1975] a. ABORTION AND THE CONSTITUTION Section 2) Section 3) Section One 1323 including their unborn offspring at every stage of their biological development. 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. The Congress and the several states shall have power to enforce this article by appropriate legislation. Designed to overturn the central proposition of the Supreme Court's opinion in Roe v. Wade-that the unborn are not "persons" within the meaning of the fourteenth amendment-this section is typical of the first subcategory of Life-Protective proposals. It opts for a fairly restrictive approach to protecting the rights of the unborn by protecting only the right to life. Although the proposal was written in response to the immediate problem of abortion, it should be noted that its coverage is not so restrictive. By specifically mentioning age, health, function, and condition of dependency as impermissible criteria on which to deny the status of "person," the proposal seeks to counter the growing pressure to accord legal protection to life according to its “quality" rather than its existence. In effect, the proposal does nothing more than to declare the inherent equality of all biologically human life, a proposition supported by the history of the fourteenth amendment itself. In this regard it can hardly be said to be inconsistent with the history and spirit of either the original Constitution or the fourteenth amendment. Moreover, like the fourteenth amendment, the proposal provides, in its final section, for legislative enforcement of its essential terms. Unlike the fourteenth amendment, however, the enforcement powers are granted to the states as well as to Congress.355 Consistent with its limited intent, however, the proposal does not reach all the implications of the Court's decision in Roe, and may, in fact, freeze some of them into the Constitution. By restricting its sweep to the protection of the right to life, HJR 132 may leave intact. a possible interpretation of the Supreme Court's ruling to the effect that the unborn are not "persons" with regard to the other express due process rights, liberty and property. While the right of liberty is hardly one that can be exercised by any infant, born or unborn, the right to property presents a much more serious question. By virtue of the decision in Roe, the Supreme Court cast substantial doubt upon the ability 355. See U.S. CONST. amend. XIV § 5 (enforcement power vested in Congress). 1324 CALIFORNIA LAW REVIEW [Vol. 63:1250 of the courts to protect the property rights of the unborn, a function they had been exercising from the earliest days of the common law.350 A proposed amendment expressly limited to the right to life could be construed as a ratification of the argument that the Court's holding applies equally to property rights. Unless a legal system which forbids abortion except where the woman's life is in danger may be fairly described as "chaotic,"357 the first section of HJR 132, despite its flaws, can hardly be characterized as a radical idea. It merely adopts the policy alternative rejected by the Supreme Court in Roe, but found acceptable by the West German Constitutional Court when it struck down as unconstitutional a relaxed version of West Germany's criminal abortion law passed by the Bundestag. In this regard it is similar to other proposals for a Life-Protective amendment. 358 b. Section Two This section typifies those proposals that do not seek to redefine "person" and is the most remarkable in HJR 132, since it would operate against the individual as well as against the state. Although some question might be raised as to the propriety of using the Constitution as a restraint upon private action, such a procedure is not without precedent. The thirteenth amendment operates as a similar limitation on the right of the individual to hold another in slavery. Like the thirteenth amendment, enforcement of its provisions would be left to the discretion of the legislative branch of the government.359 Moreover, 356. The unborn child is considered to be a life in being for purposes of the rule against perpetuities. GREY, THE RULE AGAINST PERPETUITIES §§ 931-47. The right of the unborn to recover for prenatal injuries is also recognized. See, e.g., Scott v. McPheeters, 33 Cal. App. 2d 629, 634, 92 P.2d 678, 681 (3d Dist. 1931): The respondent asserts that the provisions of section 29 of the [California] Civil Code are based on a fiction of law to the effect that an unborn child is a human being separate and distinct from its mother. We think that the assumption of our statute is not a fiction, but upon the contrary that it is an established and recognized fact by science and by everyone of understanding. See generally HARPER & JAMES, THE LAW OF TORTS 1029 (1956); Prosser, The Law of TORTS 335-38 (4th ed. 1971). 