Abortion, the Constitution, & the human life statute
Flaherty, Francis J.
Abortion, the Constitution, & the human life statute FRANCIS J. FLAHERTY As EQUAL RIGHTS AMENDMENTS advocates know, it is no easy matter to muster two-thirds of both houses of Congress and...
...is not at all coy about it...
...He reasons that in Lassiter the Court held that literacy tests for voting do not violate the Fourteenth, yet in Morgan the Court allowed Congress to forbid a New York literacy test on the basis of Section 5 of that Amendment...
...But the problems of Roe v. Wade, the perennial question of the authority of an unelected judiciary in a democratic society, is as befuddling for the legal profession, if not as heartrending, as is the question of the morality of abortion for the public at large...
...The constitutional provisions which insure the insularity and impartiality of federal judges, such as those granting judges life tenure and forbidding diminution of their salaries, also serve to render them unaccountable to the popular will...
...But there is a somewhat fuzzy exception to this general rule, and it is upon this exception that Stephen Galebach has seized...
...They contend that the threat of constitutional 'amendment or of impeachment effectively deters judicial overreaching despite the infrequency with which those devices are employed...
...There are, of course, legal scholars who disagree, but this remarkable consensus in the ordinarily factious legal community should give one pause...
...Like Justice Peckham and his brethren in 1905, the Burger Court in 1973 made a constitutional decision with only the most tenuous of moorings to the Constitution...
...Planned Parenthood and the National Abortion Rights Action League have both launched nationwide campaigns warning of dire consequences if the human life statute is passed...
...This won't make defining obscenity any easier, of course, but at least we know that the courthouse was the proper building to enter...
...Ely's accusation was clear: Roe was a liberal Lochner...
...It is certainly not mentioned in the Constitution, and women, far from being a minority, comprise the majority of voters in this country and can elect pro-abortion legislators if they so desire...
...There are many issues with which the Constitution does not deal, goes the argument, and abortion is clearly one of them...
...If the human life statute passes, states will be free to place greater restrictions on abortion than currently allowed, up to and - including criminalization...
...If abortion were illegal today, and Galebach attempted to legalize it through the same strategy, the issues confronting lawyers and constitutional scholars would be the same ones they now face with the anti-abortion human life statute...
...Where the effect of such actions on the individual can be particularly devastating-as in abortion laws-courts must strictly scrutinize such actions to prevent a tyranny by the majority...
...The judicial activists also point to the Ninth Amendment's explicit command that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'' Constricted constitutional construction is, in this view, more akin to judicial abdication than to judicial usurpation of legislative powers...
...All life, including human life, begins at conception...
...Roe raised troubling questions of judicial encroachment upon legislative prerogatives and launched a desperate search (not for the first time in our country's history) for principles of judicial restraint...
...In other words, there is implicit in the Constitution a model of man, a desire to preserve from governmental depredations the social climate conducive to full human flowering...
...and, given that fact, a public policy toward abortion must be fashioned, as befits a democracy, in the pulling and hauling of the political process...
...Impeachment of federal judges is exceedingly rare, mainly because Article I, Section 3 of the Constitution renders that process exceedingly difficult...
...The Constitution, except under an attenuated and farfeteched reading, simply has nothing to say about abortion...
...Ely has no quarrel with the Marburyv...
...Like most questions which have been asked for centuries, the answer to the question of the proper scope of judicial review is both difficult to find and necessary to know...
...For many public issues, certainly including the volatile issue of abortion, the legal community frets over means not ends, methods not results, process not substance...
...There are very few external restraints on the judicial aggrandizement of power in this country...
...They have seized upon Galebach's proposal only because they have failed, for eight frustrating years, to muster the votes needed for an amendment...
...Advocates of judicial restraint, such as Ely, also stress the unaccountability of courts to the electorate...
...Though the evidence is fragmentary, a fair reading of the record reveals that those nineteenth-century legislators, bent primarily on extirpating state-sponsored racial discrimination in the South, envisioned Section 5 solely as an enlargement of congressional power against those states and not as a diminution of judicial authority...
...But despite its almost certain demise in the courts, the human life statute has a fair-to-good chance of passage in Congress...
...Lawyers simply fret more over process than over practical effect...
...Through legalistic legerdemain, the Justices transmogrified their lack of knowledge into the justification for their decision...
...Persons caught in the maelstrom of such a cause will often employ whatever means are available, with no great thought or weight given to the structural implications of such methods for the future of our governmental system...
...The most recent amendment of that type is the Twenty-Sixth, passed in 1971, which forbids denial of the right to vote on account of age to persons eighteen and older...
