C. SPECIAL CONSTITUTIONAL PROBLEMS OF THE STATES' RIGHTS AMENDMENT On its face, the amendment proposed by Senator Whitehurst, which purports simply to turn the abortion question back to the states, appears to change the Constitution less drastically than the other proposed amendments. This is an illusion. First, the states' rights amendment, instead of taking away rights wholesale like the other amendments, gives the states license to chip away at them bit by bit. In both cases the absolute quality of the protection is gone. A state can choose whether or not to extend the protection, what form it should take, and under what circumstances. As long as the state is permitted to make such choices, there is no guarantee of reproductive choice. The amendment, by taking away this guarantee, weakens those portions of the first, ninth and fourteenth amendments which compel Roe as completely as the other proposed amendments.

The states' rights amendment, moreover, would reach beyond the guarantees of individual freedom to change the existing balance between states and the federal government. The Supreme Court in Roe determined that the Constitution in its present form mandates uniform and nation-wide limitations on states' rights to intrude into private reproductive choice. This, Roe said, is a federal question to be resolved by reference to the federal Constitution. The states' rights amendment would leave the answer to the fifty states, individually, to resolve by reference to whatever standards they find appropriate.

A transfer of power from federal to state governments is neither good nor bad in itself. At times, constitutional amendments have been written specifically to change the balance of power within the federal system." The fourteenth amendment is the most obvious example of this use of the amendment process. What is harmful is the implementation of a shift in this balance because it is a politically expedient answer to a controversial question, not because the change is desirable in itself. Changes in the federal system should be made as conscious decisions to alter the structure of federal-state relations, not as ad hoc answers to morally and politically "hot" questions.

This amendment has another ramification which makes it far more dangerous to the existing constitutional framework than the other two. The states' rights amendment frees abortion from all federal constitutional restraints, not just the restraints against state intrusion into private and religious questions. The implications of this are profound." By freeing the regulation of abortion from all constitutional structures, such guarantees as the right to due process in criminal proceedings, the right to security from unreasonable search and seizure, and the freedom of speech and association could all be abridged without violating the federal constitution. If states choose to write abortion laws singling out certain races for special treatment, the equal protection clause could not be used to challenge those laws.

Such an amendment could be used not only to prevent a woman from having an abortion, but to force a woman who wanted a child to submit to one. No activity in this country has been placed outside all constitutional scrutiny. Abortion, a subject particularly charged with moral and religious significance, does not seem like the place to begin such a radical experiment.

III. TEXTUAL DIFFICULTIES

Besides the serious disruption of constitutional guarantees, the anti-abortion amendments also present textual problems, the language of the Helms and Buckley amendments is untenably imprecise. The rsolutions are riddled with vague phrases and ambiguous terms. When supporters of the amendments were asked to explain their drafts, their answers multiplied the confusion." The Whitehurst states' rights amendment, while breathtakingly broad in its sweep, at least has the virtue of not hiding its true meaning. Presumably, however, as the states began to act under their grant of power, confusion and vagueness similar to that associated with the Helms and Buckley amendments would arise. The textual problems written into the Helms and Buckley amendments would simply appear in state statutes.

Of course, the meaning of constitutional provisions is, to some extent, made certain only with the passage of time. Broad phrases like "due process" and

74 See Swindler, the Current Challenge to Federalism: The Confederating Proposals, 52 Geo. L.J. 1 (1963).

75 See the comments on another attempt to overrule a Supreme Court decision by withdrawing constitutional protection from the entire field in Fordham, supra note 7 at 672. 76 See notes 46; 104, infra, for examples.

"equal protection" take on life and meaning only as courts interpret them. Nonetheless, the words of a constitutional provision should at least serve as guideposts for ordinary citizens and the judiciary.

