oF eLiaits of Enforcement ot Moral Stndards ven grated the state's sight to prohibit abortion in some circum ance. ‘Stephen Calebachs “A Human Life State” argues that feel ‘oman life statute would be constitutional. He agrees withthe Roe “ours Sndng that te jada i not competent to rule on the ve af fal penontood, and that given the curent legal station it would be incorrect to view the fetus a8 3 pon forthe parpoies ofthe Four renth Amendment, He suggests, however, based upon past ue of the outeenth Amendment, tht i is within Congres purview to deter nine jit what and who i to count asa penon forthe purposes of Fourteenth Amendment protection, Fuster e suggest thatthe Fane ion ofthe leplatve branch generally is to anive at fico legiative lassifcation. Hence, he ages, Congress would be well within it Dower to determine that fetes ae penons forthe purposes of Four centh Amendment protection, and to extend such poteton to them. David A J. Richard's "Constittinal Pavacy, Religions Disetab ishment, and the Abortion Decisions” provides 4 novel legal and onl araljsis ofthe abortion issue grounded in a philosophical inter relation of the Fist Amendments prohibition ofthe etablishient ‘eligion. Richards Sst discusses the development of privacy theory ‘lew, poitcal theory, and philexophy, and conclades that at deve ‘ped bythe Court, privacy theory prods insfcient sopport for the ‘orion deions, Richards then oles an alterative argument for grounding the sbor ion decisions in the eght to privacy, based upon the antitabihment luuse. He approaches this argument through considerations mised by ‘hn Sturt Mil, as well a through the history ofthe wse ofthe ant stablshment clase bth within and outside the context ofthe abor ‘on contovery. Understanding Blackmon’s Argument: ‘The Reasoning of Roe v. Wade Roger Wertheimer ‘We net not sesave the dificult question of when Ife begins. When tote tined i the respective diiplins of medicine, philosophy, 2nd tHeclgy are unable to ative stay conn, the jdiiy, a this point the development of mn's Knowledge, nt in positon to speculate at the saver sz words of Justice Blackmun, speaking for the majority in Rae v. ‘Wade, bid fait to be among the most oft-quoted sentences of any Supreme Cout opinion. Their frie desves from their having de Fined the pivotal premise fora ruling that all would deem epechal and many would dann at apoclyptic, Bot an asm of infamy now Tangs round them, for to many tained minds they seem, incontet, donccaly pradonzal, Though the ruling ha many finds, vetwally All of thom seem embarased by this particle reasoning scholaly polgis defend their endorsement ofthe rling with explanations totaby independent of if not inconsistent with—any argument in ‘which thote proportions figure? And enbarassment has tumed to Chagrin as socalled prolite advocates have interpreted those words 25 1 licens to undermine the ring by means of congressional legislation ‘or conttstional amendment. In bri, Blackman’ adil epoche has indaced every condition fom perpleity to apopleay, exept ata. "Though I shall Inter list some of may misgivings with other pars of {he Blickmun opinion, my main message is thatthe grestestshortcom ing of those to notorious sentence that there ae only two of them, ‘Whereas the claims they profier are comect and consistent with the rest of the opinion, some of the structure of supposition requisite for tundentanding Blackmun's reasoning i neither obvious nor asserted,tof ‘The Limits of Enforcement of Mon! Standards sand thor uncertainty remains regding the propity of the Court's ‘econ, To this extent the Court did not completely succeed in fl- ‘ling its solemn responsibilities, which include not merely reaching «jt decions and doing 0 for good and sufiient reons, but also Adyaaty Informing the nation’s citizenry, legato, and lower ‘out of the rationale forthe leader i imposes. With all the ferce ‘psoas surounding and sometimes beloading the abortion contr- ‘ey, that shortcoming is regetable. Stl iti remediable. The ex nitions non to fender manifest the eaherence of Blackmon's ‘atoning can be supplied by weaving his words into the structure of the argument I recommended two yes prior tothe Wee decision? ‘Those notorious two sentences have been subject to three critical responses. Fist, thse sentences state that there ia diel qesion| that the Cou did not have to (“need not”), cannot ("i notin a patton to"), and thas presmably should not fy to answer. The Wo Veiced but unobvable implication that the Court id nt, expresly ‘or others, answer this dificult question. Yet, according to Black ‘mus’ ow analysis of the sent ites of the case it appears thatthe ‘Court had to and did endorse an answer. Secon, the socond sentence says that the Cou’ incapacity i connected with the presence of some agement among experts regirdng this difficult question ("thove {mane inthe respective disciplines of medicine, plow, ad