...The lack of congressional attention to that Section argues forcefully that Congress meant it only as an interstitial and remedial provision and not as a radical transfer of the power of constitutional interpretation from the courts to Congress...
...In Lassiter the Court upheld a North Carolina literacy requirement for voting against a claim by a black plaintiff that such a requirement was racially discriminatory...
...Typical was the testimony of Dr...
...Roe v. Wade is only the most recent-log thrown on the fire...
...Unfortunately, the issue of abortion-the moral, philosophical, and social aspects of which are almost too much to handle-also has more than its share of legal conundrums...
...That chore is left to their lawyers, and to their opponents' lawyers, and to the constitutional scholars who, though they might fight bitterly among themselves, share a common concern for, or at least an awareness of, such implications...
...Close scrutiny of Galebach's proposal reveals the reasons for this unwonted agreement...
...If Cox considered this issue to be a genuinely factual one, he would presumably permit Congress to overturn Miranda, with the unsettling result that the American system of judicial supremacy would be thrown into disarray...
...To support this view, Galebach cites a number of Supreme Court voting rights cases handed down between ten and twenty years ago...
...Wilfred Caron, general counsel to the United States Catholic Conference, which supports a constitutional amendment banning abortions, has denounced the human life statute as patently unconstitutional...
...As John Hart Ely has remarked, "To the public the Roe decision must look very much like the New York Legislature's recent [ 1973 ] liberalization of its abortion law...
...It is, for lawyers and constitutional scholars, a standard legal problem...
...Writing for the Court, Justice Douglas held that although certain types of literacy requirements for voting might be unconstitutional, they are in general "neutral on race, creed, color, and sex" and justified by the legitimate state interest in extending the franchise only to those citizens who are adequately informed on the issues and the candidates...
...Senator Orrin Hatch (R.-Utah), a staunch anti-abortionist and chairman of the Senate Subcommittee on the Constitution, has often and publicly voiced his doubts about the bill's constitutionality...
...it is both ironic and unconstitutional for courts, under the guise of constitutional interpretation, to frustrate the will of the people and to interfere with the processes of democracy by manufacturing rights not discernible from the text of that document...
...There arose widespread opposition to the decision, and there was an attempt-similar to the human life statute-to overturn the case by a congressional act...
...The guarantee of free speech, for example, is not merely a procedural device to insure that through wide-open and robust debate the truth will emerge, but also a recognition that free self-expression is vital for self-fulfillment...
...As Cox warns, "When the application of the equal protection or due process clause turns on a universal and relatively absolute rule of law not requiring evaluation of the surrounding circumstances or resolution of question of degree, there would seem to be no room for congressional dilution [of rights] because the dilution would not rest upon the kind of finding of fact or judgment of degree to which the deference accorded in Katzenbach v. Morgan is due...
...of Health and Human Services, spoke for the administration when he promised support for "the new concept of defining through legislation when life begins...
...somebody should think about these things, and who better than the profession directly responsible for them...
...their opponents are similarly indifferent to whether prohibition of abortion is achieved by an act of the Texas legislature, a constitutional amendment, or a congressional declaration like Galebach's proposal...
...On the other hand, anti-abortionists are worried by the cool attitude toward the statute taken by Senator Hatch, who's strategically placed to obstruct the bill's progress, and also by the crack in the administration's attitude suggested by the nomination of Sandra Day O'Connor to the Court...
...Moreover, the core question of the abortion controversy, the humanity of the fetus, means that the rights of two persons may be involved in the abortion decision...
...Perhaps the most damning evidence against the human life statute is the sparseness of discussion of Section 5 in the legislative record...
...Professor John Hart Ely of Harvard Law School suggests in his recent Democracy and Distrust (Harvard University Press) that courts should defer to other branches of government in all cases except those undoing a specific constitutional right clearly discernible from the text, or a right of a "discrete and insular" minority that has been historically un- or under-represented in the political process...
...Given the frequent lack of legislative history and the cloudiness of constitutional phrases, judges in many cases simply do not have enough to go on to make their decisions...
...THIS IS A persuasive argument...
...First, anti-abortionists have by their conduct clearly demonstrated their belief that a constitutional amendment, if not the only way to reverse Roe, is clearly the normal and historically approved way of doing so...
...If there is any overarching principle in the Constitution, they contend, it is the principle of democracy...
...This is so because the basic tenet of federalism is that the national government is one of limited powers, with all other powers, expressed or unexpressed, reserved to the states...
...Le Jeune and the other witnesses for their failure "to distinguish between their personal biases and their professional scientific judgments...
...4. Authority in a democracy RATCHET THEORIES, Marbury v. Madison, the proper scope of judicial review: such are the associations lawyers make when the topic is abortion...