The Supreme Court has developed the void-for-vagueness doctrine as a limitation on ordinary statutory law." The doctrine has never been applied to language in the Constitution itself. Yet the need for guideposts is equal or greater with constitutional provisions. The language of these amendments fails to provide even minimum interpretive guidance or notice. Moreover, their latent ambiguities hold peculiarly destructive potential, since they impinge on areas of fundamental freedom.

A. WHAT RIGHTS ARE GRANTED BY THE AMENDMENTS

The thrust of the anti-abortion amendments is to overrule Roe by establishing constitutional rights for fetuses and embryos. Yet from the texts of the amendments it is impossible to learn what rights are being inserted into the Constitution.

Both the Helms and Buckley amendments attempt to establish rights by defining the term "person," as used in the Constitution, to include embryos and fetuses. Such a definition would overrule the finding in Roe that "the word 'person'," as used in the fourteenth amendment, does not include the unborn." 78 The attempts at redefinition are prompted by dictum in Roe which implies that if fetuses were "persons," then protecting their lives would be a sufficiently compelling motive for restrictive abortion laws." To accomplish this end, the Helms amendment says, "With respect to the right to life guaranteed in this Constitution, every human being shall be deemed . . . to be a person and entitled to the right to life." The phrasing of the Buckley amendment is slightly different. It says, "With respect to the right to life, the word 'person,' as used in this article and in the fifth and fourteenth articles of the amendment to the Constitution of the United States, applies to all human beings.

77 80

Using the term "person," as the sponsors of the amendments have, creates certain expectations. Generally the term connotes a human being with a particular legal status. "Persons" may sue for tortious wrongs and inherit property. They are counted in the census and taxed by the government. When a person is the victim of an intentional killing the law labels that crime murder. Some rights and liabilities accrue only to adult persons, such as the right to vote and full responsibility for criminal acts, but most legal rights and liabilities attach to all persons.

Because the status of "personhood" implies a certain legal status, some commentators have predicted chaos if fetuses are declared to be "persons." If "persons" may sue when they are harmed by negligent acts, under the amendments' new definitions of "person" a fetus or its representative should be able to sue its mother if she negligently smokes during pregnancy, contracts German measles, or miscarries because of too strenuous activity. Likewise, fetuses should be counted in the United States census and included in calculations apportioning legislative representation. Governments should tax fetuses and permit their parents to claim them as dependents. And all of these results should follow not only if the fetus is born alive, but also if the pregnancy results in a miscarriage or a stillbirth. Ten to twenty percent of all pregnancies result in miscarriages; most of these occur in the early stages, often before the pregnancy is detected." Enforcing the rights of fetuses for this large number which are never born presents bizarre problems. Yet if the status of fetuses as persons is to be taken seriously, courts will have to face the problem of enforcing concommitant rights.

See supra notes 65 and 66 and accompanying text. In Note, The Void-for-Vagueness Doctrine, supra note 66, at 75, Anthony Amsterdam points out the frequent use of the doctrine of unconstitutional indefiniteness by the Supreme Court to create a "buffer zone of added protection at the peripheries of several of the Bill of Rights freedoms," in order that ambiguities not be allowed to chill the exercise of fundamental rights. A similar argument was advanced by the lower court in U.S. v. Vuitch, 305 F. Supp. 1032 (1969), rev'd 402 U.S. 62 (1971), in which the vagueness of the "life and health" standard in the District of Columbia criminal abortion statute was at issue.

78 Supra note 1 at 158.

79 Id. at 156-159. See testimony of Sen. Jesse Helms, Senate Hearings, supra note 19 at 94. 80 For the full texts of these amendments see Sec. I, infra.

81 Testimony of Bella Abzug, Senate Hearings, supra note 19 at 108-109; Schardt, Saving Abortion, Civil Liberties (1973) reprinted in Senate Hearings supra note 19 at 126; Testimony of Harriet F. Pipel before the Subcommittee on Constitutional Amendments, March 10, 1975 (unpublished): U.S. Civil Rights Commission, supra note 49 at 83-95. 82 Hellman and Pritchard, Williams Obstetrics 494-496 (1971).

