in not bringing such facts to light, Mr. Chairman, and I would urge the committee to give this matter its most serious attention. In weighing the effects of permissive abortion, I think it important to consider not only those who might otherwise be tempted to seek an illegal abortion, but those whose decisions are affected primarily by the status of the law itself. It is true that some women will seek abortions, just as some doctors will perform them, regardless of what the law says. But I believe that for most women and for most doctors, the attitude of the law is a decisively important, if not the dominant factor in the abortion decision. No law is capable of preventing certain women from seeking and obtaining an abortion. But the tragedy and death which result from their action, both on a personal and a social level, are small when compared to the massive destruction of mind and body, and the demoralizing effect upon the social order, that arise under permissive abortion. I wish, Mr. Chairman, that there were some way to insure that every child would be a wanted child, just as I wish that there were some way to insure that every child would be perfectly healthy. Unfortunately, such guarantees are beyond our grasp, and so long as they remain thus, I think we ought to consider some alternatives other than the killing of children as a way out of the perennial and universal dilemma of the unwanted or imperfect child. Indeed, one of the worst consequences of permissive abortion is that it encourages women (and men, for that matter) to think of abortion as some sort of "final" solution to a problem that is likely to repeat itself again and again, during every month of a fertile woman's life. The same difficulties which may prompt a woman not to want a child in March will still exist in April and in May and so on, unless she is sterilized (which may very well happen following multiple abortions) or until she reaches menopause. The "problem", in short, to which abortion is presented as an easy and allegedly safe "solution", is not a one-time thing. I am therefore puzzled when proponents of abortion advance their proposals with such enthusiasm. Do they propose that abortion is always a “way out", or only the first time? If they choose the former alternative, they will have to answer the nasty mental and physical effects of multiple abortions. And if the latter alternative is chosen, it seems to me that they owe us an explanation as to why the same means that would be used to prevent multiple abortions could not, with some effort, also be used to prevent the first one. Mr. Chairman, I know there are others who wish to testify this morning, so with your leave, I would like to conclude by offering some suggestions as to the kind of issues that your future hearings ought properly to embrace. I make these recommendations because over the course of the past year or so, I have found that the abortion controversy must be understood in perspective, or it will not be understood at all. Let me provide you with but one example that will illustrate my point. It is frequently argued that abortion is uniquely a woman's issue, and that therefore the core question is preeminently one of a woman's "right to privacy". But I have never heard, Mr. Chairman, in all the discussion that has taken place under this rubric, a satisfactory answer from the proponents of abortion as to when it is that the right to privacy attaches to the unborn child. Nor have I heard a satisfactory answer to the question as to what, precisely, the pregnant woman's right to privacy consists in. Is it a right merely not to carry a child that one has already conceived? Or is it the right to kill the child that one is bearing? One answer to this question was provided last year in testimony before the Criminal Laws Subcommittee, at which the distinguished Senator from Nebraska was present. Questioned by counsel on this point, Dr. Alan Guttmacher of Planned Parenthood replied that the right to privacy embraced the right to kill, because legalized abortion is designed not only to assist women, but to protect society's "quality of life" from being disturbed by such problems as "unwanted" children. The killing of the child, he concluded, ought to be done, in his words, "for the good of the child". That answer, which has at least the virtue of bluntness, suggests to me and to all who share my concern with this issue, that the abortion debate is far more than a subsidiary topic under the general category of women's liberation. And I would hope that the members of this committee would share my alarm at the implications of Dr. Guttmacher's statement. With that by way of background, let me therefore submit for your consideration the following topics for examination at subsequent hearings. Legal Issues The legal status of the unborn child prior to and after the recent period of liberalized abortion; The intention of the framers of the 14th Amendment regarding the protection of human life and the meaning of legal "personhood"; The purpose, history, and interpretation of 19th and 20th century legislative restrictions on abortion; Analysis of the Court's opinions in Wade and Bolton, including their implications in areas other than elective abortion; The origins and limitations of the "right to privacy"; The nature and limitations of the state's "compelling interest" in maternal life and health; Analysis of differing constitutional proposals especially the difference between an essentially "states' rights" approach and a Human Life amendment. Medical Issues The scientific and medical importance of the discovery of conception in the early 19th century; The attitude of the medical profession toward abortion prior to the modern period of liberalization; Who is the fetus?: the genetic, biological, and physiological nature of the unborn child from conception onwards; The various techniques of abortion; The alleged medical and psychological indications for abortion; The medical and