357. This was precisely the argument raised in the briefs in Roe. See Brief for Appellant at 124, Roe v. Wade, 410 U.S. 113 (1973). Unfortunately, however, the brief writers failed to point out just where the chaotic situation they alleged might be found. Before Roe several states had made legal abortion available, either by legislative action or judicial decree. The vast majority did not. It is submitted that the decisions in Roe v. Wade and Doe v. Bolton have done more to create a chaotic situation by their constitutional-administrative law approach to the entire question than could fairly have been attributed to any of the statutory or administrative schemes in force before the decisions. See Part II supra. 358. Judgment of February 25, 1975, 39 BVerfG 1. A partial translation of the opinion appears as an appendix to this article. 359. Thus it cannot be argued that such a proposal, in and of itself, would make the 1975] ABORTION AND THE CONSTITUTION 1325 the modern analysis of state action already includes much that is "private" in laymen's terms.360 In so providing, the proposal would merely eliminate any need for a showing of "state action" before the courts could act to implement the policy embodied in the first and second sections. It too can hardly be characterized as a radical proposal; the common law had long recognized that even the mother could be held responsible for the destruction of her unborn offspring. C. The Need for Rationality 361 A policy position recognizing the existence of fundamental rights in the prenatal period is consistent with both constitutional history and precedent. In view of this consistency, it is understandable that the proponents of elective abortion consider the proposals to be anathemas.362 Since the Supreme Court expressly noted that the asserted right to elective abortion would collapse were the unborn to be accorded the protection of the due process clause,363 proposals such as HJR 132 will most surely provoke the most heated debate, in Congress as well as in the public forum. It is important therefore, to make clear just what is not involved in the controversy over these proposals. 1. Legal Abortion: A Policy Choice By taking a position in favor of legalized abortion, the Supreme Court chose between a number of difficult and controversial policy alternatives. Proposals for a constitutional amendment to reverse the Supreme Court's decision involve those same policy alternatives: they merely reach the opposite result. In view of this, it cannot validly be alleged that the arguments supporting a constitutional amendment are necessarily contingent upon religious belief or dogma.364 It is true that taking of unborn human life murder; the degrees of homicide are strictly matters of legislative determination. Remarks of Congressman John A. Bingham, House of Representatives, CONG. GLOBE, 39th Cong., 1st Sess. 432 (1866) ("You do not prohibit murder in the Constitution; you guarantee life in the Constitution.") To argue otherwise would be akin to alleging that the thirteenth amendment makes the holding of slaves a felony by its terms, a proposition which finds no support in the cases. 360. Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). 361. See, e.g., State v. Murphy, 27 N.J.L. 112, 114 (1858); In re Vince, 2 N.J. 443, 67 A.2d 141 (1949). 362. See, e.g., Sanders, Enemies of Abortion, HARPERS MAGAZINE, March 1974, at 24. 363. Roe, 410 U.S. at 156-57. 364. Closing Brief of Prosecution at 1077, United States v. Griefelt, 4 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNAL UNDER CONTROL COUNCIL LAW No. 10 (1946) (arguing that denial of legal protection to unborn children of Russian and Polish women was a crime against humanity). 1326 CALIFORNIA LAW REVIEW [Vol. 63:1250 the position of some religious groups is that abortion is morally abhorrent. However, the fact that an opinion may spring from religious beliefs does not mean that such a view is irrelevant in the political context. 365 The establishment clause should not be available as an excuse through which to avoid discussion of the non-religious policy aspects of the issue.3 366 Although it can safely be predicted that charges of religious bias will contribute significantly to the bitterness of the public debate over the abortion issue,3 ,367 it is imperative that debate in the academic and legal communities be unclouded by such inflammatory rhetoric; the integrity of the political process demands no less. The abortion issue is essentially a civil rights issue: one side favoring a woman's right to privacy, the other favoring her child's right to life. By the introduction of proposals for a Life-Protective amendment, questions have been raised as to the consistency of the Supreme Court's resolution of the abortion issue with the basic philosophical tenets and established principles of American constitutional law. What the ultimate responses to these questions should be is the topic of the remainder of this Comment, and a problem which will ultimately be solved by resorting to