ATTACHMENT A-6 1972 (1) Police/Community Relations in Philadelphia. (2) The Black Student in Wisconsin State University System. (3) Inequality in School Financing: Role of the Law. ATTACHMENT A-7 1971 (1) Civil Rights in Texas. (2) Ethnic Isolation of Mexican-Americans in Public Schools of the Southwest. (3) Who Will Wear the Badge? Study of Minority Recruitment. Efforts in Protective Services. (4) Political Participation of Mexican-Americans in California. (5) The Police and the Minority Community in New Bedford. (6) The Zoning and Planning Process in Baltimore and its Effect on Minority Group Residents. (2) A Report of an Investigation into an Educational Dilemma. (3) The Police and Minority Community in Wilmington, Delaware. (4) Employment Problems in Enid. (5) Police/Community Relations in East Los Angeles. (6) Where Are We Going From Here? Problems of the Spanish Surnamed and Migrant Population of Iowa. (7) Stranger in One's Land. (8) Mexican-Americans and Administration of Justice in the Southwest. (9) Racism in America and How to Combat It. (10) Federal Enforcement of School Desegregation. (11) Toward Equal Opportunity in the Construction Industry. ATTACHMENT B: SEX/WOMEN'S ISSUES ATTACHMENT B-1 1977 (1) A Woman, A Spaniel, A Chestnut Tree (film). (2) The Silent Victims: Denver's Battered Women. (3) Employment of Minorities and Women in Utah Criminal Justice System. (4) Abortion Services in Wyoming. (5) Children Who Follow the Crops. (6) Sex Bias in the United States Code. (7) Window Dressing on the Set: Women and Minorities in T.V. (8) Last Hired, First Fired: Lay-offs and Civil Rights. (9) Affirmative Action in Employment in Higher Education. ATTACHMENT B 1976 (1) Access to the Legal Profession in Colorado by Minorities and Women. (2) Access to the Medical Profession in Colorado by Minorities and Women. (3) The Media in Montana: Its Effects on Minorities and Women. (4) Equal Employment Opportunity at the State University of New York. ATTACHMENT B-3 1975 (1) Minorities and Women in Government: Practice versus Promise. (2) Credit Availability to Women in Utah. (3) Constitutional Aspects of the Right to Limit Childbearing. (4) Availability of Credit to Kansas Women. (5) Women and Poverty. (6) Minorities and Women as Government Contractors. ATTACHMENT B-4 1974 (1) Employment Practices in Montana: The Effects on American Indians and Women. (2) EEO in the State Government. ATTACHMENT C: PRISONS ATTACHMENT C-1 1976 (1) Georgia Prisons. (2) A Study of Adult Corrections in Louisiana. (3) In the Gray Shadow: Parole in Nevada. (4) Prisons in North Carolina. (5) Protecting Inmate Rights: Prison Reform or Prison Replacement. (6) Civil and Human Rights in Oregon State Prisons. ATTACHMENT C-2 1975 (1) Adult Corrections in Arizona. (2) Rights and Kansas State Prison System. (3) Warehousing Human Beings. ATTACHMENT C-3 1974 (1) The Delaware Prison System. (2) Colorado Prison System. (3) Alabama Prisons. (4) Inmate Rights and the Kansas State Prison System. (5) Inmate Rights and Institutional Response: the Nebraska State Prison System. ATTACHMENT C-4 1971 (1) Racial Conditions in Indiana's Penal Instiutions. [EXHIBIT NO. 39] CATHOLIC LEAGUE FOR RELIGIOUS AND CIVIL RIGHTS, Re S. 2300: U.S. Civil Rights Commission quality of research. Senate Subcommittee on the Constitution, U.S. Senate Judiciary Committee, DEAR SENATOR BAYH: During the hearings on S. 2300 you asked me to supply you with any information I had regarding the 1974 Report of the U.S. Civil Rights Commission entitled "Constitutional Aspects of the Right to Limit Childbearing". I have enclosed a copy of a Law Review article which I wrote concerning the same topic. It originally appearing in 63 Calif. Law Review 1250 and was reprinted in part in the Human Life Review. (I am sending you a copy of the reprint because it is less bulky.) I would direct your attention particularly to the historical discussion on the Fourteenth Amendment in the common law prior to the 1973 abortion cases. The Civil Rights Commission's conclusions are based on the same cases I have analyzed in my own work and rely without question on the work of an author whom I criticize for the reasons appearing in the article. I would request that once your staff has finished its review of this matter that the article itself be entered into the record, and I wish to re-emphasize that my criticisms of the Commission's work do not rest so much upon their conclusions but upon the disorganized and nonsupported manner by which they are reached. Very truly yours, ROBERT A. DESTRO, Abortion and the Constitution: The Need for a Life-Protective Amendment Robert A. Destro It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law and forgets that what seem to him to be first principles are believed by half of his fellow men to be wrong . . .1 ABORTIO ABORTION, the right to privacy, the right to life-these topics have been in the public eye since the decisions of the United States Supreme Court in Roe v. Wade' and Doe v. Bolton. These decisions have not settled the abortion controversy: it continues in Congress, in the courts, and in the media. The subject matter is complex and may be debated at many levels. However, without a focus or common ground of discussion, efforts toward resolution inexorably lead to more debate, more confusion, and ultimately, frustration and anger for the parties involved. This Comment undertakes to identify and explore several areas of debate. First, it discusses the rationale and practical effect of the Supreme Court's decision to legalize abortion in Roe v. Wade (hereinafter the "access" question). The focus then shifts to a discussion of the Court's decision in Doe v. Bolton and the existence of state power to regulate the means through which abortions may be obtained. Finally, mention is made of the background, rationale, and content of proposals for reform in these areas. It is hoped that the areas of debate relevant to this controversial issue will