psychological consequences of abortion, including the effect of abortion on subsequent pregnancies; Foreign experience with abortion; The impact of liberalized abortion on hospitals, doctors, subsidiary medical personnel, and medical students. Social Ethics and Related Public Policy Issues The emergence of a "new ethic" in which the presumed sanctity of individual existence is subordinated to a bureaucratic or medical determination as to its "quality"; The social and cultural consequences of abortion-on-request; The relationship between abortion and infanticide, between abortion and euthanasia generally. This list of suggested topics is by no means exhaustive, but it can provide a framework in which the consequences of Roe v. Wade and Doe v. Bolton can be seen and understood in all their grisly detail. The issue before the Senate and the nation is whether this country is going to tolerate the continuation of killing for sake of social convenience, or whether it is going to restore legal protection to all human beings, born or unborn, whose lives have been endangered by those unfortunate decisions. I know that this committee will give this issue its most serious attention, granting to all-including the unborn— a full and fair hearing. ABORTION AND THE CONSTITUTION: AN EXAMINATION OF THE PROPOSED (To appear in Rutgers (Camden) Law Journal, No. 73, Spring 1976) The authors wish to express their deepest thanks to Professor I. INTRODUCTION In January 1973, the Supreme Court handed down two decisions radically changing the legal status of abortion in the United States. In the companion cases of Roe v. Wade1 and Doe v. Bolton the Court confronted the basic constitutional issue: how far can the state intrude into the decision of a woman and her physician as to whether she should have an abortion? At the time Roe and Doe were decided, states' intrusion was deep and pervasive. Most 1410 T.S. 113 (1973). 2410 U.S. 179 (1973). states took the decision out of the hands of women and their physicians by forbidding abortion outright except in rare cases. Legal abortions were surrounded by procedural restrictions. The Texas statute, struck down in Roe, was typical of the majority of state laws and banned all abortions except those necessary to save the life of a pregnant woman. The Georgia statute under review in Doe was similar to laws in thirteen other states. It was patterned after the American Law Institute's Model Penal Code and permitted abortions only to preserve the health of a pregnant woman and to prevent the birth of badly deformed infants and infants conceived by rape. Recognizing that the constitutional rights to privacy protects the decision of a woman and her physician that she should have an abortion, the Supreme Court placed severe restraints on state interference with that decision. Only a compelling state interest, the Court concluded, could justify state interference in this private reproductive choice. In Roe, the strength of the interests asserted by Texas at various stages of pregnancy was assessed. The state's interest in maternal health is legitimate, the Court held, but not compelling until the second trimester when the medical dangers of abortion begin to rival those of childbirth. Even then such interest is not sufficient to justify the prohibition of abortion, but only to permit regulations which would demonstrably protect interests in maternal health. The state's interest in potential life is also compelling, but only at the point when the fetus is capable of surviving outside the uterus. In the companion case, Doe v. Bolton, the Court considered procedural restrictions state law had placed on abortions. Georgia law provided that: (1) abortions must be performed in a hospital approved by the Joint Commission on the Accreditation of Hospitals; (2) abortions must be approved in advance by the hospital's abortion committee and (3) the need for an abortion must be confirmed by two physicians besides the woman's own doctor. The Court found each of these restrictions unconstitutional. The Supreme Court's resolution of the abortion controversy stirred deep emotions and engendered strong opposition. Abortion opponents immediately proposed constitutional amendments to overrule Roe and Doe. This is a common reaction from the losing side when the resolution of constitutional issues touches questions of fundamental belief and deep emotion. It was the response to cases like Engle v. Vitale and Abington School District v. Schempp,' barring Bible reading and prayer from public school classrooms; Baker v. Carr requiring states to draw the lines of voting districts to give equal weight to each person's vote; and Swann v. Charlotte-Mecklenburg Board of Education, approving various devices for making the promise of school desegregation a reality." The logic which compels this response is simple: if the Supreme Court has made an untenable decision based on what the Constitution says, the most obvious solution is to change the Constitution. This at once overrules the Supreme Court and settles the merits of the question. Three Congressional opponents of choice with respect to abortion, Senators Helms and Buckley and Representative Whitehurst, have introduced constitutional amendments since Roe and Doe were decided. The Helms amendment 10 is the most complete repudiation of the Supreme Court's decisions. The intent of the amendment is not only to override Roe and Doe, but to ban abortions altogether. Before Roe and Doc, states were free to permit choice with respect to abortion or not. New York, Washington, Alaska, and Hawaii had passed abortion reform laws allowing women wide latitude in reproductive choice." The intention of the Helms amendment is to take control of abortion away from the states, as well as from individual women and physicians, and to replace it with a single federal law. The amendment reads: $370 U.S. 421 (1962). 4374 U.S. 203 (1963). 5 Senate Fails to Amend School Prayer Ruling, 22 Cong. Quarterly Almanac 512 (1966). 