...Rosenberg...
...It may be difficult to decide whether obscenity is speech cognizable under the enigmatic First Amendment, but at least it is clear that a law which prohibits obscene books implicates that Amendment's free-speech guarantee...
...regardless of the dictionary one uses, the authority "to enforce, by appropriate legislation" the provisions of the Fourteenth Amendment is not a power to draw the broad contours of that Amendment's guarantees...
...And so, for example, you will find many lawyers, like Ely, who are decidedly in favor of legalized abortion, but adamantly opposed to the judicial legalization of it in Roe v. Wade...
...This debate has simmered and flared for two centuries...
...As is the way with legal scholars, yellowed pages from the Congressional Record and the Federalist Papers, as well as from hoary Supreme Court decisions and tracts penned by venerable legalists, fly back and forth in support of these varied and conflicting claims...
...It is the anti-democratic nature of this danger that most rankles Ely and other advocates of judicial restraint...
...This is a very generous view of congressional authority under Section 5. Suppose, for example, Congress concluded from an exhaustive and bona fide survey of the criminal justice system that the recitation of Miranda rights to suspects affects neither their behavior nor their knowledge of their rights, and thus is a dispensable burden on law enforcement...
...GALEBACH ARGUES that Congress can overturn Roe v. Wade much as it overturned Lassiter...
...Moreover, such historical episodes as Watergate, the McCarthy era, and the Red Scare raids of A. Mitchell Palmer are trotted out to prove the inherent tendencies of the political branches to excess...
...In a letter to the Senate Judiciary Committee last spring, a dozen conservative and liberal law professors denounced the proposed bill as "a dangerous circumvention of the avenues that the Constitution itself provides for reversing Supreme Court interpretations of the Constitution...
...The limits of judicial power, a constitutional conundrum if ever there was one, will fatten the law journals long after the abortion controversy, by whatever resolution, travels from the headlines to the back pages and out of the newspapers altogether.e headlines to the back pages and out of the newspapers altogether...
...The Roe Court merely held that (1) as a matter of legislative history, the term "person" in the Fourteenth Amendment was not intended by that Amendment's framers to include fetuses...
...The constitutionality of the proposed statute depends upon the extent of congressional power under the Fourteenth Amendment...
...But under our system the Supreme Court is the final definer of constitutional terms, and only by constitutional amendment can that interpretation be overridden...
...However, some legal scholars believe these restraints on the judiciary are sufficient and, therefore, that the debate over judicial review is not as critical to the future of the Republic as it may seem...
...Does "due process" mandate that a welfare recipient is entitled to a hearing before his benefits are cut off, or will a prompt post-termination hearing suffice...
...Leon E. Rosenberg, chairman of the department of genetics at the Yale University School of Medicine and the sole witness to disagree with this kind of oracular testimony, castigated Dr...
...Consequently Ely concludes that the creation of a right to abortion is bald judicial legislation: "What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value from the provisions they included, or the nation's governmental structure...
...Six years later in Katzenbach v. Morgan, the Court upheld a congressional law which had the practical effect of forbidding the states (primarily New York) from denying the vote to Americans of Puerto Rican descent who were educated through at least the sixth grade in schools in Puerto Rico where the language of instruction was Spanish...
...Simply put, the question is: Given that the Supreme Court has the power to decide cases "arising under" the Constitution, by what rules do we decide what those cases are...
...Legal scholars searching for rules to govern judicial review are denied even this small solace...
...Thomas Jefferson dismissed the impeachment procedure as "a bungling way, an impractical thing, a mere scarecrow...
...However one may judge the adequacy of these external restraints, self-imposed restraints are often just as important as external ones...
...The First Amendment, for example, guarantees all Americans freedom of speech, but the breadth of that guarantee has depended on whether we were involved in a hot war or a cold war or at peace, on the economic condition of the country, on evolving social ideals, and on the composition of the Supreme Court...
...Burt persuasively concludes, "If the central role in protecting the Amendment from future depredations is necessarily vested in the courts, and if that role was derived from the explicitly stated mistrust of future Congresses, where then does one find that the essence of the amendment was to enlarge the powers of Congress vis-a-vis the courts...
...The human life statute presents the opposite problem: legislative assumption of some of the power of constitutional interpretation, a power traditionally reserved to the courts...
...his claim rather is that Roe is not constitutional interpretation...
...GALEBACH'S SIMPLE contention is that Section 5, whatever its extent, is broad enough to empower Congress to declare that there is a significant likelihood that human life begins at conception...
