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The Shortcut to Outlaw Abortion

The great controversy over abortion in Congress and in the country was set on its current course on January 22, 1973, when the Supreme Court decided the case of Roe v. Wade. The Court had not previously decided whether state laws prohibiting abortion were constitutional. When a woman in northern Texas challenged her state’s abortion law, seven of the nine Justices joined in the Court’s opinion, which recognized that women have a constitutional right to undergo abortion, a right flowing from the “right of privacy” based on the due process clause of the Fourteenth Amendment. In the first trimester of pregnancy that right is nearly absolute; in the second, it is subject only to reasonable regulations directed to preserving the health of the woman herself. Only in the third trimester of pregnancy can the woman’s right to abort her pregnancy be overridden by the state in the name of preserving fetal life.

Since the decision in Roe v. Wade, the Supreme Court has on a number of occasions reaffirmed and extended its reasoning to strike down various state restrictions on abortions, including requirements that abortions be performed in specially accredited hospital facilities and that the woman’s husband or parents consent to the abortion. The Court has refused to apply the Roe principle only under limited circumstances. Twice it has declined to convert the right of a woman to be free from direct legal restraints on abortion to a right to receive public funds to pay for an abortion, even when such funds are available for other medical procedures, including childbirth. And this March, the Court upheld a state law requiring notice to parents of an impending abortion where immature and “unemancipated” minors are involved. In none of these latter cases has the Court questioned the validity of the Roe v. Wade principle itself.

But if the Court has made its peace with the prickly constitutional issue of abortion rights, many others plainly have not. Religion and politics converge in the abortion issue to produce deep passions and strategies which are arrayed against the woman’s right to have an abortion and in favor of “the right to life” of the embryo or fetus. As with other Supreme Court decisions that have set off social controversy, such as those prohibiting religious observances in the public schools, the opponents of Roe v. Wade immediately considered the possibility of a constitutional amendment to nullify the Court’s decision.

Later in 1973 Indiana became the first state to enact legislation calling for a national constitutional convention to draw up an anti-abortion amendment. In Congress, resolutions were quickly introduced in a parallel effort to initiate such an amendment. Especially notable is the amendment proposed by Senator Jesse Helms, the conservative Republican senator from North Carolina, which sought to extend constitutional protection to life “from the moment of conception.” Anti-abortion forces in the United States range from Catholic and Southern Baptist groups to the Republican party itself, and from groups with a variety of associated interests like the Moral Majority to single-issue groups like the National Right to Life Committee. These groups have had in common support for some form of “Human Life Amendment.”

The Constitution, however, does not amend easily. Under one method of amendment, two-thirds of the states must enact legislation calling for a national constitutional convention to propose amendments to the Constitution; but the sustained efforts of anti-abortion forces have so far produced only nineteen of the thirty-four required state endorsements of such a convention. Alternatively, two-thirds of the members of both the Senate and the House must agree to propose an amendment. While backed by Reagan during the 1980 campaign, and taken seriously in Congress, the Human Life Amendment has not gathered the necessary support. Even if either process were eventually to succeed, it would still require the ratification of three-fourths of the states to make the resulting amendment part of the Constitution. Ratification itself can be a messy and difficult affair, as the proponents of the Equal Rights Amendment have learned.

All this lends great appeal to constitutional shortcuts. Senator Jesse Helms and his ally Representative Henry J. Hyde—the Illinois Republican who wrote the legislation curtailing the use of Medicaid funds for abortions—think they have found a way around the intentionally cumbersome procedures of constitutional amendment. They have introduced bills in the House and Senate calling for the enactment of a human life statute. Its key provision is strikingly similar to the amendment Senator Helms has been advocating since 1973:

…Congress hereby declares that for the purpose of enforcing the obligation of the states under the fourteenth amendment not to deprive persons of life without due process of law, human life shall be deemed to exist from conception, without regard to race, sex, age, health, defect, or condition of dependency; and for this purpose “person” shall include all human life.

Also included in the human life statute is a provision that would deprive the lower federal courts of jurisdiction to grant relief designed to protect the abortion rights of pregnant women. This attempt to strike out at the federal judiciary itself is mirrored in a number of other bills pending in Congress which would similarly strip the federal courts of jurisdiction to intervene in abortion controversies. At least one of these bills would go further than the human life statute and would strip the Supreme Court of jurisdiction as well. These jurisdictional proposals share with the life-defining provision of the human life statute the goal of deflecting the constitutional premise of Roe v. Wade by a simple statutory maneuver.

