tutionally cognizable interest in the preservation of their own lives, the state's interest in protecting their lives would not be sufficiently compelling to require a balancing of the life interest of the unborn with the interest of its mother. 25

26

How expansive this life and health exception will prove to be remains uncertain, but the Court's own language in recent opinions has provided it with a seemingly wide scope. In the 1971 case of United States v. Vuitch, a vagueness challenge to the District of Columbia abortion statute, the Court gave the concept of health an extremely broad definition. That construction effectuated increased access to abortion in the District without completely invalidating the statutes. In effect, the broad strokes of Vuitch were a half-step toward the decision in Roe v. Wade.27 In Roe, the Court enumerated a list of factors paralleling those relied upon in Vuitch to support its decision to expand a woman's right to privacy so as to include the right to procure an abortion.

The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity or additional offspring may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. 28

Were the Court to continue to employ such an expansive definition of health after Roe,2" the exception to state proscription of abortion after viability would swallow the rule, and the apparent accommodation of interests in Roe would then prove wholly illusory. The compelling interest in the preservation of the lives of the unborn then would be nothing more than another legal fiction.

Such a broad definition of health should not survive the judicial restructuring of abortion policy in Roe, unless it is made absolutely clear that the practical effect of such a definition is to establish abortion-on-demand for the full nine months of pregnancy as this nation's public policy." The Court considered the interests underlying the more expansive "health" concerns when it held that the protection of unborn human life was not sufficiently compelling to override maternal interests during approximately the first six months of pregnancy. After viability, which may occur as early as five months, the states' interest, even under the Court's formulation, becomes "compelling" and thus clearly justifies regulations restricting the accessibility of abortion. Only a highly predictable danger to the pregnant woman's life approaches the weight of the states' interest in precluding the destruction of her unborn offspring after that point.

The Question Presented

That the unborn were found to be excluded from the protection of the Constitution was the keystone of the Court's argument that the state has no interest in protecting them through the use of criminal or civil sanction. Since under the Court's expansive definition of "health" virtually any maternal interest may be sufficient to overcome the state's compelling interest in preserving prenatal life, it cannot be argued that the Court considered such life important enough even to be included in the balancing which did take place.

An examination of the standards employed by the Court in its negation of state power to recognize in the unborn a fundamental human right to life raises several difficult and serious questions concerning the limitations of judicial power in this area of constitutional law. The precise question presented to the Court in the abortion cases was a matter of first impression. In construing the Texas abortion statute, the Texas Court of Criminal Appeals had ruled that the lives of the unborn were protected not only by the statute," but also by the Texas constitution's counterpart of the due process clauses of the fifth and fourteenth amendments. 32 That determination of Texas law was binding upon the United States Supreme Court. 33 The effect of the Texas court's ruling was to narrow the question presented in Roe to the following: does the Federal Constitution forbid the protection of the rights of the unborn? Although the Court took note of the decision in Thompson v. State, it did not discuss its rationale.

If it be assumed that the fundamental rights of life, liberty, and property protected by the due process clauses of the fifth and fourteenth amendments find protection under terms of the Constitution but are not themselves of constitutional origin, it is clear that the Court was dealing with a difficult question indeed. The Texas courts had determined that the unborn were human beings whose lives were deserving of legislative protection. The Supreme Court disagreed, holding that no state may override the rights of a pregnant woman by simply adopting "one theory of life."35 But the ultimate resolution of the question was not nearly as simple as the Court's language made it sound. Although the effect of the Court's holding was to forbid state protection of a class of individuals found to be human beings,3" the Court's opinion contains no finding that such a state determination would be either factually erroneous or so unreasonable as to be precluded by a broad interpretation of the Federal Constitution.

Since the Court was apparently unwilling to disclose the constitutional basis of this particular facet of its ultimate resolution of the merits of Roe v. Wade, the holding, of necessity, must rest upon a determination that the judicial power of the United States includes the right to restrict the protection of fundamental liberties to those classes the Court deems worthy. This was the only theory upon which the Court's implication of a right to abortion could rest.**

While the Court undoubtedly has the power to engage in such interpretation, the exercise of that power gives an entirely new significance to the maxim that the "constitution is what the judges say it is."3" Not only does the Court control the technical interpretation of the Constitution, but by defining "person" narrowly to fit its perceptions of acceptable public policy, it controls the applicability of the due process clause to specific classes. This situation demonstrates the need for a thorough examination of the constitutional policy considerations involved in allowing the Court to be the sole arbiter of the existence of fundamental rights simply by basing the application of the due process clause upon its own perception of the relative worth of the parties whose rights are asserted." This question and others closely related to it are more fully discussed in Part V of this Comment.