...Because the core of the law is certainty-a good lawyer, goes the old shibboleth, is one who can predict what a judge will decide in a given case-lawyers and judges have for centuries searched for simple rules with which to tame all these wild and wayward constitutional phrases and to shrink the subjective element in judicial decision-making...
...It is a venerable quest, dating at least from 1803, when in Marbury v. Madison Chief Justice John Marshall established the Constitution as the highest law of the land and the Supreme Court as its final arbiter...
...Over this caption was a photograph of a perplexed and sad woman (who looks very much like Helen Gurley Brown) in a dress and in pearls and in jail...
...there is no better example of this preoccupation with process than an aphorism of-I believe-Justice Robert H. Jackson who, in a reference to the authoritativeness of Supreme Court decisions, said "We are not final because we are right...
...that identifying discrete and insular minorities is not as easy as it seems...
...unlike the "specially informed legislative competence" of Congress, the Supreme Court and other courts are inappropriate institutions to make extensive investigations into such factual issues...
...Discerning the meaning of Section 5 requires delving into the legislative history of the Fourteenth Amendment and interpreting relevant Supreme Court decisions...
...Nor are exogenous social conditions or political trends the only influences on the Constitution...
...Justice Brennan in Morgan stressed that the fact-finding capabilities of Congress are often superior to those of the judiciary...
...at least eighteen state legislatures have submitted "memorials" to Congress urging passage of a constitutional amendment prohibiting abortion...
...Moreover, the plain language of Section 5 itself belies the validity of the proposed statute...
...2. Galebach's conundrum IN 1895, THE Supreme Court in Pollock v. Farmer's Loan & Trust Company held the federal income tax unconstitutional...
...That Amendment reversed Oregon v. Mitchell, in which the Supreme Court invalidated certain sections of the Voting Rights Act as unconstitutional violations by Congress of states' right to set voting requirements...
...The two most important are Lassiter v. Northampton County Board of Elections and Katzenbach v. Morgan...
...In Morgan the Court acquiesced in a Congressional enlargement of Fourteenth Amendment guarantees beyond what the Court had required in Lassiter...
...Ely's criticism of Roe recalled the Lochner era, the period from 1905 to the dawn of the New Deal, when successive conservative Supreme Courts struck down, with little constitutional justification, myriad social welfare laws establishing minimum wages and maximum hours for selected groups and occupations, and regulations for prices and products...
...Intellectual trends among constitutional scholars-a novel and attractive theory of free speech, or of the role of the judiciary in our society- can filter down to the courtrooms and expand or contract rights and duties which seemed unalterable a generation before...
...Because the federal judiciary is in an anomalous position as the only unelected branch of government in a democratic nation...
...But the abortion issue, as discussed in law schools and law journals, has been primarily an issue of process for the eight years since Roe v. Wade...
...Justice Brennan stressed the superior fact-finding capacity of Congress in this kind of matter...
...to dilute or to reduce judicially approved rights is an entirely different matter...
...Most pro-abortionists do not care whether the Supreme Court or the New York State legislature legalizes abortion, so long as it is legalized...
...their concern is the constitutionalness of a given issue, a question which must be answered before one considers the constitutionality of competing views of that issue...
...Taft and Root were reminding their angry colleagues that whether for good or for ill, John Marshall established judicial supremacy in constitutional interpretation in this country in Marbury v. Madison...
...But abortion, Ely persuasively contends, does not involve privacy in its commonsense meaning as those amendments do...
...GALEBACH'S EQUATION OF the voting rights cases with the abortion issue is faulty in another important way...
...If the police break into your house without a warrant, the Fourth Amendment is clearly involved, and if the government tries you twice for the same crime, the double-jeopardy clause of the Fifth Amendment is implicated...
...To fill this void, the justices often rely on hunches, instinct, and personal political predilections...
...Success depends on the area of law at issue, but nowhere is the search more crucial or more frustrating than in the field of judicial review, that area of legal scholarship which attempts to find the proper line of demarcation between the legislative and the judicial functions...
...The bill was developed by former Harvard Law Review editor Stephen H. Galebach, now a twenty-eight-year-old attorney for the firm of Covington & Burling in Washington, D.C...
...Freed from the duty to anchor themselves to the text of the Constitution, the Supreme Court can become a super-legislature beholden to no constituency, an Oligarchy of Nine which discovers in the margins of the Constitution rights that no mere citizen can perceive...
...The Constitution is not to be read as literally as a statute, they maintain...
...True but unhelpful, as the psychiatrists say...
...New York state, whose English literacy test was rendered invalid by this federal law, challenged it as an unconstitutional usurpation by Congress of the historic right of the states to set voting requirements...
...By using Section 5, Galebach hopes to remove the' 'absence of consensus" on which the Roe decision illogically rests...
