410 U.S. 113 (1973).Google Scholar

Examples are S.158, 97th Cong., 1st Sess. (1981); S.J. Res. 110, 97th Cong., 1st Sess. (1981).Google Scholar

For evidence of a renaissance of such attitudes in our civilized society, see Rights, Animal Obligations, Human (Regan, T. Singer, P., eds.) (1976); and Stone, , Should Trees Have Standing? Toward Legal Rights for Natural Objects, Southern California Law Review 45:450 (1972).Google Scholar

The reference is, of course, to Kant's second formulation of his categorical imperative: “So act to use humanity, both in your own person and in the person of every other, always at the same time as an end, never simply as a means.” Of it, one commentator has said: Strictly speaking, this formula, like all others, should cover rational beings as such; but since the only rational beings with whom we are acquainted are men, we are bidden to respect men as men, or men, as rational beings. This is implied in the use of the term ‘humanity’—the essential human characteristic of possessing reason, and in particular of possessing a rational will. It is in virtue of this characteristic that we are bound to treat ourselves and others, never simply as a means, but always at the same time as ends. H.J. Paton, The Categorical Imperative: A Study in Kant's Moral Philosophy (1947) at 165.Google Scholar

As two samples from this widespread genre, consider the following:Google ScholarGoogle ScholarGoogle ScholarGoogle ScholarGoogle ScholarGoogle ScholarGoogle ScholarGoogle Scholar

Shakespeare, W., The Merchant of Venice, Act III, Sc. 1, lines 58–72.Google Scholar

Immediately after hearing the speech, Salanio says to Salerio of the entrance of Tubal: “Here comes another of the tribe: A third cannot be matched, unless the devil himself turn Jew.” Id. at lines 83–85. Perhaps a half dozen times in the play, Shylock is referred to by name. Otherwise he is always referred to and addressed as “Jew.” Incredibly, this holds true even for the man who placed the speech in Shylock's mouth. Thus, Shakespeare begins Act II, Scene Five, for example, with the stage direction: “Enter Jew and his man that was the Clown.”Google Scholar

Bok, S., Who Shall Count as a Human Being?: A Treacherous Question in the Abortion Discussion, in Abortion Pro and Con (Perkins, R.L., ed.) (1974) at 91, 97.Google Scholar

See Merton, A.H., Enemies of Choice (1981) at 91–116, 133–50.Google Scholar

One recent public opinion poll revealed that, while 65 percent of the Catholic women polled believed that abortion was “morally wrong,” 61 percent of them believed that the law should not prohibit abortion. Henshaw, S. Martire, G., Abortion and the Public Opinion Polls, Family Planning Perspectives 14(2): 53 (March/April 1982) at 54.Google ScholarPubMed

Biggers, J., When Does Life Begin?: Congress Has Asked the Unanswerable, The Sciences 21(10): 10 (December 1981).Google Scholar

S.158, 97th Cong., 1st Sess. (1981).Google Scholar

See Grobstein, C., A Biological Perspective on the Origin of Human Life and Personhood, in Defining Human Life: Medicolegal Implications (Doudera, A.E. Shaw, M.W., eds.) (Health Administration Press, Ann Arbor, Mich.) (forthcoming 1983).Google Scholar

Biggers, , supra note 11.Google Scholar

Section 1 of the fourteenth amendment reads in its entirety:Google ScholarGoogle Scholar

Roe v. Wade, supra note 1, at 156–57.Google Scholar

Id. at 159.Google Scholar

Id. at 158–59 (footnotes omitted).Google Scholar

See, e.g., Gulf, C. & S. F. R. Co. v. Ellis, 165 U.S. 150 (1897); Covington & Lexington Turnpike Road Co. v. Sanford, 164 U.S. 578 (1896); Charlotte, C. & A. R. Co. v. Gibbes, 142 U.S. 386 (1892); Minneapolis & S.L.R. Co. v. Beckwith, 129 U.S. 26 (1889); Missouri P.R. Co. v. Mackey, 127 U.S. 205 (1888); Pembina Consolidated Silver Mining and Milling Co. v. Pennsylvania, 125 U.S. 181 (1888); Santa Clara County v. Southern P. R. Co., 118 U.S. 394 (1886).Google Scholar