The human life statute has been hailed not only by its sponsors but by President Reagan as a better constitutional mousetrap, a means of toppling Roe v. Wade without the bother—or the national consensus—that an amendment would require. On its face the idea seems to consist of not so much a clever strategem as an act of defiance. If matters were that simple, Congress could declare that school prayers did not involve an establishment of religion, that schools divided along racial lines were equal, or that advocating Keynesian economics was not protected by the First Amendment. Helms and Hyde, however, are making their proposal with a straight face, and getting considerable backing for it. Their argument has to be looked at closely.

The startling idea that Roe v. Wade can be undone by a simple legislative stroke is based on a misreading of two Supreme Court decisions. One is Roe v. Wade itself. The Court in Roe declined to answer the question of “when life begins” in the face of what it took to be a failure of “medicine, philosophy, and theology” to arrive at any consensus on the matter. The Court did, however, plainly decide that a human embryo or fetus could not be considered a person within the meaning of the Fourteenth Amendment, notwithstanding the desire of a state legislature to protect such an organism against the decision of a woman to abort her pregnancy.

The argument in favor of congressional authority to enact the human life statute depends on two propositions: that if it could somehow be settled that for moral purposes life begins at conception, the Court would revise its judgment about the Fourteenth Amendment and confer the status of a person on prenatal organisms; and that Congress has the ability and constitutional authority to settle the matter of when life begins. The first of these propositions is plausible. The second is simply wrong.

To support it, however, Helms and Hyde and their allies depend on a misreading of a second Supreme Court decision. To show that Congress can settle the question of when life begins and thereby erase Roe v. Wade, they point to a legal doctrine that was prominently stated in Katzenbach v.Morgan, a case decided in 1966. This case seems an unlikely source of authority for the human life statute. It upheld federal legislation designed to ensure the voting rights of the Puerto Rican population of New York by barring the use of English literacy tests to determine whether people who had received their basic education in Puerto Rico were entitled to vote.

But Katzenbach raises important questions about the scope of Congress’s authority to enact legislation under section 5 of the Fourteenth Amendment, which gives Congress the “power to enforce, by appropriate legislation, the provisions” of the amendment. What makes Katzenbach so interesting for these purposes is that several years before this decision, the Court had upheld literacy tests as constitutional. It therefore approached the issue in Katzenbach on the assumption that New York’s literacy test as applied to Puerto Ricans who sought to vote would likewise have been upheld. Thus the Court in Katzenbach had to decide whether Congress could exercise its power, under section 5, to enforce the Fourteenth Amendment by prohibiting state conduct which the Court would not itself say was in violation of the amendment.

The Court upheld the voting rights legislation, and its decision to do so was not an aberration. The proposition that Congress has the power to extend the judicially recognized protections of the Fourteenth Amendment, though not altogether free from doubts, has been reflected in other civil rights enforcement cases and has figured actively in recent decisions. If Congress can augment judicially enforced Fourteenth Amendment rights, the backers of the human life statute now ask, why should it not extend Fourteenth Amendment rights to prenatal organisms, and thus fill in the gap left by the Court’s self-proclaimed inability to determine when life begins?

This line of argument confuses two very different situations in which Congress might try to alter the Court’s reading of the Fourteenth Amendment. In the first situation, the Court has permitted the states to engage in a particular sort of conduct, and Congress, exercising its section 5 powers, undertakes to restrain the states. In the second situation, the Court has prohibited the states from engaging in a particular sort of conduct because it violates rights specified in the Constitution, and Congress then undertakes to free the states from this constitutional restraint. Katzenbach v. Morgan involved the first sort of situation; the human life statute would involve the second. And for constitutional purposes, there is a vast difference between them.

When Congress seeks to permit the states to deny individuals constitutional rights that the Court has identified as limiting the power of the states to act, it is necessarily placing itself in stark disagreement with the Court over the content of the parts of the Constitution that comprise rights. Such an act is fundamentally at odds with the role of the Supreme Court in our legal tradition as the final arbiter of constitutional rights. Placing rights at the mercy of legislative majorities is just what the Court declines to do when it decides cases like Roe v. Wade.