...Proponents of the human life statute, in any case, have armies of lawyers who no doubt have advised them of the almost certain unconstitutionality of the bill...
...Similarly, scores of lawyers resolutely opposed to Roe and, as citizens, and voters, resolutely opposed to legislative legalization of abortion, will voice their unstinting opposition to the proposal of Stephen Galebach...
...A jury in a criminal trial must be sure beyond a resonable doubt that a defendand is guilty before sending him up the river for a few years, but the Supreme Court, at least in the area of abortion, need only be doubtful of a fetus's humanity in order to permit a woman to treat it as non-human...
...He notes that such vague constitutional phrases as "due process" and -"equal protection" invite imaginative judicial construction...
...Laurence H. Tribe, also of Harvard Law School, takes a more expansive view of the proper judicial role...
...Moreover, an earlier draft of the Amendment was rejected by Congress because,, in Burt's words, "it failed to entrench the stated guarantees against a future unsympathic majority in Congress...
...Recognizing this, anti-abortionists have recently developed an ingenious legal strategy to replace or at least to supplement their unavailing efforts to overturn by constitutional amendment the Supreme Court's legalization of abortion in Roe v. Wade eight years ago...
...And so it falls to the lawyers, out of inclination, noblesse oblige, or a serendipitous division of social labor, to mull over the arid and recondite constitutional implications of strategies chosen solely for their effectiveness in achieving a political end...
...Cox rejects the ratchet theory as nonsensical: "If relative competence is a justification for deferring to congressional extension of voting rights on the basis of factual findings and characterizations, as suggested in Katzenbach v. Morgan, relative competence also argues for deference when the direction of change is reversed...
...But the paucity of legal tools with which to fashion constitutional decisions ifthe primary contributor to the fragility of our system...
...he is pushing the human life statute because he doesn't think anti-abortionists "have the two-thirds majorities in the House and the Senate to pass" such a constitutional amendment...
...and when more than one person's rights are involved, privacy is, by definition, irrelevant...
...And it is the most perplexing...
...The legislative history of Section 5, the precedents in the literacy requirements cases, and the opinions of legal scholars all underscore the undoubted unconstitutionality of the human life statute...
...Pro-abortion groups take the threat seriously...
...Moreover, to see the abortion issue through the eyes of the legal profession is to gain a glimmer of a not unheroic function which that profession occasionally performs for our society: safeguarding the long-run integrity of our constitutional system, regardless of the advantages and disadvantages of such protection for the advocates of a particular political cause...
...Armed with this new knowledge, states can then prohibit abortions, claiming that their interest in protecting the probably human fetus justified these restrictions...
...The notion that Congress may use its Section 5 powers only to expand court-granted rights-known as the "ratchet theory" in legal circles-was pointedly approved by Justice Brennan in Morgan: "Section 5 does not grant Congress power to exercise discretion in the other direction and to enact 'statutes so as in effect to dilute equal protection and due process decisions of this Court.' . . . Section 5 grants Congress no power to restrict, abrogate, or dilute these guarantees...
...There is, of course, no right of privacy bestowed on the American people by the Constitution, but, as Justice Blackmun noted in Roe, certain constitutional" provisions do implicate a person's privacy...
...Rosenberg, has no ready answer for this daunting issue: "Some people argue that life begins at conception, but others say that life begins when brain function appears or when the heart beats, or when a recognizable human form exists in miniature, or when a fetus can survive outside the uterus, or when natural birth occurs...
...In fact, as Ely notes, the New York legislature was well on its way to liberalizing its abortion law in 1973, when the Supreme Court's announcement of Roe v. Wade rendered that issue moot...
...President Reagan has given a vague imprimatur to the proposed statute, and Richard Schweiker, Secretary of the Dept...
...IN 1982, IF YOU HAVE A MISCARRIAGE YOU COULD BE PROSECUTED FOR MURDER" proclaimed a full-page Planned Parenthood ad this spring in the New York Times...
...THEORIES ABOUND...
...When an issue does not involve fact-finding in the empirical sense that the voters rights case involved, then we are no longer dealing with the peculiar institutional competence from which Congressional authority under Section 5 is derived, and courts no longer have any reason to defer to an Orwellian legislative "determination...
...The Lochner case itself, which invalidated a New York labor law limiting the working hours of bakers, is infamous in legal circles...
...The Galebach proposal may be a stratagem for keeping the abortion issue in the public eye while lobbyists try to collect enough votes for a constitutional amendment, and it may be a novel legal theory, but there is no doubt that its advocates must bear a heavy burden of proof to convince the courts and the public of its constitutionality...