Smyth v. Ames. 169 U.S. 466, 522 (1898).Google Scholar

See First National Bank v. Bellotti, 435 U.S. 765 (1978) (freedom of speech); NAACP v. Button, 371 U.S. 415 (1963) (freedom of association); Grosjean v. American Press Co., 297 U.S. 233 (1936) (freedom of the press).Google Scholar

Santa Clara County v. Southern P.R. Co., supra note 19.Google Scholar

See Annot., 56 L. Ed. 2d 895, 899–900 (1979).Google Scholar

This is the language used to express the outside limits of the protections of the fourteenth amendment. As a minimum, all persons are entitled to such protection with respect to the exercise of any rights. Where “fundamental” rights are involved or special burdens are placed upon persons who belong to “suspect classifications,” more strict limits are theoretically placed upon state action. See L.H. Tribe, American Constitutional Law (1978) at 1000–1002.Google Scholar

U.S. Const. amend. V.Google Scholar

Bellis v. United States, 417 U.S. 85 (1974); United States v. White, 322 U.S. 694 (1944).Google Scholar

For support for this theory behind the privilege against self-incrimination, see Griswold, E., The Fifth Amendment Today (1955).Google Scholar

[I]ndividuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties nor to be entitled to their purely personal privileges. Rather they assume the rights, duties and privileges of the artificial entity or association of which they are agents or officers and are bound by its obligations. In their official capacity, therefore, they have no privilege against self-incrimination.Google ScholarGoogle Scholar

Towne v. Eisner, 245 U.S. 418, 425 (1918).Google Scholar

60 U.S. 393 (1857).Google Scholar

Id. at 404–05.Google Scholar

80 C.J.S. Slaves, §4 (1953).Google Scholar

Id. at 1320.Google Scholar

80 C.J.S. Slaves, §8 (1953).Google Scholar

Id. at 1325–26.Google Scholar

Perkins, R.M., Criminal Law (2d ed. 1969) at 29.Google Scholar

Id. at 140.Google Scholar

See Annot., 50 A.L.R. 619 (1927).Google Scholar

See Shaw, M. Damme, C., Legal Status of the Fetus, in Genetics and the Law (Milunsky, A. Annas, G., eds.) (1976) at 3, 4.Google Scholar

Despite pious pronouncements to the contrary, blameworthiness (rather than deterrence or reform) still seems to play the central role in the criminal law. As proof, consider the terms in which debate over the insanity defense is conducted:Google ScholarGoogle ScholarGoogle ScholarGoogle ScholarGoogle ScholarGoogle Scholar

Prosser, W.L., Law of Torts (4th ed. 1971) at 335.Google Scholar

Id. at n.14.Google Scholar

Id. at 335.Google Scholar

65 F. Supp. 138 (D.D.C. 1946).Google Scholar

Prosser, , Supa note 41, at 336.Google Scholar

Id. at 337.Google Scholar

Id. at 338.Google Scholar

See Annot., 84 A.L.R. 3d 411 (1978); Danos v. St. Pierre, 402 So. 2d 633 (La. 1981); Shirley v. Bacon, 267 S.E.2d 809 (Ga. App. 1980).Google Scholar

See Jorgensen v. Meade-Johnson Laboratories, 483 F.2d 237 (10th Cir. 1973); Renslow v. Mennonite Hospital, 367 N.E.2d 1250 (Ill. 1977). Compare Morgan v. United States, 143 F. Supp. 580 (D.N.J. 1956).Google Scholar

Renslow, , supra note 49, at 1255.Google Scholar

Prosser, , supra note 41, at 22.Google Scholar

Id. at 335.Google Scholar

See Scott v. Kopp, 431 A.2d 959, 962 (Pa. 1981) (Larsen, J. dissenting).Google Scholar

See Mass. Gen. Laws Ann. c.203, §17; c.206, §24.Google Scholar

For example, I was appointed counsel for a fetus in one case where a maternal grandmother sought authority to consent to an abortion for her daughter who was a long-term inmate of a mental institution. Out of an abundance of caution, the judge wanted the record to reflect advocacy for the fetus in addition to that which was provided for the mother. Ultimately, the court decided that, though mentally ill, the mother should be allowed to refuse an abortion since she was not proved to be incompetent to make that decision. In re Culotta, , Middlesex Probate No. 522761 (Mass. November 19, 1979).Google Scholar