In contrast, cases like Katzenbach v. Morgan do not put Congress in the position of denying rights that the Court has identified and enforced against the state. All that such a case does is give Congress authority to enact statutes, which, like other federal legislation, take precedence over contrary state legislation by virtue of the supremacy clause of the Constitution. There is, of course, a puzzle in such cases. Congress can enact legislation only if the Constitution gives it power to legislate on the matter in question. If the only grant of power available to Congress in a case like Katzenbach is section 5 of the Fourteenth Amendment, then its power is confined to enforcing the amendment. The puzzle is how can Congress “enforce” the Fourteenth Amendment by placing more stringent restrictions on the states than the Court itself thinks the amendment entails. It is an important puzzle, and I want to suggest its solution. But more important for our purposes here than the correct solution to this puzzle about authority under section 5 is a clear understanding of what is an incorrect solution.

Congress’s authority under section 5 does not support the view that Congress can by simple statutory fiat overrule the Court’s judgment about what rights are guaranteed by the Constitution—and thus at will inflate or deflate the Constitution like some legal beach ball. If it developed that no explanation for Congress’s section 5 authority were available except one that made constitutional rights the prey of the legislative process, then the appropriate conclusion would be that Katzenbach was wrongly decided. Nothing about the modest jurisprudence concerning section 5 suggests that it ought to demolish settled premises about the position of the Court as arbiter of constitutional rights.

In fact, there is a plausible explanation for Congress’s section 5 authority that does not require us to rebuild our legal system in order to accommodate Katzenbach v. Morgan. The Supreme Court has exercised a great deal of selfrestraint in enforcing the notoriously vague, open-ended provisions of the Fourteenth Amendment. When Congress acts to enlarge rights under its section 5 power, it is more fully enforcing provisions of the amendment that the judiciary has, in effect, left under-enforced. It is completing a constitutional picture which the Court, for reasons turning on its perceptions of institutional propriety, has left incomplete. What the Court has recognized as individual rights flowing from the Fourteenth Amendment necessarily represents its analytical judgment on the minimum grant of rights in the Constitution. But a decision of the Court not to recognize such a right when it is asked to restrain a state’s authority may well embody only a judgment on the limits of its appropriate function in enforcing the Constitution, a function that can be augmented by congressional efforts.

At the mention of institutional restraint, one can hear the sponsors of the human rights statute cry “aha!” They would like to read Roe v. Wade as an instance of institutional restraint. The Court, they argue, could not decide when life begins because of its institutional limitations, so Congress will gladly lend a hand in settling this great biological question. A Senate subcommittee has already begun hearings on it. But this effort has as its premise a grave and obvious misconstruction of the Court’s statement in Roe that it would not fix the moment at which life begins. If all that were entailed was a majority vote by a legislature on the question, Roe v. Wade would never have been decided as it was.

In 1973, forty-six of the states had legislation severely restricting abortion, much of which was enacted or perpetuated in the name of protecting fetal life. The Court in Roe can only be understood as holding that the question of when, and whether, a prenatal organism acquires the moral status of human life is so shrouded in controversy as to provide no constitutional justification for restricting the right of a pregnant woman to abort her pregnancy. This is the only sensible meaning of the yoked propositions that the Court would not resolve the question of when life begins, but that the Fourteenth Amendment does not encompass the unborn in its protection of persons. The point was that Texas could not “by adopting one theory of life…override the rights of the pregnant woman.” Neither can Congress.

There do exist some situations where Congress can legislate constitutionally and the states cannot. These involve issues of peculiarly national concern under our constitutional scheme, like the legal status of aliens or the regulation of interstate commerce. But on the right of privacy enjoyed by a woman under Roe v. Wade, Congress can claim no such special constitutional competence. The problem with the state laws invalidated in Roe was not that they were local laws on matters that properly were the concern of the Congress; the problem concerned the absence of an underlying group of settled moral premises upon which any government in the US could base legislation restricting the right of a pregnant woman to abort her pregnancy. Even 500 scientists, singing in unison, cannot give Congress the ability to surmount this difficulty.

The sins of the human rights statute extend beyond the bald unconstitutionality of its attempt to define when life begins. In addition to its central provision defining persons, the statute would also deprive the lower federal courts of jurisdiction to protect abortion rights. Other legislation pending in Congress would go further, and divest the Supreme Court of jurisdiction as well. Attempts of this kind to subvert the constitutional judgment of the Supreme Court by depriving the federal judiciary of jurisdiction are themselves of very dubious constitutional status. Moreover, adopting limitations of this sort would set a dangerous and tawdry precedent for the sabotage of the integrity of the judicial process and the rule of law.

