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Congressional hearings doubt still remains as to the most basic meaning and effect of the amendments."
II. EFFECTS ON CONSTITUTIONAL GUARANTEES OF INDIVIDUAL LIBERTIES
Of course, the Constitution is amendable; those guarantees (of
amending process. The proposed anti-abortion amendments would all have a grave impact on the existing Constitution ; each would repeal some of the guarantees of personal liberty now protected by the Constitution. Passage of any constitutional amendment has the dual effect of repealing all inconsistent portions of the existing Constitution and invalidating inconsistent statutory law." When an amendment is passed for the express purpose of overturning a Supreme Court decision founded in constitutional doctrine, it acts to repeal whatever portions of the Constitution compelled the Court's decision. Since the results in Roe and Doe were grounded in the Constitution's guarantees of personal freedom, it is those guarantees that will be weakened by the passage of the proposed amendments. The constitutional guarantees of liberty may be amended or repealed.22 The amendment power contained in article V of the Constitution 23 is nearly limitless. The only restriction which the Constitution now places on amendments forbids reapportioning representation in the Senate without permission of all states whose representation will be decreased.25
The question of whether other limits inhere in the nature of the Constitution itself has periodically been raised in litigation. The most lively controversy concerned the eighteenth amendment establishing prohibition. An attempt was made in the National Prohibition Cases 2 to have the entire amendment declared unconstitutional as outside the power conferred in article V. In conclusory language, the Court unanimously found the eighteenth amendment was within the scope of article V. Two years later the Court heard a similar challenge to the nineteenth amendment granting women the right to vote.?" Again the Court unanimously rejected the argument that certain matters could not be treated in amendments. These cases together imply that the Constitution contains no internal limits on the reach of the amendment process.
The question presented by the proposed anti-abortion amendments, then, is not whether withdrawing recognized constitutional guarantees is feasible but whether it is wise. None of the fundamental guarantees has yet been withdrawn. The sponsors of these amendments propose to take that step. To understand how existing constitutional guarantees would be weakened or destroyed by this move, it is necessary to examine the constitutional basis for the holdings in Roe and Doe.
19 The Senate Subcommittee on Constitutional Amendments, which began hearing testimony in March 1974, has heard eighty-three witnesses. Planned Parenthood-World Population: Washington Memo, July 25, 1975. Only three days of hearings have been published. Hearings on S.J. Res. 119 and S.J. Res. 130 Before the Subcomm. on Constitutional Amendments of the Senate Comm. on the Judiciary, 93rd Cong., 2nd Sess. Abortion, pt. 1 (1974) (hereinafter Senate Hearings).
20 Comments of Anthony Amsterdam, "Constitutional Scholars Comment," supra note at E1303.
21 Orfield. Amending the Federal Constitution 12 (1942). 22 Id. at 22-27.
23 “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when three fourths of the several States, or by Conventions in three fourths thereof, as one or the other mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.".
24 The original Constitution contained two clauses which could not be amended until 1808. The first prevented Congressional restrictions on immigration and limited Congressional power to tax immigration. The second prohibited income tax. U.S. Const. arts. I and V.
25 U.S. Const. art. V.
A. THE RIGHT TO PRIVACY
The explicit constitutional foundation for Roe and Doe is the line of cases protecting certain zones of personal privacy from state instrusion.28 The right to privacy has long been recognized as inherent in several specific constitutional protections of individual freedom. In Roe the Supreme Court found that the right to privacy is implicit in the "fourteenth amendment's concept of personal liberty and restrictions on state action." 29 Other case have held that individual interests in privacy are protected by the first 30 and ninth amendments and in penumbras created by the Bill of Rights as a whole. Whatever its source, the Court has held that the right to privacy is both "fundamental" and "implicit in the concept of ordered liberty."