...The "article" referred to is the Fourteenth Amendment, with all its majestic and vague provisions for due process and equal protection...
...It also fails for specific historical reasons: the legislative history of Section 5, thoroughly reviewed by Yale University law professor Robert Burt, yields only the slimmest evidence that the Thirty-Ninth Congress, which passed the Fourteenth Amendment in 1866, had any intention to usurp the already-venerable Marbury v. Madison doctrine of judicial supremacy...
...and that the more contrary a Supreme Court decision is to the sense of the nation, the more easily can it be reversed by constitutional amendment...
...The dispute over Galebach's proposal will keep abortion as a primary topic on the nation's agenda and, if it becomes law, the inevitable judicial invalidation of the bill will bolster anti-abortion sentiment and increase the prospects for passage of a constitutional amendment, of which there are eighteen currently pending in Congress...
...In addition, vigorous lobbying and mail campaigns by right-to-life groups may push fence-sitting congressmen onto the anti-abortionists' turf...
...There are those who disagree with Ely, and their arguments have some force...
...They are associations few laypeople will recognize and fewer still will consider as urgent or important as those momentous issues, the meaning of human life and the putative right of a woman to control her destiny, which surround the public discussion of abortion...
...THE GALEB ACH PROPOSAL thus fails whether one accepts the ratchet theory of Section 5, its limitation to genuinely factual matters, or both...
...those hearings highlighted the non-factual nature of that question...
...it is a living document, a blueprint for society, whose meaning changes with succeeding generations...
...Even in the unlikely event that someone should catch the public's ear long enough to charge that the wrong institution did the repealing, they have heard this 'legalism' before without taking to the streets...
...Thus, courts should stick closely to the text of the Constitution, and should let the political process prevail except in those cases-such as that of a discrete and insular minority-where that process itself seems faulty...
...We are right because we are final...
...Even such a seemingly incontrovertible doctrine as that of the separation of powers, far from having been chiseled in granite in Philadelphia in 1787, is a fluid and unsettled precept written on water and vulnerable to erasure if the political tides are right...
...The Court, in short, allowed Congress by an ordinary act to reverse the Court's holding in Lassiter...
...But what about abortion...
...Faithfulness to that model, Tribe argues, may require less-than-strict adherence to the text of the Constitution...
...In a seminal piece in the Yale Law Journal a few months after that decision, Professor Ely was aghast...
...Although this is an interesting and lucky division of social labor, these legal concerns are ones we should all share...
...Madison doctrine of judicial supremacy in matters of constitutional interpretation...
...and constitutional doctrines consequently become unsettlingly elastic...
...and (3) in the absence of such a consensus, the right of a woman to have an abortion outweighs, within certain limits, any state interest in protecting the fetus...
...Does the Constitution speak to these issues and, if so, where...
...Abortion, Ely contends, falls under neither exception...
...Next to "The New Property" by Charles Reich (of The Greening of America fame), Ely's article is the most famous and influential legal analysis of the past decade, a notoriety only partly explained by its admitted persuasiveness...
...Putting these two cases together, Galebach concludes that Supreme Court precedents approve a very expansive reading of congressional power to interpret and enforce the Fourteenth Amendment...
...Roe may be a very bad decision, even an unconstitutional one, but Galebach's proposal is riot the way to undo it...
...And most commentators are unconvinced that the burden can be borne...
...There is no simple answer...
...Science, said Dr...
...Representative Henry J. Hyde (R.-Ill...
...That community's concern for proper process in reaching a social decision is also beneficial...
...The enforcement power is an executory, not an interpretive, one...
...Roe v. Wade purported to find a right to abortion in the Constitution, a right associated with the right of privacy...
...The National Academy of Sciences agreed with Dr...
...The Galebach proposal is a good example of the malleability, the open texture of the law...
...Abortion is not an issue which "arises under" the Constitution...
...A remarkably silly decision, Roe thus held that because the fetus, could not definitely be determined to be human, the Court would treat it as nonhuman-a nonsensical argument which goes against the grain of all Anglo-American law...
...and such high points of judicial history as Brown v. Board of Education and the early gender discrimination cases of the Burger Court are cited as proof of courts' foresight and moderation...
...But even under Cox's broad construction of Section 5, the non-factual nature of the human life statute puts it beyond the purview of that Section...
...Scientific knowledge about the biology of human reproduction is inherently insufficient to resolve the question of the humanity of the fetus because that question requires a definition of life itself...
...and that process-oriented theories of judicial review belie the substantive nature of the Constitution...
...Many states seem eager to do so...
...and because constitutional decision-making is so elastic, this is the most fundamental issue in American law...