Abortion rights are only one instance of the attack on federal court jurisdiction. The possibility of erasing unwanted Supreme Court decisions by the simple expedient of eliminating the federal courts from the litigation process is being raised by the extreme opponents of other of the Court’s controversial decisions, such as those involving school prayer and racial busing. Senator Helms himself is the author of a bill that would strip all federal courts of jurisdiction to hear cases involving “voluntary” school prayer exercises. Many such bills have been introduced. Were any one of them to overcome the good sense and responsibility which have thus far guided Congress, the result could well be an open season on the federal judiciary.

Congress plainly does have authority to regulate the jurisdiction of the federal courts. Under Article III of the Constitution, the lower federal courts depend upon grants of jurisdiction from Congress; and while the Supreme Court is established and granted jurisdiction directly by Article III, its appellate jurisdiction is subject to “regulations” and “exceptions” made by Congress. But, of course, when Congress acts to determine the jurisdiction of the lower federal courts, or to make exceptions to the jurisdiction of the Supreme Court, it is, as always, bound by the restraints of the Constitution. Thus, were Congress to make federal lawsuits or appeals depend on the political affiliation, race, or financial status of the litigants, such restrictions would clearly be unconstitutional.

In the current proposals to divest the federal courts of jurisdiction, access to the federal courts is made to depend on the nature of the constitutional right upon which a litigant relies. Some litigants would be denied entry to the courts precisely because Congress anticipates that the federal courts would uphold their claims of constitutional right. Such proposals depend on a very dubious reading of the Constitution that would permit Congress to accomplish results through the manipulation of jurisdiction which it could not constitutionally achieve through ordinary legislative measures. Congress lacks the power to frustrate, by mere statutory enactment, claims of constitutional right that the Court has vindicated; it enjoys no greater power when it chooses to express its will in jurisdictional terms. Just as the person-defining provision of the human life statute would be unconstitutional, so too would be its judicial surrogate.

Legislation that would go further than the human life statute and would attempt to strip the Supreme Court as well as the lower federal courts of jurisdiction faces an additional constitutional obstacle. A strong case can be made for the proposition that the structure of the Constitution and our experience under it assign to the Supreme Court a fundamental role in our nation’s legal affairs with which Congress may not interfere. If there is any such “essential function” of the Supreme Court, it consists in the monitoring of state court decisions which uphold state law, or practice, against claims of federal constitutional right. Supreme Court review of such state court decisions is the only possible means of assuring that federal constitutional rights are given their due.

In 1789, when Congress enacted the first Judiciary Act, the appellate jurisdiction of the Supreme Court was greatly circumscribed; but even then Congress recognized the need for review of state court decisions upholding state conduct against claims of federal right, and allowed the Court full and unfettered jurisdiction over such cases. The Court has always enjoyed such jurisdiction, and congressional attempts now to remove it may well be unconstitutional. Since the matters of greatest constitutional controversy involve Supreme Court restraint on state behavior, current proposals to divest the Court of jurisdiction address this review function, which has been at the core of the Court’s power.

A great vice of the proposed congressional bills limiting jurisdiction is their cynical premise about the respect of the state courts for the rule of law upon which they depend. State judges are of course obliged to follow the dictates of the Constitution, and are bound by the determinations of the Supreme Court on the meaning of the Constitution. By shifting the full responsibility for the enforcement of particular constitutional rights to the state courts, the opponents of Supreme Court decisions plainly expect, and openly encourage, state courts to defy existing Supreme Court mandates. In proposals like the human life statute, which would leave the jurisdiction of the Supreme Court intact but remove that of the lower federal courts, the apparent expectation of the sponsors is less savory still. Their idea must be that the state courts will somehow manage to frustrate the will of the Supreme Court by delaying the adjudication of controversies, making artful findings of fact, refusing to grant injunctive relief in emergency situations, and shading interpretations of Supreme Court decisions with the hope that the Court’s busy docket will prevent it from accepting cases for appellate review. It is difficult to imagine a scheme that would do more to undermine national respect for the rule of law.

In the end, the human life statute emerges as a case study in disregard of the settled institutional arrangements of our legal system. Because it will be found unconstitutional by the courts, it will ultimately have no legal effect on abortion rights. But that Congress would undertake such a venture can only be read as precedent for the sacrifice of the orderly administration of our constitutional affairs to intense political or religious impulses. It could be that the anti-abortion forces understand full well the constitutional demerits of the human life statute and are promoting it with the hope that its invalidation will fuel the movement for an amendment to the Constitution. But any member of Congress who knowingly lent himself or herself to such an effort would be damaging our national institutions in a way that plainly violated his or her oath of office—not to mention his or her sense of self-respect.

Letters

Abortion and the Law October 22, 1981

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