Thellusson v. Woodford, 31 Eng. Rep. 117, 163 (1798) ( Buller, J.).Google Scholar

Roe v. Wade, supra note 1, at 153.Google Scholar

Id. at 156–59.Google Scholar

See Tribe, , supra note 24, at 1147–74.Google Scholar

The Court never makes its reasoning in this regard explicit, but it is suggested in the following:Google ScholarGoogle ScholarGoogle Scholar

Nowak, Rotunda, Young, , Constitutional Law (1978) at 519–22.Google Scholar

Id. at 522–27.Google Scholar

See Fave, La Scott, , Criminal Law (1972) §53.Google Scholar

“While the point has not been free from controversy, it seems clear that necessity has standing as a common-law defense; such issue as there is relates to its definition and extent. The decisions, however, have been rare and legislative formulations most infrequent… .”Google ScholarGoogle Scholar

La Fave, Scott, , supra note 63, at 381.Google Scholar

Indeed, the Model Penal Code eliminates the “emergency” requirement altogether:Google ScholarGoogle ScholarGoogle Scholar

La Fave and Scott see the abortion laws prior to Roe v. Wade as having made just such specific provision:Google ScholarGoogle ScholarGoogle Scholar

See, e.g., Poole v. Endsley, 371 F. Supp. 1379 (N.D. Fla. 1974), aff'd in part and remanded, 516 F.2d 898 (5th Cir. 1975); McGarvey v. Magee-Women's Hosp., 340 F. Supp. 751 (W.D. Pa. 1972), aff'd, 474 F.2d 1339 (3d Cir. 1973).Google Scholar

Douglas v. Town of Hartford, 542 F. Supp. 1267 (D. Conn. 1982).Google Scholar

525 F. Supp. 798 (W.D.Va. 1981).Google Scholar

Id. at 799.Google Scholar

Id. at 802.Google Scholar

Poole v. Endsley, supra note 68.Google Scholar

Harman v. Daniels, supra note 70, at 800.Google Scholar

If the notion of according personhood to the spegg for these purposes seems outlandish, recall the fact that the law has done just this for other purposes in preconception tort cases such as Renslow v. Mennonite Hospital and Jorgensen v. Meade-Johnson Laboratories, supra note 49.Google Scholar

Thomson, J., A Defense of Abortion, Philosophy and Public Affairs 1:57 (1971).Google Scholar

I have argued elsewhere the value of the common law courts in seeking answers to these questions. See Baron, C., Medical Paternalism and the Rule of Law: A Reply to Dr. Relman, American Journal of Law & Medicine 4:337 (1979); Baron, C., Euthanasia Decisions in the Courts: The Post-Saikewicz Experience, in Genetics and the Law II (Milunsky, Annas, , eds.) (1980) at 141.Google Scholar

Roe v. Wade, supra note 1, at 163.Google Scholar

Because some states have not enacted abortion laws to replace those which were struck down as unconstitutional by Roe v. Wade, “abortion on demand” is available in those states through the entire period of pregnancy. The occasional abortion of a viable fetus which takes place in such states can produce very discomfiting results. For example, a storm of controversy developed in June 1982, over a 26 week old fetus which had died 27.5 hours after it was aborted in a Wisconsin hospital. Suggestions were made that the civil rights of the fetus had been violated by performing the abortion in a facility which did not have equipment for the care of premature infants. See U.S. Pledges Probe of UW Abortions, Madison Capital-Times, June 2, 1962, at 4, col. 1.Google Scholar

Roe v. Wade, supra note 1, at 165. This is only one of several places where the Court shows a distressing tendency to delegate governmental power to physicians. Here the doctor is given discretion to decide whether an abortion in the third trimester is “necessary” for the preservation of the “health” of the mother. But what degree of diminution of health of the mother will outweigh the life of a healthy, third trimester fetus? Will indications of the necessity for a cesarean section be enough? See Jefferson v. Griffin Spalding C'ty Hosp. Auth., 274 S.E.2d 457 (Ga. 1981). What about threatened impairment of mental health where changed circumstances make the mother no longer want the child? Roe seems to leave these “choice of evils” determinations entirely to the medical community. In a later case, Colautti v. Franklin, 439 U.S. 379 (1979), the Court delegates to the individual physician the power to decide whether or not a particular fetus is “viable”—not only for determining the medical facts regarding probability of survival outside the mother, but also for determining the governmental question of what degree of probability of survival brings in to play the state's “compelling interest” in protecting fetal life. Id. at 391–96. Too often overlooked by pro-choice advocates is the fact that Roe does not recognize a woman's right to an abortion; it recognizes power in the physician to prescribe an abortion for his patient. As the Court says of its holding in Roe:Google Scholar