be seen as separate issues, each requiring careful and individualized consideration. Introduction I Roe v. Wade: A Question of Access In Roe v. Wade, which involved a challenge to the Texas abortion statutes, the Court held that a woman's decision to procure an abortion is constitutionally protected and may be restricted only in the face of a compelling state interest. The majority opinion identified Robert A. Destro received his law degree from the University of California (Berkeley) in 1975, and is now a practicing lawyer in Cleveland. This article first appeared in the California Law Review (Vol. 63:1250, 1975 by California Law Review, Inc.) and is reprinted here with permission. legitimate governmental interests in protecting the unborn and in ensuring that abortions are performed in circumstances maximizing the health and safety of the mother. These interests were then weighed against the more generalized interests of the pregnant woman." The Court's attempted accommodation of these interests was based upon a division of pregnancy into three periods, roughly equivalent to "trimesters." During the first trimester there was to be no interference with either the decision to abort or the means by which this decision was to be effectuated. In the Court's opinion, neither of the states' interests was so compelling as to justify any restriction upon either the personal freedom of the pregnant woman or the medical judgment of her attending physician.' The Court concluded that near the onset of the second trimester, the health hazards associated with abortion were sufficiently serious to outweigh the risks of continuing the pregnancy to term. Thus, the states' interest in safeguarding the well-being of the woman led the Court to permit state regulation of abortion procedure in ways reasonably related to the protection of maternal health. The Court felt that subsequent to the point at which the unborn attain viability" the states' interest in the protection of "potential life" would become compelling. During this final period of pregnancy, the state could, at its option, prohibit abortion except when necessary to preserve the life or health of the mother.10 Structuring the Interests By characterizing the major interests affected by a woman's decision to procure an abortion as those of the woman and the state, the Court was able to avoid the underlying conflict between fundamental personal rights-the clash between a woman's right to privacy and her unborn offspring's right to live-which lies at the heart of the abortion issue. Since the Court characterized the basic conflict as one between an individual's right to privacy in decisions regarding reproduction and a set of state-asserted interests, including a concern for "potential" life, any discussion of the primary nonmaternal" interests involved-those of the unborn could be avoided by assuming that those interests were somehow less than "real." The device which the Court employed to sidestep a resolution of the more difficult issues presented by the conflict between personal rights was both subtle and deceptively simple. The Court wrote: 12 Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest [emphasis added], recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone [emphasis by the Court].13 This slight shift in characterization of the interests at stake allowed the Court to eschew any frank discussion of the "difficult question of when life begins" and to reject the "rigid" claims argued by both sets of adversaries." By resorting to the concept of "potential life" to define the existence of the prenatal human organism, and by assuming that an individual's life must be "meaningful" before there is logical justification for protecting it," the Court was able to compromise the interests of the unborn by defining away their rights. While the Court felt that no "person" entitled to constitutional protection existed at conception or at any other period prior to live birth, the state could assert a compelling interest in protecting the unborn once they reached viability.1 The Court completely omitted any discussion of why the unborn should or should not have rights of their own. The rationale behind this marshalling of interests and the necessity for this approach to the issues were unexplained. 17 19 In an attempt to buttress its ultimate conclusion that the unborn can find no protection under the Constitution, the Court attached great weight to its professed inability to find agreement in the community at large as to when life begins. The validity of such a justification, however, is open to serious question. In fact, the answer to "the difficult question of when life begins" is a matter of common understanding. The increasing sophistication of the science of biology has made it impossible to deny that biologically, human life exists before birth. In fact, it is only within the context of the abortion controversy that this basic fact is called into question." In an editorial frankly discussing the changing attitudes toward the value to be placed upon individual human lives, California Medicine, the official journal of the California Medical Association, noted that all of the rhetoric surrounding the abortion controversy betrays "a curious avoidance of the scientific fact, which everyone really knows, that human life begins at conception and is continuous, whether intra- or extra-uterine until death."21 So, by sidestepping discussion of biological fact, the Court was able to recognize that viability, a concept fairly new to the controversy over abortion," signaled the period in which the state's interest in potential life would become compelling.23 Yet, even when viability has been reached, protection of the unborn is illusory because state protection of the unborn is not constitutionally compelled and may be set aside when the life or health of the mother is in jeopardy. Since, in the Court's opinion, the unborn have no consti 24 |