The right to privacy restricts governmental intrusion into certain areas affecting the most intimate aspects of personal life. Traditionally, this right has been used to protect individual freedoms in overlapping areas of family and sexual matters. The right of parents to decide how to educate their children, the right to procreate, the right to marry,34 the right to marital privacy," and the right to decide when to bear and beget children are all protected by the privacy doctrine. The protection the Constitution affords such matters is not absolute. What the Constitution does demand is a compelling state interest to justify state intervention into these otherwise private zones of decision-making.39
The proposed anti-abortion amendments necessarily threaten the freedoms protected by the privacy doctrine. Most directly threatened are the holdings in Griswold v. Connecticut 40 and Eisenstadt v. Baird," which establish the right to marital privacy and the right to make procreative decisions. In Griswold the Supreme Court held that a state proscription on the use of contraceptives impinges unacceptably on the intimate relationship between husband and wife.
In Baird the Court considered another ban on contraceptives and concluded that all individuals, married or single, have the right to decide when to bear and beget children. These two cases and Roe stand for the same principle: that, short of a compelling interest, states may not interfere with private decisions about reproduction. The options of both contraception and abortion are essential to that principle. When states outlaw contraception or abortion they interfere with the intensely personal decision of when they assume the responsibilities of parenthood. Whether the choice is reduced because contraception is illegal or because contraception fails and abortion is illegal, the result is the same: disruption, often violent, to personal relationships and plans.“
A court forced to interpret the proposed amendments could attempt to distinguish contraception from abortion on factual grounds, despite the lack of conceptual distinctions. While both contraception and abortion are essential to reproductive freedom, they affect different stages of reproduction. This distinction, however, is weak.“ Spermicides, for example, are used directly before intercourse, while “morning after pills" are usually taken only a few hours after intercourse. The distinction grows dimmer when intrauterine devices (IUD's) are considered.
28 Roe v. Wade, súpra note 1, at 152. For an exploration of right to privacy and the abortion decisions see Heymann and Barzelay, The Forest and the Trees : Roe v. Wade and Its Critics, 53 B.U.L. Rev. 766 (1973) and Testimony of Philip B. Heymann before the Senate Subcommittee on Constitutional Amendments (unpublished). But see Ely, The Wages of Crying Wolf: A Comment on Roc v. Wade, 82 Yale L.J. 920 (1937).
2 Roe v. Wade, supra note 1, at 153. 30 Stanley v. Georgia, 394 U.S. 557 (1969). 81 Griswold v. Connecticut, 381 U.S. 479 at 484–485 (1965) (Justice Goldberg concurring). 22 Griswold v. Connecticut, supra, note 31.
83 Roe v. Wade, supra note 1 at 152. In using these phrases the Supreme Court is quoting from Palko v. Connecticut, 302 U.S. 319 (1937).
34 Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925)
35 Skinner v. Oklahoma, 316 U.S. 535 (1942).
42 See Roe v. Wade, supra note 1 at 153 (majority) and at 213 (Justice Douglas concurring).
43 See Kistner, Gynecology, Principles and Practice 670–704 (1971) [hereinafter Kistner, Gynecology) and Note-Criminal Law-Abortion The "Morning-Áfter Pill” and Other Pre-Implantation Birth Control Methods and the Law, 46 Ore. L. Rev. 211 (1967).
The IUD is commonly thought of as a contraceptive; it is lumped together with birth control pills and the diaphragm as a method of birth control. Yet technically the IUD is an abortifacient; it acts only after the fertilized zygote moves through the fallopian tubes to the uterus.“ Courts considering state prohibitions on contraceptives provoked by the passage of these amendments could find the colloquial distinction between abortion and contraception convincing. But the passage of these amendments would at least raise questions about the continued vitality of Griswold and Baird.
Whether or not holdings in Griswold and Baird remain vital, the amendments present a direct practical threat to reproductive freedom beyond the issues considered in Roe. Since biologists consider both IUD's and “morning after pills" to be abortifacients, their use could well be affected by the amendments. The Senate subcommittee was repeatedly questioned witnesses about the effect of the amendment on IUD's and “morning after pills.” 15 The answers given were unsatisfactory and leare open the possibility that these methods of birth control, as well as any which might be developed in the future, would be prohibited by the amendments. 48
To a lesser extent these amendments weaken the entire privacy doctrine. From Meyers v. Nebraska 67 through Roe v. Wade, the cases systematically define an area protected from arbitrary governmental intervention. The cases
erlap and interlock as they move from interfamily decisions about education and on to marriage and reproductive freedom. Together, the cases create a consistent doctrine. The proposed amendments carve out an arbitrary exception. Perhaps the exception is small and containable. However, the entire doctrine makes less sense when it must be reconciled with an exception which cannot be distinguished on a conceptual basis. Thus the doctrine would be a weaker buttress against state intervention in private matters of family, marriage and sex.