Sponsors of the anti-abortion amendments have labeled the possibility of fetuses acquiring substantial rights mere "silliness." Although fetuses are “per sons," according to the sponsors, they are a special kind of "persons" with one and only one of the rights afforded ordinary persons—the “right to life." In other words, when the right to life is at stake, fetuses are persons; the rest of the time they are not. This solution creates the suspicion that making fetuses "persons" is only a strategem for tackling the decision in Roe, rather than something opponents of abortion truly believe. More importantly, it raises the troubling question of what having a "right to life" means.

The term "right to life" is one of the most confusing concepts in the antiabortion amendments. The sponsors of the amendments appear to believe the Constitution defines a "right to life." The Helms amendment speaks of the "right to life guaranteed in this Constitution,” and Buckley identifies the right as one lodged in the fifth and fourteenth amendments. However, the Constitution nowhere guarantees a "right to life;" in fact, the phrase is never used in the Constitution. The closest counterpart is the guarantee, located in the fifth and fourteenth amendments, against deprivation of a person's life by the government, without due process of law. But the guarantee of due process is a far cry from a guarantee of life itself.

Faced with this new right, created inadvertently in an attempt to outlaw abortions, courts will be forced to give this term meaning. Courts, interpreting a constitutional "right to life" which the amendments say extends to "all human beings" or "every human being," "ST could read the phrase as a grant of the

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right to a minimum standard of living for all members of society. This would imply the right to adequate food, decent housing and good medical care, which are the minimum essentials of biological existence. Indeed the term "right to life" has been used in the past in campaigns to establish rights to precisely these essentials under the equal protection clause."

Sponsors of the amendments deny that "right of life" would admit such broad reading and insist the phrase has a much narrower meaning. In fact, the sponsors' interpretation is so narrow it leaves doubts about whether the sponsors really intend to grant a "right to life" despite the rhetoric about mass murder under liberal abortion laws. The amendments' sponsors say the right to life means only freedom from interference with a person's physical integrity-the right not to be killed. Even this protection is surprisingly weak. For example, the penalties attached to murder, the way present law protects the sanctity of human life, would not necessarily apply to abortion under these amendments. According to Senator James Buckley states could decide to apply different penalties when a fetus is the victim of an intentional killing than when an infant or an adult is." Yet advocacy of the right to life for fetuses, combined with the insistence that fetuses are "persons," would appear to require treating the death of a fetus as seriously as the death of a person who is born. Representative Lawrence Hogan, co-sponsor in the House of an amendment identical to the Helms amendment, has a slightly different solution. According to him, abortion would be murder for a doctor performing an abortion but not for a woman having

83 Testimony of Sen. James Buckley, Senate Hearings, supra note 19 at 78.

84 The sponsors' definitions bring to mind a passage from Lewis Carroll's Through the Looking Glass and What Alice Found There:

"I don't know what you mean by 'glory,' " Alice said.

Humpty Dumpty smiled contemptuously. "Of course you don't-till I tell you. I meant 'there's a nice knock-down argument for you.'"

"But 'glory' doesn't mean 'a nice knock-down argument,'" Alice objected.

"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean-neither more or less."

The question is," said Alice, "Whether you can make words mean so many different things."

"The question is." said Humpty Dumpty, "which is to be master-that's all."

85 For the full text of these amendments see Sec. I, infra.

This is the term used in the Buckley amendment.

87 This is the term used in the Helms amendment.

88 Testimony of Harriet Pipel, supra note 81.

Krislov, The OEO Lawyers Fail to Constitutionalize a Right to Welfare: A Study of Uses and Limits of the Judicial Process, 58 Minn. L. Rev. 211 (1973).

90 For example. Sen. Helms has said. ". it is high time now for action, and not sophistry. Even before the Supreme Court acted, the partial relaxation of our abortion laws legally had brought about the deaths in 1972 of over 700,000 innocent children whose only misfortune was that they had not yet been born."