The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to these points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intraprofessional, are available.Google Scholar

Roe v. Wade, supra note 1, at 166. This is true even for the period of the first trimester: “For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.” Id. at 164. This deference to doctors on the part of Justice Blackmun, who wrote the Court's opinions in both Roe and Colautti, has not escaped the notice of the other members of the Court:Google Scholar

Blackmun's 1973 abortion opinion had subjected the Court to a great deal of ridicule. It was as if Blackmun had developed a special constitutional rule for handling medical questions. [Justice] White dubbed it Blackmun's “medical question doctrine.” It seemed to hold that, under the Constitution, doctors, rather than the Court, had the final authority on certain medical-legal questions. White found that notion ludicrous. Blackmun had created another “political questions” doctrine. The notion that the Court couldn't meddle in the affairs of the other branches of government had been broadened to include the medical profession.Google Scholar

Woodward, B. Armstrong, S., The Brethren (1976) at 146. Equally patent was the source of Blackmun's willingness to defer to doctors. Before coming to the Court, he had been for ten years general counsel to Minnesota's famous Mayo Clinic.Google Scholar

At Mayo, he had watched as Doctors Edward C. Kendall and Philip S. Hench won the Nobel Prize for research in arthritis. He rejoiced with other doctors after their first successful heart bypass operation, then suffered with them after they lost their next four patients… . He grew to respect what dedicated physicians could accomplish. These had been terribly exciting years for Blackmun. He labeled them the best ten years of this life.Google Scholar

If a state licensed a physician to practice medicine, it was entrusting him with the right to make medical decisions… . To completely restrict an operation like abortion, normally no more dangerous than minor surgery, or to permit it only with the approval of a hospital committee or the concurrence of other doctors, was a needless infringement of the discretion of the medical profession.Google Scholar

Blackmun would do anything he could to reduce the anxiety of his colleagues except spurn the assignment [to write the opinion in Roe v. Wade]. The case was not so much a legal task as an opportunity for the Court to ratify the best possible medical opinion.Google Scholar

Id. at 174–75. In essence, the doctors whom Blackmun respected so highly were to take over from the state governments the job of making the “choice of evils” decision inherent in abortion. This role they would perform on a case-by-case basis by influencing and, perhaps in some cases, blocking the mother's decision. Thus, after the Court recognizes a right of privacy covering the mother's decision and lists the cost factors the state would impose on the mother if it denied the abortion choice altogether, the Court concludes: “All these are factors the woman and her responsible physician necessarily will consider in consultation.” Roe v. Wade, supra note 1, at 153.Google Scholar

This distressing tendency to want to leave to physician philosopher-kings tough ethical questions which the courts find “too hot to handle” is not restricted to the Supreme Court or the issue of abortion. In regard to the issue of euthanasia for terminally ill patients, some courts have expressed a willingness to delegate to doctors the power to decide what circumstances justify cessation of life-prolonging treatment. The trial judge in the famous Karen Quintan case, for example, acceded to medical judgment on the question of whether Karen's respirator was to be turned off, saying: “The morality and conscience of our society places this responsibility in the hands of the physician. What justification is there to remove it from the control of the medical profession and place it in the hands of the Court?” In re Quinlan, 348 A.2d 801, 818 (N.J. Super. 1975). For their part, most doctors have seemed eager to have such matters labelled “medical questions” so that involvement of courts in medical practice can be kept to a minimum. See Relman, A., The Saikewicz Decision: A Medical Viewpoint, American Journal of Law & Medicine 4: 223 (1978). However, like Justice White, some courts have openly rejected Justice Blackmun's “medical question doctrine.” Thus, the Supreme Judicial Court of Massachusetts has held that termination of life-prolonging care decisions are to be made by the courts, concluding:Google Scholar