the supreme arbiter of such conflicts—the American people.368 2. The Fundamental Right to Life One need not dwell on the intricacies of constitutional interpreta 365. It is clear that someone's perceptions of moral propriety are always behind societal or legal prohibitions. It is not enough to make specious distinctions between "moral" and "legal" prohibitions; in either case the prohibited activity is considered by someone to be "wrong." The decision of the Supreme Court in Roe represents the obverse of the policy behind a Life-Protective Amendment. See Furman v. Georgia, 408 U.S. 238, 360 (1972) (Marshall, J., concurring) (death penalty found to be immoral and therefore unconstitutional). See also Prosecution Exhibit 491, United States v. Griefelt, 4 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBURG MILITARY TRIBUNAL UNDER CONTROL COUNCIL LAW No. 10 (1946) at 1084: has called forth objections on The decree on interruptions of pregnancy. 366. See, e.g., Tribe, The Supreme Court 1972 Term-Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. Rev. 1 (1973) [hereinafter cited as Tribe] (arguing that the feeling of necessity to draw a strict line is "unmistakably religious" and thus effectively structuring the argument in such a way as to make opposition to the Supreme Court's decision tantamount to an argument in favor of “an establishment of religion"). 367. See, e.g., NEWSWEEK, March 3, 1975, at 18. 368. The very nature of the amending process set out in article V assures that the Constitution does not impose a "minority" viewpoint on the American people. To argue against even exposing such a proposal to the monumental hurdles of the amendment process bespeaks more a fear by a minority that the majority will adopt it than a concern for the integrity of the constitutional process. 1975] ABORTION AND THE CONSTITUTION 369 1327 tion to appreciate that certain individual rights are fundamental. Such reasoning is implicit in the Bill of Rights, the "Civil War" amendments,370 and the franchise amendments,871 as well as in the proposed Equal Rights amendment. Consistent with this philosophy, the Supreme Court itself has shown little hesitation protecting these rights in appropriate cases.372 The right to life is clearly among those "so rooted in the traditions and conscience of our people as to be ranked as fundamental" and is given explicit protection in the fifth and fourteenth amendments.373 Thus, to deny an individual is a person and, therefore, not entitled to the rights of life, liberty, and property, is to reject the egalitarian philosophy embodied in the Declaration of Independence and the fourteenth amendment. The right to life is absolutely essential to the preservation of a free society; it is the foundation of all rights, described by Mr. Justice Brennan, concurring in Furman v. Georgia,374 as the "right to have rights." Whether this right shall be protected at all stages of human development is the issue to be decided. 3. The Dangerous Implications of Roe and Doe In Roe and Doe the Supreme Court exercised the power to say who is or, more importantly, who is not—a person within the meaning of the Constitution. The awesome nature of this power should be abundantly clear; the power over life and death is indeed the ultimate power. While the Court does have such power, the validity of its 375 369. U.S. CONST. amends. I-X. 370. Id. amends. XIII-XV. 371. Id. amends. XV, XIX, XXIV, and XXVI. 372. E.g., Weinberger v. Wiesenfeld, 419 U.S. 822 (1975) (sex-based discrimination); Brown v. Board of Educ., 347 U.S. 483 (1954) (segregation). 373. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). 374. 408 U.S. 238, 272 (1972) (Brennan, J., concurring) (death penalty). 375. Cf., Dredd Scott v. Sandford, 60 U.S. (19 How.) 393, 577-78 (1857) (Curtis, J., dissenting). The relevance of Justice Curtis' dissent in Dredd Scott to the exercise of judicial power in Roe is unmistakable: Before examining the various provisions of the Constitution which may relate to this question it is important to consider for a moment the fundamental nature of this inquiry. It is . . . whether the Constitution empowered Congress to create privileged classes who alone are entitled to the franchises and privileges of citizenship. If it be admitted that the Constitution has enabled Congress to declare what free persons. shall be citizens of the United States, it must at the same time be admitted that it is an unlimited power. If this subject is within the control of Congress it must certainly depend wholly upon its discretion. For certainly, no limits of that discretion can be found in the Constitution, which is wholly silent concerning it; . . . the necessary consequence [being] that the Federal Government may select classes of persons ... who alone can be entitled [to the rights of citizenship]. [emphasis supplied] There is, however, one difference between Dredd Scott and Roe: the former rests upon a |