through the ensuing years have continued to believe that some private interests require strict judicial review of the needs justifying state statutes. They have divided on a subsidiary issue: what form of

04 881 U.S. at 500.
65 Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).
86 id.
67 See Gunther, supra note 21, at 8.



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words, if any, will so define the class of specially protected interests as to guarantee adequate judicial deference to state legislatures and to foreclose any return to holdings like Lochner. About this, there has been heated debate.

In one camp have been found, prominently, Justices such as Cardozo, 68 Frankfurter and Harlan, each of whom has emphasized the uncodified quality of the fourteenth amendment. The long-revered traditions and the widely shared values of our society may be the source book of judicial protection under the fourteenth amendment, they have argued, but no complete written compilation of these interests exists or will exist:

The Amendment neither comprehends the specific provisions by which the founders deemed it appropriate to restrict the federal government nor is it confined to them. The Due Process Clause of the Fourteenth Amendment has an independent potency, precisely as does the Due Process Clause of the Fifth Amendment in relation to the Federal Government....

A construction which gives to due process no independent function but turns it into a summary of the specific provisions of the Bill of Rights would ... assume that no other abuses would reveal themselves in the course of time than those which had become manifest in 1791.69 [T]hrough the course of this Court's decisions (due process] has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. ...

... It ... recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.70

Justice Black was the leading exponent of a contrary view: that the due process clause of the fourteenth amendment incorporated all of the Bill of Rights but only those rights.71 To him, what was uncodified was openended and what was open-ended was unrestrained.

I fear to see the consequences of the Court's practice of substituting its own concepts of decency and fundamental justice for the language of the Bill of Rights as its point of departure in interpreting and enforcing that Bill of Rights....

[T]his formula also has been used in the past, and can be used in the future, to license this Court, in considering regulatory legislation, to roam at large in the broad expanses of policy and morals and to trespass, all too freely, on the legislative domain of the States as well as the Federal Government.

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88 See, e.g., Palko v. Connecticut, 302 U.S. 319 (1937).
89 Adamson v. California, 832 U.S. 46, 66-67 (1947) (Frankfurter, J., concurring).
70 Poe v. Ullman, 367 U.S. 497, 542-43 (1961) (Harlan, J., dissenting).

71 Justices Rutledge and Murphy advocated yet a third position, accepting the position of Justice Black with regard to inclusion of the Bill of Rights but, with respect to exclusion of other interests, adding the caveat that the due process clause is not "entirely and necessarily limited by the Bill of Rights." Adamson v. California, 332 U.S. 46, 124 (1947) (Murphy, J., dissenting).



... [To) pass upon the constitutionality of statutes by looking to the particular standards enumerated in the Bill of Rights and other parts of the Constitution is one thing; to invalidate statutes because of application of “natural law" deemed to be above and undefined by the Constitution is another.72

The outcome of this debate has been an uneasy compromise. A majority of the Court has, for some years, declined to accept the apparently undemocratic implications of the conceptual framework adopted by Justices Cardozo, Frankfurter and Harlan. At the same time, there has never been a majority prepared to agree with Justice Black either that the Framers of the fourteenth amendment intentionally made any or all of the Bill of Rights applicable against the states or that, in all other cases, duly enacted state statutes that were neither wholly arbitrary nor discriminatory were proof against attack under the broad language of the fourteenth amendment. In recent years a majority has displayed a preference for justifying its actions in terms of explicit provisions of the Constitution or plain implications of a democratic form of government;18 but it has neither pretended that its actions have been mandated by the decisions of the Framers of the fourteenth amendment nor hesitated to reach results that would have surprised even a careful reader of the document-invalidating, for example, punishment for narcotics addiction,74 residency requirements for welfare benefits,76 and filing fees as a bar to criminal appeal76 or state elections,77 as well as the wide array of laws in the area of marriage, procreation and child rearing which we have been considering.

C. The Choice of Conceptual Frameworks for Judicial Review

Under the Fourteenth Amendment In the final analysis, each Justice of the Court must decide for himself where he will stand on the continuum lying between the positions marked out by Justices Cardozo, Frankfurter and Harlan, on the one hand, and Justice Black, on the other. Continuing to speak in terms that suggest compelled application of more explicit provisions of the Constitution or of only very obvious implications of a democratic form of government does serve the purpose of making less plain the deep-seated dilemma of judicial review in a democratic setting. But the dilemma will not be less for those who recognize that the Court admittedly chooses what provisions of the Bill of Rights it will apply against the states,78 that what is implicit in our

72 Id. at 89-91 (Black, J., dissenting) (footnotes omitted).

78 See, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968); Robinson v. California, 370 U.S. 660 (1962); NAACP v. Alabama, 357 U.S. 449 (1958).

74 Robinson v. California, 370 U.S. 660 (1962).
76 Shapiro v. Thompson, 394 U.S. 618 (1969).
76 Griffin v. Illinois, 351 U.S. 12 (1955).
77 Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).

78 Compare Duncan v. Louisiana, 391 U.S. 145 (1968) (affirming that the sixth amendment right to trial by jury in all criminal cases is incorporated in the fourteenth amendment), with Hurtado v. California, 110 U.S. 516 (1884) (rejecting a claim that the fifth

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