6308 U.S. 186 (1962). 7 Fordham. The State Federal System: Vital Role or Limbo? 49 Va. L. Rev. 66 (1963) and Monroe, To Preserve the United States: A Brief for the Negative on Three Current Plans to Amend the Constitution, 8 St. Louis U.L.J. 533 (1964). 8 402 U.S. 1 (1971). Constitutional Scholars Comment on Busing Amendment to the Constitution, 118 Cong. Rec. E1301 (daily ed. Feb. 18, 1972). 10 S.J. Res. 6, 94th Cong., 1st Sess. (1975). 11 NY Penal Code, sec. 125.05, subd. 3 (Supp. 1972-1978): Wash. Rev. Code, secs. 9.02.060 to 9.02.080 (Supp. 1972); Alaska Stat. sec. 11.15.060 (1970); and Haw. Rev. Stat. secs. 453-16 (Supp. 1971). "Section 1. With respect to the right to life guaranteed in this Constitution, every human being, subject to the jurisdiction of the United States, or of any State, shall be deemed, from the moment of fertilization, to be a person and entitled to the right to life. "Section 2. Congress and the several States shall have concurrent power to enforce this article by appropriate legislation." 12 Senator Buckley has introduced two amendments. Their major thrust is similar to that of the Helms amendment: to take from states as well as women and physicians, control over abortion, and to enact a broad national ban on abortions except when the life of a woman is endangered by pregnancy or childbirth. The first one reads: 13 "Section 1. With respect to the right to life, the word 'person,' as used in this article and in the fifth and fourteenth articles of amendment to the Constitution of the United States, applies to all human beings, including their unborn offspring at every stage of their biological development, irrespective of age, health, function, or condition of dependency. "Section 2. This article shall not apply in an emergency when a reasonable medical certainty exists that continuation of pregnancy will cause the death of the mother. "Section 3. Congress and the several States shall have power to enforce this article by appropriate legislation within their respective jurisdictions." The only difference in the second Buckley amendment " is the wording of the second section's exception to save the life of the pregnant woman: "Section 2. No unborn person shall be deprived of life by any person: Provided, however, that nothing in this article shall prohibit a law permitting only those medical procedures required to prevent the death of the mother." 15 The third type of amendment, introduced by Representative Whitehurst," takes a different and apparently less radical tack. Once again its purpose is to overrule the direct holdings in Roe and Doe by allowing governmental intrusion into private abortion decisions. However, the intent is not to freeze abortion law in a single constitutional pronouncement but to turn the clock back to the days of state control prior to Roe and Doe. The Whitehurst amendment says. "Section 1. Nothing in this Constitution shall bar any State or territory or the District of Columbia, with regard to any area over which it has jurisdiction, from allowing, regulating, or prohibiting the practice of abortion." Anti-abortion legislators have made clear their intention to limit the right to choice with respect to abortion. Because of the Constitutional underpinnings of Roe and Doe, however, they are forced to turn to the amendment process. Amending the Constitution, however, is far more serious than enacting ordinary legislation. First, an amendment repeals inconsistent portions of the existing Constitution. Thus, any proposed amendment must be examined to determine its impact on the Constitution's present structure and content. Second, an amendment, like the rest of the Constitution, creates supreme law with unique permanence: once ratified, it supersedes all federal and state law and remains in effect as long as one-quarter of the states oppose change." For these reasons, the proposed amendments must be carefully scrutinized to determine precisely the principles which will thus be elevated to such a position of supremacy and permanence.' 18 16 On close examination, these anti-abortion amendments raise disturbing questions. Their effect on the existing Constitution will be grave, since they necessarily work to repeal some of the Constitution's traditional guarantees of personal liberty. In addition, the Helms and Buckley amendments present textual difficulties. These difficulties are so substantial that after months of 12 S.J. Res. 10, 94th Cong., 1st Sess. (1975) and S.J. 11, 94th Cong., 1st Sess. (1975). 13 S.J. Res. 10, supra note 12. 14 S.J. Res. 11, supra note 12. 15 S.J. Res. 96, 94th Cong., 1st Sess. (1975). 16 U.S. Const. art. VI. 17 U.S. Const. art. V. 18 For application of such an analysis to the proposed Equal Rights Amendment, see the companion articles, Dorsen and Ross, The Necessity of a Constitutional Amendment, 6 Harv. Civ. Lib. L. Rev. 216 (1971), and Emerson, In Support of the Equal Rights Amendment, Id. at 225. See Appellants' arguments in The National Prohibition Cases, 253 U.S. 350 (1920). Congressional hearings doubt still remains as to the most basic meaning and effect of the amendments.1 II. EFFECTS ON CONSTITUTIOnal GuaranteES OF INDIVIDUAL LIBERTIES Of course, the Constitution is amendable; those guarantees [of 20 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." The amendment power contained in article V of the Constitution 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." 24 23 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 20 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. 27 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. 10 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. 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 1908. The first prevented Congressional restrictions on immigration and limited Congressional power to tax immigration. The second prohibited income tax. U.S. Const. arts. I 25 U.S. Const. art. V. and V 2253 U.S. 350 (1920). Leser v. Garnett, 258 U.S. 130 (1922). |