B. THE FIRST AMENDMENT RELIGIOUS FREEDOMS Although the Roe Court explicitly relied on the right to privacy, the result could have been premised equally well on the first amendment's guarantees of religious freedom."
The Supreme Court has recognized the difficult religious nature of the abortion controversy.' In Roe, the majority took note of the significance of religious training in determining attitudes toward abortion, and the conflict among religions over the questions raised by abortion. Because religion and the regulation of abortion are so intimately tied together, attempts to disturb the balance struck in Roe between the legitimate and illegitmate state interests in abortion 62 run afoul of both the establishment and free exercise clauses of the first amendent.
44 Kistner, Gynecology, supra note 43, at 670–704.
45 Sen. Birch Bayh persistently asked questions along these lines. See testimony of Sen. Jesse Helms at 91-3, Rep. John M. Zwach at 147-9 and Sen. Dewey Bartlett at 423–7 in Senate Hearings, supra at note 19. 48 See, for example, this exchange between Sens. Bayh and Bartlett:
Senator BAYH. Thus would you suggest that the intrauterine device should be made illegal because it deals with the fertilized egg in that manner [by preventing implantation] ?
Senator BARTLETT. Well, I feel that there are many theologians and many doctors who feel that those are not abortive devices, that the implantation must take place, and that in the continuing process there are fertilized eggs which do not implant.
Senator BAYA. Do we not have to be consistent? I am trying to find the answers, but it seems to me that whether it is a Senator or a theologian or a doctor who says "Senator Bayh, life begins when the sperm and the egg join in fertilization," then if we are going to be consistent, and you say you are not supposed to prohibit life, then almost per se you have to logically follow in your reasoning that any effort taken, whether it is commonly called morning after pill or the intrauterine device, that those are really abortive, and thus do, indeed, take life. Is that not consistent logic?
Senator BARTLETT. Well, Mr. Chairman, I think the Buckley amendment deals with life after implantation. What I would hate to see this committee do is become involved in a lot of legalistic specifics and ignore the basic issue of the thousands and thousands of human beings that are killed today by regular abortions, long after implantation.
Senate hearings, supra note 19 at 423-21.
49 The most complete analysis of Roe as a first amendment case is Tribe. "Toreward : Toward a Model of Roles in the Due Process of Life and Law," 87 Harv. L. Rev. 1 (1973) (herein Tribe, Toward a Model.)
See United States Commission on Civil Rights, Constitutional Aspects of Child Bearing (April 1975) at 27-43 (hereinafter U.S. Civil Rights Commission).
50 Supra, note 1 at 116 and 160-1. See U.S. v. Vuitch, 402 U.$. 62 (1971) at 78–79 and Walz 1. Tax Commission, 397 U.S. 664 (1970) at 695 (Justice Harlan concurring).
61 Supra note 1 at 116 and 160-1. 52 See Sec. I infra.
A constitutional amendment prohibiting women and physicians from choosing abortions can be seen as creating a direct conflict with the first amendment's injunction against the establishment of religion. In Committee for Public Education v. Nyquist,á* the Supreme Court recently spelled out the requirements of a law challenged under the establishment clause. The Court said:
... to pass muster under the Establishment Clause the law in question, first must reflect a clearly secular legislative purpose, e.g., Epperson v. Arkansas, 393 U.S. 97 (1968), second, must have a primary effect that neither advances nor inhibits religion, e.g., McGowan v. Maryland, 366 U.S. 420 (1961); School District of Abington Township v. Schempp. 374 U.S. 203 (1963), and third, must avoid excessive governmental entanglement with religion, e.g., Walz v. Tax Comm'n, 397 U.S. 664 (1970)."