...Abortion, the Constitution, & the human life statute FRANCIS J. FLAHERTY As EQUAL RIGHTS AMENDMENTS advocates know, it is no easy matter to muster two-thirds of both houses of Congress and three-quarters of the state legislatures to agree on a constitutional amendment...
...The Fourth Amendment right to be free from unreasonable searches and seizures, for example, and the Fifth Amendment freedom from coerced self-incrimination, clearly have aspects of privacy...
...The consensus of the legal community is that the Galebach proposal is a cute but clearly unconstitutional stratagem, dis-missable almost out of hand...
...Archibald Cox, who was an enthusiastic defender of congressional authority under Section 5 during those years when a liberal Congress was passing the progressive voting rights legislation which gave rise to the literacy test cases, nonetheless believes that such power is confined to areas which "quite genuinely involve investigation and evaluation of facts...
...because the process of constitutional amendment required to overturn a Supreme Court decision is so arduous...
...The Lochner era was a judicial attempt to perpetuate the laissez-faire economic policies of early capitalism, an attempt to stave off, Canute-like, the rising tide of the mixed economy...
...By using its superior fact-finding capacity, Congress can educe the testimony of scientists and physicians and conclude that human life probably begins at conception...
...it has become an eponym for judicial interference with public policy under the guise of constitutional interpretation...
...Morgan can thus be read as granting Congress extensive powers under Section 5 only on issues which call into play that branch's fact-finding capacities...
...Moreover, the Bill of Rights (the first ten amendments) are, as the late William O. Douglas has said, an anti-government manifesto meant to protect the individual from tyrannical governmental acts...
...The judiciary is able to determine that in theory literacy tests are neutral in terms of race or ethnic origin, but Congress is in a better position to determine that, in the real world of blacks in the South or Puerto Ricans in New York City, literacy requirements for the exercise of the franchise do in fact operate to perpetuate or facilitate racial discrimination...
...Some foreign nations follow a legislative supremacy model, in which the legislature defines and interprets the terms of that nation's constitution...
...The quoted constitutional language is, to put it mildly, inconclusive (or, as lawyers say, not "outcome-determinative...
...If a fetus is a human being, then it is a ','person'' under the Fourteenth Amendment, and deserving of that Amendment's protections...
...Or homosexuality...
...This being the case, the legal community should continue to search for rules to govern judicial review...
...Alpheus Thomas Mason, Emeritus Professor of Jurisprudence at Princeton, has written that Taft and Root "were wary of encouraging the notion that Congress could reverse an objectionable [Supreme Court ] decision by an ordinary act, lest the popular image of identity between the judicial version of the Constitution and the Constitution itself be fatally damaged...
...This strategy, known as the human life statute or the Helms-Hyde bill, would-by a simple majority of both houses of Congress-declare a fetus to be a person from the moment of conception...
...WHETHER ONE agrees with the judicial activists or the advocates of judicial restraint, the debate over judicial review is probably a good thing...
...the anti-abortionists have chosen to press for the statute anyway, probably because they value it more for its political usefulness than for its constitutional correctness...
...Laurence Tribe and John Hart Ely, fierce competitors in their theories of judicial review and in their assessments of the propriety of Roe v. Wade, jointly wrote in the New York Times that they "have no trouble at all agreeing that this formula for overturning [Roe v. Wade ] is badly misguided...
...2) that although the term "person" in the Fourteenth clearly includes human beings, "those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus" concerning the humanity of the fetus...
...Advocates of judicial restraint easily counter these assertions with constitutional language and historical examples of their own...
...Senator John East (R.-N.C), an anti-abortionist, and chairman of the Senate Subcommittee on the Separation of Powers, held hearings on the question of the humanity of the fetus last April...
...Despite Galebach's rather specious contention that the human life statute merely expands Four-i teenth Amendment protections to include the fetus, there is no gainsaying that the right of a woman to have an abortion, granted by the Court in Roe, will be reduced if not eliminated if the human life statute is passed...
...Congress cannot interfere in state matters-such as voting requirements-unless it has a basis for doing so expressly granted to it in the Constitution...
...1. 'Roe' & judicial review DESPITE WHAT WE learn in grammar-school civics classes, the American constitutional system is fragile...
...only four times in the nation's history has an amendment been passed which is directly traceable fo a desire to overturn a Supreme Court decision...
...Roe v. Wade made as big a splash in the law journals as in the general press, albeit for very different reasons, and Galebach's human life statute has added a second legal controversy over abortion even while the Roe v. Wade issue remains unresolved...
...Naturally enough, this problem is most pressing with the Supreme Court, the bulk of whose docket concerns such del-phic constitutional riddles as: Is obscenity included in the '' speech'' protected by the First Amendment and, if not, what is obscenity...