Abortion: Some Common Assumptions

1. Abortion as a Matter of Personal Privacy

Perhaps the most commonly cited argument for the relaxation of restrictive state abortion laws is the assertion that the matter should be a private one to be decided by a woman in consultation with her physician. This argument was accepted by the Supreme Court in Roe and raised to constitutional proportions by its holding that the newly created right to abortion was included in a broad right to privacy based upon the fourteenth amendment's concept of liberty."

Notwithstanding the Court's finding as to the legal status of abortion, it is difficult to characterize abortion as a purely private matter unless one totally ignores not only the nature of abortion itself, but also the many outside interests which are affected by such a decision. It is necessary, then, to examine the logical basis for the finding and its relevance to the growing debate over proposals to overturn or limit the Court's decision by constitutional amendment." Assuming that a "private matter" may be defined as an individual interest in which government and uninvolved third parties can claim no valid or permissible interest, it follows that before the abortion decision may be characterized as a private matter between a woman and her physician the nonmaternal interests involved in such a decision must be identified and weighed.

The primary nonmaternal interests involved in the access question are those of the unborn. Since the unborn are physically incapable of asserting and protecting their own interests, those interests must be protected and asserted by government or by concerned third parties. Approaching the problem from the perspective of those who perceive abortion as the taking of human life, rejection of the privacy argument follows logically from the commonly held belief that the taking of human life is a proper matter of societal concern. This was the position taken by the Texas Court of Criminal Appeals in response to the privacy argument in Thompson v. States and argued before the Supreme Court by counsel for the State of Texas in Roe v. Wade. Given the interest being asserted by the opponents of legal abortion-the right of the unborn child to life-a pro-abortion argument based upon the right to privacy is no argument at all. Rather, it is a conclusion, based upon a decision that maternal interests take precedence over those of the unborn.

Even if it be assumed that the foregoing bases for the decision in Roe are valid, the privacy rationale as applied to strike down state regulations governing the time, place and manner of the abortion procedure still suffers from a serious practical defect. Legal abortion, as a medical procedure, is not a private matter. Although the personal decision to undergo the procedure, as well as the medical record of its performance, may be confidential, the actual procedure, performed by a state-certified medical practitioner in a regulated health facility, can hardly be considered a private occurrence. It is almost ludicrous to compare the sterile anonymity of the operating theatre or clinical facility to the privacy of the marital bedroom upheld in Griswold v. Connecticut, especially when the procedures involved in the clinical setting involve not only a high degree of technical expertise and danger to physical health," but also the economic incentives and considerations attendant upon the operation of any public service facility.

44

Thus, it is apparent that the privacy rationale must stand or fall on the validity of the conclusions which support it. The strongest argument against the legalization of abortion is that both prenatal and postnatal human life are equally deserving of constitutional protection. The Court rejected this proposition in Roe. In fact, the answer to the question of when constitutional protection for human life begins was left open by the Court. As a result, several proposals for constitutional amendments have been introduced to fill the gap.** Such proposals attack the very foundation of the Court's opinion and render the privacy rationale unsound as an argument in support of the decision; an attack upon the decision is an attack upon the argument itself.

2. "Early" Abortion as a "Relatively Safe" Medical Procedure

Although a detailed discussion of this particular topic is more properly reserved for an examination of the Court's invalidation of state regulation of the medical aspects of the abortion procedure, it is not without significance to the Court's resolution of the access question. The proposition, directly stated, is that the relative safety of the abortion procedure is relevant only to the extent that it compels the conclusion that the procedure should be legal.

Since the abortion question involves a clash between the interests of the unborn in continued growth and development and the mother's interest in a life unfettered by fetal and infant demands, the relative safety of the abortion process for the woman is irrelevant to the question of whose interests will prevail; the abortion process is obviously not designed to accommodate the interests of the unborn.

Once having identified the interests involved in the access question and having recognized the irrelevance of the safety argument one is led to investigate the reasons behind the Court's acceptance of the argument as a basis for decision. The answer to this inquiry becomes apparent with the realization that the force of the "relative safety" argument depends upon acceptance of two novel and substantially broader propositions: (1) that abortion laws were originally designed to protect the woman from unsafe medical procedures and were unconcerned with the preservation of prenatal human life; and (2) that prenatal human life is not worthy of constitutional protection when compared with the interests of a pregnant woman. The Court accepted both of these propositions.

The Fourteenth Amendment and the Unborn

To sustain the structure of the abortion cases it was essential for the Court to hold that the unborn are not persons entitled to the protection of the fourteenth amendment." From a perspective in which abortion constitutes the taking of a human person's life, the privacy argument would have had to yield," for one person's interest in privacy does not outweigh another's interest in remaining alive. In