Restrictions on abortion in pre-Roe state laws and in the proposed anti-abortion amendment fail to pass this three-part test.
Restrictions more stringent than those approved in Roe fail the first requirement of the Nyquist test: they serve no legitimate secular purpose. In Roe, the Court drew a precise line between legitimate and illegitimate state interests in abortion. Analyzing possible state interests, the Court concluded that only interests in maternal health and potential life could justify restrictions on the rights of women and their physicians to choose abortions. The Court went further and decided what kinds of restrictions could reasonably advance those interests. The Court concluded that during the first trimester neither interest could justify regulations of any kind ; in the second trimester an interest in maternal health could jusify some state supervision of abortion, but not outright prohibitions; and in the third trimester the interest in potential life could justify prohibitions. To find justifications for the kind of restrictions Roe outlawed, it is necessary to look beyond the legitimate state interests carefully analyzed in Roe.
The reason for such restrictions can be found only by reference to religious dogma, i.e., the belief ascribed to by some but not all religions, that an embryo from the time of fertilization onward is fully a human being.
Post-Roe litigation over Medicaid payments for abortion illustrates the absence of secular justification for restrictive laws. Both federal district and circuit courts have faced the question of what legitimate state interests are served by denying poor women access to abortions and have found no rational reason to support regulations which limit the right to choose abortion.58 Maternal health is no justification, since continuing a pregnancy to term is more dangerous than an early abortion. In New York City, for example, from 1970–1972, the death rate for first trimester abortions was 1.2 per 100,000. During the same period, the death rate for non-abortion, pregnancy-related complications was 26.9 per 100,000 live births." Nor is economy, the classic reason for denying government benefits, a justification for anti-abortion regulations. A pregnant woman requires medical treatment; the options are an abortion or pre-natal care, assistance with the delivery, and hospitalization during the post-partum period. The abortion, usually a simple out-patient procedure during the first trimester, is far cheaper than forcing women to continue their pregnancies by denying Medicaid benefits. Eighty-five per cent of all abortions are during the first trimester at an average cost of $150, Abortions performed in the second trimester cost approximately $350.5" In contrast, the average cost for a normal delivery in a public hospital is
53 413 U.S. 756 (1972). 54 11. at 773.
55 See Roe v. Wade, supra note 1, at 160–1; National Conference of Catholic Bishops, l'nited States Catholic Conference, Documentation on the Right to Life and Abortion (1974) in Senate Hearings supra note 19 at 181–226; Testimony of Bishop James Armstrong. Rabbi Balfour Brickner and Rabbi J. David Bleich, Senate Hearings, supra note 19, at 257-9. 268-78 and 287-314.
68 Doe v. Beal (Nos. 74–1726 and 74-1727, 3rd Cir. July 21, 1975) ; Doe v. Rose, 499 F. 20 1112 (10th Cir. 1974); Wulf v. Singleton, 508 F. 2d 1211 (8th Cir. 1974); Roe v. Norton, 380 F. Supp. 726 (D. Conn. 1974); Doe v. Westby, 383 F. Supp. 1143 D.S.D. (1974), vacated and remanded 95 S. Ct. 1385 (1975); Doe v. Rampton, 366 F. Supp. 189 (D. Utah 1973); and Klein v. Nassau County Medical Center, 347 F. Supp. 496 (E.D.N.Y. 1972).
57 Pakter et al., Impact of the Liberalized Abortion Law in New York City on Pregnancy Associated Deaths-A Two Year Experience, Paper presented at the Annual Meeting of the American Public Health Association in San Francisco (1973). These statistics reflect experiences during the earliest years of legalized abortion. As the medical profession becomes more used to performing abortions the number of abortion related deaths should decrease. See Roe v. Wade, supra note 1, at 149.
68 See Dandridge v. Williams, 397 U.S. 471 (1970), 59 H.E.W. Memorandum. Effects of General Provision 431 of the Labor-H.E.W. Act, 120 Cong. Rec. 19,678 (daily ed., Nov. 20, 1974).
