In response to:
The Shortcut to Outlaw Abortion from the June 25, 1981 issue
To the Editors:
Professor Sager makes several errors in his thoughtful and provocative essay on congressional efforts to overrule Roe v. Wade [NYR, June 25].
First, some quibbles: the Supreme Court did not hold that “only in the third trimester of pregnancy can the woman’s right to abort her pregnancy be overridden by the state.” Rather, the Court said that the state could prohibit abortions at the point in the pregnancy when the fetus became “viable.” Nor are these prohibitions permitted “in the name of preserving life.” As Professor Sager acknowledges later in his essay, the Court expressly declined to decide whether a fetus was alive. It upheld the constitutionality of restrictions on post-viability abortions because, at that point, the state had a compelling interest in preserving the potential for human life.
Second, Professor Sager is surely correct when he asserts that a statute defining human life as beginning at conception would be ineffectual. Since the Roe Court thought it unnecessary to decide when life began in order to resolve the case before it, it logically follows that the result would have been the same had it determined that a fetus was alive.
The effect of a statute declaring a fetus to be a “person” within the meaning of the due process clause of the Fourteenth Amendment is more problematical, however. One of the many mysteries in the Roe opinion is why Justice Blackmun felt called upon to address this issue in the first instance. A long line of authority makes clear that the due process clause protects life, liberty, and property solely from infringements by the state. Plaintiffs in Roe were not defending state laws requiring abortions. Rather, they attacked the constitutionality of laws restricting the rights of private persons to end the “life” of a fetus. It is therefore hard to see what difference it would make if a fetus were protected from state infringements on its rights.
It would seem to follow as well that a congressional declaration that a fetus was a “person,” standing alone, would not validate state laws restricting abortions. Whatever meaning is attached to section five of the Fourteenth Amendment, it surely was not intended to expand the scope of state power. On the contrary, the language and legislative history of the amendment make clear that its major purpose was to expand federal power at the expense of the states. Thus, even if a fetus were a “person” for due process purposes, this fact would give the states no additional power to protect it from private action.
If Congress were to couple a declaration of the personhood of fetuses with a federal statute outlawing abortions, that might be a different matter. Professor Sager asserts that congressional power under section five is limited to the protection of “underenforced” constitutional rights. But surely a classic example of “underenforcement” is the judicially imposed requirement of state action before Fourteenth Amendment protection attaches. Indeed, one could view the statute upheld in Katzenbach vs.Morgan as “stretching” the concept of state action to encompass the disabilities suffered by Puerto Ricans unable to vote because of their illiteracy in English.
It will not do to suggest, as Professor Sager does, that section five authorizes statutes which expand rather than restrict the rights of individuals vis à vis the states. The expansion of the rights of some individuals always restricts the rights of other individuals. The statute validated in Morgan restricted the right of English-speaking citizens to have their votes undiluted by the votes of those who could not speak English. The statute pending before Congress expands the rights of fetuses—a discrete and insular minority if ever there was one—to have their “life” or potential life preserved.
All this leads to the third and most significant problem with Professor Sager’s essay. The argument is premised on the assumption that it is possible to address congressional efforts to overrule Roe without addressing the merits of Roe itself. It is easy to see why Professor Sager wants to pursue this course. Arguments about the constitutionality of abortion statutes are complicated and controversial, and a fair-minded person must concede in the end that the issue is close and the proper resolution not free from doubt. But the arguments cannot be avoided.
Suppose that a future Court were to declare that women were not “persons” within the meaning of the Fourteenth Amendment and that legislation were introduced in Congress designed to undo this decision. Is it likely that Professor Sager could write an essay arguing that those voting for the bill had violated their “oath of office—not to mention [their] sense of self-respect”? Is it not more likely that he would emphasize Congress’s historic duty to interpret constitutional provisions for itself and the important role which its power to regulate the Court’s jurisdiction plays in checking judicial tyranny?
There is, of course, a vital distinction between that issue and this one. A holding that women were not “persons” would be a constitutional and moral monstrosity. Roe, in contrast, is certainly defensible and probably right. But unless its defenders are prepared to argue that it is right—right as constitutional law, right as social policy, and right as moral philosophy—it will not survive, and it will not deserve to survive.
Georgetown University Law Center
Lawrence Sager replies:
I have no quarrel with Professor Seidman’s quibbles. Viability is the point at which the state can restrict the right of a woman to abort her pregnancy in the service of the potential for human life. But the Court in Roe v. Wade noted that the point of viability ranged in individual cases from the twenty-fourth to the twenty-eighth week of pregnancy, and, of course, the potential for postnatal life can be protected only by preserving the fetal organism. Hence my statement that “[o]nly 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.”
But while I doubt that my rough statement of the decision in Roe v. Wade placed the reader at any disadvantage, Professor Seidman’s slight of my analysis of Katzenbach v. Morgan does lead him astray. His argument in his second point is with the proposition that Congress can expand but cannot restrict “the rights of individuals.” This he takes to be refuted by the observations that English-speaking citizens had their votes diluted by the legislation which was upheld in the Katzenbach decision and that fetuses surely stand to gain if Congress succeeds in curtailing the abortion right recognized in Roe v. Wade. But this argument tacitly equates the “rights of individuals” with the avoidance of any harm to, or the conferral of any benefit on, any individual or entity. So understood, Professor Seidman’s characterization of my argument badly misses the mark. My point is that where the Court has not made a firm analytical judgment as to the validity or nonvalidity of a particular claim of constitutional right, but has merely deferred to state legislative judgments on institutional grounds, Congress ought to be free to complete the constitutional map left unifinished by the Court; but where the Court has clearly recognized a claim of constitutional right, Congress cannot override such a judicially established right. If the Court had recognized a right of English-speaking voters to protect the vigor of their ballot, or a right of fetuses to governmental protection, then Professor Seidman would have an argument…but then Katzenbach v. Morgan and Roe v. Wade would have been decided differently.
Finally, Professor Seidman suggests that I would sing a different tune if the Court were to give birth to a “moral monstrosity,” and that the human life bill is only wrong if Roe v. Wade is right. It is true that Professor Seidman can paint a picture of a Supreme Court which did so badly so often that we would all be forced to reconsider the institutional arrangements which have made the Court the final arbiter of our constitutional affairs. But it hardly follows from such an observation that any time we think that the Court is wrong, even clearly wrong, we should be prepared to scuttle the most basic premises of our constitutional governance. My claim is for fidelity to settled and esteemed institutions; it seems to me clear that the sponsors of the human life bill are willing to pay an indefensibly high institutional price to undo Roe v. Wade, whether or not that case was correctly decided.
October 22, 1981