...There was a gain of forty anti-abortion senators and representatives in the November 1980 elections...
...It is at root philosophical and moral...
...Like many such problems, its focus is not on the substance or the practical effects of Galebach's proposal, nor does it involve discussion of the moral or social aspects of abortion...
...First, despite Galebach's creative analogy between the literacy requirement cases and Roe v. Wade, the two are not at all comparable...
...If the human life statute passes and the inevitable legal challenge to it is made, states prohibiting abortions will be in a much better position than the state of Texas was in Roe v. Wade...
...3. The reasons why not HOWEVER, STATES' FREEDOM to restrict or to criminalize abortions would be short-lived under the human life statute because that law would never stand up in court...
...In an opinion by Justice Brennan, the Court upheld the law under Section 5. Brennan wrote: It was for Congress, as the branch that made this judgment, to assess and weigh the various conflicting considerations-the risk or pervasiveness of the discrimination in governmental services, the effectiveness of eliminating the state restriction on the right to vote as a means of dealing with the evil, the adequacy or availability of alternative remedies, and the nature and significance of the state interest that would be affected by the nullification of the English literacy requirement as applied to residents who have successfully completed the sixth grade in a Puerto Rican school...
...Does the bill intrude on the jurisdiction of the federal courts and consequently violate the doctrine of the separation of powers...
...But for lawyers these issues of process are the real problem of abortion...
...Rather, its sole concern is process: Does Congress have the constitutional power to pass such a bill...
...President Taft and Senator Elihu Root, though both believed Pollock to be erroneous, nevertheless insisted that only by constitutional amendment could the case be reversed (which is what eventually happened in 1913, when the Sixteenth Amendment was ratified by the states...
...The constitutional amendment process is also cumbersome, and it requires an extraordinary national consensus...
...We thus know that obscenity is a constitutional issue and, because of Marbury, we also know that the Court has the authority to decide the case...
...that judges, by and large, are sensitive to the undemocratic nature of their offices and thus try not to overstep their mandate...
...in a resolution passed a few days after Senator East's hearings, the Academy dismissed the possibility of a scientific resolution of this issue...
...The Galebach proposal is atypical only in that these issues of process, long the sole province of the legal academy, have spilled onto the front pages and into the minds of the public...
...Lawyers discuss the procedural aspects of the abortion question with as much vehemence and contentiousness as the public debates its substantive aspects, and although these legal issues do not raise questions as daunting as the definition of human life, the questions they do address-the separation of powers among the coordinate branches of the federal government, the anomalous position of an unelected federal judiciary in a democracy-are by no means minor...
...In a society where newspapers, periodicals, books, and other printed matter canvass and debate campaign issues," Douglas opined, "a state might conclude that only those who are literate should exercise the franchise...
...Judicial activists," on the other hand, note the insularity and thus the impartiality of judges, and the lesser trustworthiness of legislators beholden to their constituents and caught up in the hurly-burly of politics...
...Six former Attorneys General sent a letter of similar import to Senator Max Baucus (D.-Mont...
...By allowing Congress to strike down New York's literacy test on the basis of Section 5, the Morgan Court was granting Congress a very active role in interpreting the Fourteenth Amendment because it is only on the basis of that Amendment that Congress's invasion of New York's right to set voting requirements can be justified...
...Does the placement of two prisoners in a cell designed for one violate the Eighth Amendment's ban on "cruel and unusual punishment...
...Whether or not the Supreme Court has the institutional right to replace the judgment of the Texas legislature on the matter of abortion is a question which is logically anterior to the question of whether the Texas legislature was substantively correct in its judgment...
...Jerome Le Jeune, professor of fundamental genetics at the Universite de Rene Descartes in Paris: "The question of when human life begins is an established fact...
...Abortion is not such an issue: the question of the humanity of the fetus, although it may involve facts of biology, also involves moral and philosophical issues which the trotting out of those facts does not resolve...
...It relies on Section 5 of the Fourteenth Amendment, which bestows upon Congress the power to "enforce" that Amendment "by appropriation legislation .'' The extent of that power is uncertain, and that uncertainty is compounded by the cloudiness of the two key terms in the Fourteenth Amendment, "due process" and "equal protection," surely the most notoriously vague phrases in the constitutional lexicon...
...Of the eight medical doctors who testified, seven concluded that - as the human life statute contends - human life begins at conception...
...Finding no such right, many legal scholars never reach the latter issue...
...Section 5. The pertinent part of that Amendment, provides in its entirety: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article...
Vol. 108 • October 1981 • No. 19