Senate Hearings, supra note 19 at 99.

See testimony of Sen. Mark Hatfield at 4-9, Rep. John Zwach at 145. Cardinal John Krol at 154, Sen. Dewey Bartlett at 417-418 in Senate Hearings, supra note 19.

91 Testimony of Sen. James Buckley, Senate Hearings, supra note 19, at 86-87.

an abortion, who, according to Representative Hogan, generally does not understand the nature of her act."2

As a result of ambiguities in the crucial terms "person" and "right to life," the nature of the rights created by the anti-abortion amendments is unclear. The language of the amendments admits the possibility of broad interpretations recognizing sweeping new rights for fetuses and people. The amendments' sponsors insist on narrower interpretations, but the interpretations they urge are so limited that they decry the broad language of the amendments themselves.

B. WHEN DO RIGHTS ACCRUE UNDER THE AMENDMENTS?

The anti-abortion amendments are an attempt to push backwards in time the point at which constitutional protections attach. Traditionally the rights of citizens are acquired at birth, a dividing line which has the virtue of certainty. The Supreme Court left undisturbed the universal practice of using birth to mark the beginning of the legal existence of a person. The antiabortion amendments attempt to establish at least some legal rights before birth, but precisely when those rights accrue remains the subject of much confusion.

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Under the Buckley amendments, the right to life “applies to all human beings, including their unborn offspring at every stage of their biological development." Under the Helms amendment constitutional rights apply "from the moment of fertilization." Neither phrase establishes a precise point for making a practical determination.

Under the Buckley amendments, rights would accrue sometime before birth, since the amendments refer to "unborn offspring." Beyond this the text of the amendments provides no guidance, only more questions. What is a “biological stage of development?" The ovum or zygote? The emplanted embryo? The embryo which produces symptoms of pregnancy? A viable fetus?

The Helms amendment is somewhat more precise. The term "moment of fertili zation" at least connotes a discrete physiological event. However, application of this standard is, in practical terms, impossible, since a woman does not know that fertilization has taken place until days or weeks after the event. Senator Buckley says all of these amendments would apply "only when the existence of the child is knowable." "This may be one solution to the dilemma created by these amendments, but it is not what the amendments themselves say. In fact, it is in direct contradiction to the words of at least the Helms amendment, which deliberately assigns rights from fertilization, an event which occurs long before the existence of a pregnancy is "knowable."

C. TO WHOM ARE THE AMENDMENTS ADDRESSED?

While quasi-criminal or regulatory in their underlying rationale, the form of the Helms and Buckley amendments is obviously modeled after the fifth and fourteenth amendments. The fifth and fourteenth amendments provide, in their relevant parts, that the federal and state governments cannot deprive persons "of life, liberty, or property without due process of law." These amendments were designed as bulwarks against arbitrary governmental instrusions into the private lives of citizens. Never have they been construed to reach the actions of private persons or institutions vis a vis other private persons or institutions in the absence of some governmental relationship or activity." In Roe, for example, it was the states' intervention in the private decision of abortion which was found to deprive women of reproductive choice under the due process clause. The "state action" took the form of proscriptive and regulatory state laws.

To the extent the proposed anti-abortion amendments of Helms and Buckley embody a traditional "state action" limitation, they may do little to reach truly private abortion activity." What they seem to mandate is simply that the

02 Testimony of Rep. Lawrence Hogan, Senate Hearings, supra note 19, at 513-5.

93 For the full text of the amendment see Sec. I, infra.

94 For the full text of the amendments see Sec. I, infra.

Testimony of Sen. James Buckley, Senate Hearings, supra note 19 at 79.