$556; in a private hospital the cost is $798.6 The strength of these facts force the Third Circuit, sitting en banc recently in a Medicaid/abortion case, to conclude:
“We can find [no justification). Economy will not do, since in most cases nontherapeutic abortion is the cheapest method of treatment. Nor will protection of the recipient's health ... suffice; the state itself admitted at oral argument that non-therapeutic abortion is the least dangerous alternative for pregnant women, at least during the first trimester.”
Restrictive abortion laws also fail the second part of the Nyquist test. The primary effect of restrictions is to employ the power and authority of the state to enforce a religious doctrine. Strength for opposition to abortion springs from the belief that abortion involves killing a human being. Yet the conclusion that killing an embryo or retus is taking a human life depends on the resolution of an inherently religious question. This question is not "when does life begin?" as it is often phrased. There is no question that an embryo or fetus is “living,” but so is the egg before it is fertilized by the sperm, so are hearts and lungs.92 Rather, the question is, what precisely is a human being? And that key question, at this time and place in history, is answered only by religious doctrine. Phrased somewhat differently by Professor Laurence Tribe: *
.. the question when human life truly begins asks not for a discovery of the point at which the fetus possesses an agreed-upon set of characteristics which make it human, but rather for a decision as to what characteristis should be regarded as defining a human being. And, at least at this point in the history of industrialized Western civilization that decision in turn entails not an inference or demonstration from generally shared premises, whether factual or moral, but a statement of religious faith upon which people will invariably differ widely."
Not all legislation about life and death falls into the same first amendment pitfalls as restrictions on abortion. Birth, for example, can be used as a legal landmark without advancing a particular religious belief. By general moral consensus the wilful killing of a child, once born, is murder. Religious convictions may lie at the roots of this conclusion, but the consensus is so universal and certain, that birth can be used as a demarcation without favoring one set of religious beliefs or penalizing another.
Other grounds justify using birth as a legal delineator. The penalties attached to murder are the heaviest imposed in criminal law. The need for clear lines to determine when these sanctions attach justifies looking to an obviously identifiable event such as birth. Traditionally, courts have struck down criminal and civil sanctions which are based on language so indefinite that it violates the due process clause. Under the constitutional void-for-vagueness doctrine, the Supreme Court has developed two tests to determine whether a particular statute is impermissibly vague.
Statutory language must notify those of ordinary intelligence of the conduct proscribed or required by law and must supply sufficient judicial or administrative standards to curb governmental discretion in enforcing the law.' Birth satisfies these requirements. Ordinary citizens and public officials can know with certainty whether birth has occurred and act accordingly. Earlier points such as fertilization, viability and quickening, which are subjective or undiscernible, cannot provide sufficient guidance.
Regulations outside the limits set in Roe and Doe also fail the third test for legislation challenged under the establishment clause. Past and current attempts to restrict abortion encourage the excessive entanglement of government and religion. Debates over abortion have engendered precisely the political strife and political divisions along religious lines the Supreme Court has consistently condemned as excessive entanglement. The controversy over the proposed anti
80 Jaffe, Short-Term Costs and Benefits of United States Family Planning Programs, Studies in Family Planning, Vol. 5, No. 3, March 1974. These are the figures for Medicaid payments for deliveries.
81 Doe v. Beal (Nos. 74-1726 and 74-1727, 3rd Cir., July 21, 1975).
65 See Papachriston v. City of Jacksonville, 405 U.S. 156, 165–70 (1972); Giacco v. Pennsylvania, 382 U.S. 399, 402-3 (1966); and Lanzetta v. New Jersey, 306 U.S. 451 (1939).
66 See Note, The Void for Vagueness Doctrine, 109 U. Penn. L. Rev. 67 (1960), and Developments in the Law, Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1193, 1253-58 (1974),
67 Walz v Tax Commission, supra note 50 and Lemon v Krutzman, 403 U.S. 602 (1971). See in particular Justice Harlan's concurrence in Walz v. Tax Commission.