We do not view the judicial resolution of this most difficult and awesome question—whether potentially life-prolonging treatment should be withheld from a person incapable of making his own decision—as constituting a “gratuitous encroachment” on the domain of medical expertise. Rather, such questions of life and death seem to us to require the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created. Achieving this ideal is our responsibility and that of the lower court, and is not to be entrusted to any other group purporting to represent the “morality and conscience of our society,” no matter how highly motivated or impressively constituted.Google Scholar

Superintendent of Belchertown School v. Saikewicz, 370 N.E.2d 417, 435 (1977). See generally Baron, C., Medical Paternalism and the Rule of Law: A Reply to Dr. Relman, American Journal of Law & Medicine 4:337 (1979); Baron, C., To Die Before the Gods Please: Legal Issues Surrounding Euthanasia and the Elderly, Journal of Geriatric Psychiatry 14:45 (1981).Google Scholar

See Hart, H. Sacks, A., The Legal Process: Basic Problems in the Making and Application of Law (Tent. ed. 1958) at 665-67. Because the focus of this paper has been on the question of personhood, I have not directly criticized the Court's argument that the Roe decision was mandated by the Court's “discovery” that the Constitution protects a woman's choice of an abortion as part of her “right to privacy.” For criticism of that argument in terms that I would embrace, see Ely, J., The Wages of Crying Wolf: A Comment on Roe v. Wade, Yale Law Journal 82: 920 (1973). Dean Ely does not oppose abortion but does oppose the Court's anti-majoritarian imposition of its own abortion “statute” on the fifty state legislatures:Google Scholar

Let us not underestimate what is at stake: Having an unwanted child can go a long way toward ruining a woman's life. And at the bottom Roe signals the Court's judgment that this result cannot be justified by any good that anti-abortion legislation accomplishes. This surely is an understandable conclusion—indeed it is one with which I agree—but ordinarily the Court claims no mandate to second-guess legislative balances, at least not when the Constitution has designated neither of the values in conflict as entitled to special protection. But even assuming it would be a good idea for the Court to assume this function, Roe seems a curious place to have begun. Laws prohibiting the use of “soft” drugs or, even more obviously, homosexual acts between consenting adults can stunt the “preferred life styles” of those against whom enforcement is threatened in very serious ways. It is clear such acts harm no one besides the participants, and indeed the case that the participants are harmed is a rather shaky one. Yet such laws survive, on the theory that there exists a societal consensus that the behavior involved is revolting or at any rate immoral. Of course the consensus is not universal but it is sufficient, and this is what is counted as crucial to get the laws passed and keep them on the books. Whether anti-abortion legislation cramps the life style of an unwilling mother more significantly than anti-homosexuality legislation cramps the life style of a homosexual is a close question. But even granting that it does, the other side of the balance looks very different. For there is more than simple societal revulsion to support legislation restricting abortion: Abortion ends (or if it makes a difference, prevents) the life of a human being other than the one making the choice.Google Scholar

Id. at 923–24. Other constitutional scholars have taken similar positions with respect to Roe. As one text has noted:Google Scholar

The Supreme Court abortion rulings provoked immediate criticism. Some of the most severe indictments of those decisions came from unexpected sources—pro-abortion writers. Criticism was aimed not only at what the Supreme Court had done (i.e., the substance of the new constitutional abortion doctrine), but also at how it had done it (by resort to the doctrine of substantive due process), and why (the legal arguments given in the official opinion to justify the result reached by the Court).Google Scholar

Wardle, L. Wood, M., A Lawyer Looks at Abortion (1982) at 4.Google Scholar

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Id. at 55–56; Adamek, R., Abortion and Public Opinion in the United States (1982) at 3–5. The latter publication reports that a Gallup Poll in 1981 showed 52 percent of respondents thought that abortions should be legal only under “certain circumstances” and that a National Opinion Research Center poll in 1980 showed only 39 percent of respondents believed that a legal abortion should be available “[i]f the woman wants it for any reason.” Id. at 4.Google Scholar

For creative suggestions as to ways in which courts could interact with legislatures over such issues, see Calabresi, G., A Common Law for the Age of Statutes (1982).Google Scholar

Fisher, R. Ury, W., Getting to Yes: Negotiating Agreement Without Giving In (1981).Google Scholar

Id. at 154.Google Scholar