See Screws v. U.S., 140 F. 2d 662 (1944), rev'd on other grounds, 325 U.S. 91 (1945). in which the Court explains that the fourteenth amendment prohibits deprivation of rights by the state, not by individuals see also, Christhilf v. Annapolis Emergency Hosp. Ass'n, Inc., 496 F. 2d 174 (4th Cir. 1974), in which sufficient "state action" was found in the activities of an otherwise private hospital because of the use of federal funds. See Testimony of Harriet F. Pilpel, supra note 49.

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government itself refrain from aiding or abetting in the taking of fetal life, or at least not without due process of law. As a consequence abortions which were privately financed and performed in private hospitals might well pass constitutional muster. Only poor women, who are forced to rely on public funds and facilities, would be constrained in their right to choose abortion.

Buckley's S.J. Res. 11 alone confronts the question of state versus private action head-on in its language, although it is unclear whether this confrontation is deliberate or merely an inadvertent result of drafting. That amendment provides that "no unborn person shall be deprived of life by any person," thus apparently moving beyond the realm of governmental action along. If its author intended to reach the scope of solely private activity, the resolution represents a radical departure from existing constitutional provisions. Apart from the now discredited prohibition amendment, the thirteenth amendment prohibition against slavery and involuntary servitude is the only constitutional amendment which delimits behavior between private individuals. Moreover, such an interpretation creates the anomaly of extending to the unborn constitutional guarantees against deprivation of life at the hands of any person, while the lives of children and adults are only protected against governmental arbitrariness.

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D. UNCERTAINTY OF IMPACT

The ambiguity of the texts of the Buckley and Helms amendments makes it difficult to predict their interpretations. The texts permit courts to move in at least three possible directions. One possibility is the amendments will be given a broad interpretation consistent with the sweeping language of the amendments. The ideas of personhood for fetuses and a right to life for all people will be taken seriously and developed into substantial constitutional rights." This solution has the virtue of taking its key from the text of the amendments which speaks in terms of protecting the rights of all persons.

Another possibility is to give the amendments a narrow interpretation and read them as simple prohibitions on abortion. This interpretation would conform to the intent of the sponsors. Its disadvantage is the texts of the amendments say something quite different. They mention personhood and the right to life, not abortion.

This interpretation also raises the question of whether the guarantee will affect governmental action alone or whether it will reach private activities as well. Only if the amendments are interpreted to reach private as well as state action could they, with the exception of Buckley's S.J. 11, act as outright prohibitions on abortion."

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A third possibility is the amendments will have virtually no effect. This is the position of Prof. Laurence Tribe who argues the amendments only require the application of due process and equal protection to fetal life. Thus, under these amendments, courts would still have to weigh the fetal "person's" right to survival against the woman's right to bodily integrity. In testimony before the Senate subcommittee Prof. Tribe said:

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"Would due process and equal protection require that government protect the life of the dependent fetus (the unborn 'person') over the bodily and psychic integrity of the mother? I know of no constitutional principle that points to an affirmative reply."

For example, consistent with the amendment's due process and equal protection requirements, courts could consider the impact of a continued pregnancy on a woman's health. In the context of abortion the Supreme Court has given "health" the broadest possible meaning and has defined it as a "state of being... sound in body [or] mind." 103

This interpretation has been given implicit if inadvertent support by the amendments' sponsors. Under the Helms amendment no explicit exception is made to a fetus's right to survival for those cases where continuation of a pregnancy threatens a woman's life. The amendments' sponsors claim that an explicit exception is unnecessary because courts can balance the fetus's life against the

98 In the Civil Rights Cases. 109 U.S. 3 (1883), the Supreme Court drew clear lines between the thirteenth amendment's scope over all forms of involuntary servitude and the fourteenth amendment's express limitation on state action only.

See Sec. III A. infra.

100 See Sec. III C, infra.

101 Testimony of Laurence Tribe before the Senate Judiciary Committee, Subcommittee on Constitutional Amendments, October 8, 1974 (unpublished).

102 U.S. v. Vuitch, supra note 50 at 72.