the- ‘lg ae unable to arrive at any consensus"). Yet, courts daily cesalve (ostons upon which expert opinion is divided; that is one of the functions of 2 court. Third, the second sentence predicates this ia ‘capcty only of the judiciary, Ths leaver open the possibilty that some other par of the goverment could propel resolve the question and thereby molfy the Cou’ ruling. In bre, the Sis itn con ‘zs the intemal consteney of Blackmun’ implicit denial that the (Coutt answered the dificult question; the second erin concerns the jutifation of his claim that the judiciary incapable of answes- ing that question; and the tied eitcsm concems the implications of that lat chim forthe propriety of any goverment decision on the ‘quaton. Let ws begin examining these mater in that order, event aly it wl tecome apparent thatthe ius are intestine, ‘Blackman continually (and perhaps pointedly) refer tothe dfclt ‘quation asthe “question when life begins" He also wes the expe sion “when a new human life is present,”* and he would asuedly cept the formulation, “Whether and when a human concepts is 2 Undentanding Blckmes's Argument 167 Tsing human being” Hover, ach ephrsing cancel only the ra ct mcm ‘cme diavowal fan awe minima, pada. He onequraly ser ht i he hat "he eae. som within he ngage and mening of he Fount Ande then “the appt, he proche] ce, of coe, aly, for the fers gh oie the granted petal bythe Amend rent"* Ard he aneqshoclly dene ht antcdet dae: “The sor pen awd nthe Fourteenth Amendment dos nok nde the anbom"* And, mor geal, he conclsde ht the eke ‘ave sever ee ogi nthe awa enon nthe wl ese Fert, of comme the procoie case dil not “clips the Cot ‘led that abortion may not be poked before vay (ba nly ‘eglted in medal spc fo protect the thes heal 0, the Cort mathe hed tat ter int penn, Inde, ty ‘tesking the Cout appears commited to hing tat penonod it tt acqied bere ith, tense the Cor ld at een afer ‘ai, a aboion exer to proce thee or heh ofthe tothe may not be proibited® (Thier point i alnos a foe fal th gamer nig of Bachman fotte 34, wre he goes. ‘tons! “GBortion prohibitions which contain some exceptions—as hey all do nl forthe pps of protecting he fe ofthe mher. Could be consistently teed on pene’ Porenth Amendment fet ie) rdety Blackmon mot be pesming me dtntion between the quetin of wheth, within the meaning of the law fe enon, andthe “iat orton” of whether 2 horn Ke ies the Coo most 00 id anmer the former qton fol Tense the lw (eg. the Fourteenth Amendment) exp speaks oi pons and eur them ight te» nit hic weal per Sele a mother's its The probin, then, & whether nd bow Bc tun cold sete tee tr guetons to anes the former tithot answering the ter In ight ofthe pip entre ofthe at aad, ace sar ttt hat none the Wade opinions do any ofthe juts contempotesqrting toe gion By ooking tht reve hey Proce tobe seeviet by sumer! contemjemry Pompe {o ni, ht the gusto of whether something rag human be ings tly inclowntlgey, monly nd metapypeyte Oe18 The Linits of Enforcement of Moat Standards ‘quton of whether that thing i periom, just a one's race and sex tre ilernt ta one's beng + penon. That, Lord knows, alone thoy, bt, ike many another theory ony lanai live by, it propely interes pilsophers i only becae ite rebuttal requires an examina tion ofa mats of profound asumptins ™ In any ease, whatever its sme 5 pare moral theory, i ute ielevant to the plital and leg reatis confronted in Wade. A'Coutt endosement of such theory would be lunacy, because it would enrage a monolithic majority ofthe populace and lila, not coincidentally, because it woold _poslyvolete oor most welleablished lel principles, No philwop ial theory that purports that a living hun being must acquire cer tain cogtive, volitional, or afetve capacities to bea person has a speck of rerpectable legal precedent in its favor For Blackmun, the ‘operative contrast is between the born and the unborn, aot between the presence and the absence of some pschologil capacities, His opinion ‘upleno ful forthe hyrteri of antinbortionist anxious about lea fang intend. Within the bounds of our legal tition 90 cout ‘val rule that an unbom hid i nt legally person while recogni: ing ita living human being in every sense in which & bom cid ‘On the other hand, throughoat his opinion Blackmon cael di tingushs his tak aboue persons from hi talk about if, buna life, human being, and so on. (The sole apparent exception occurs while he is decribing some ancient and medienl dscsions tht “ap pouch the question in terms of when a person” came into be lg” Here Blackmun i aly aot endorsing this terminology.) The ruil pont ere that the lew relevant to this ate ae formulated with the tems “person.” not with such terms as “human being” or “human life” Yet, agen, nothing Blackmon sys mpl oetion of the principle thats lving human being i «person. On the contrary, he doesnot rule out the argument for the pesonhood of the fetus base on “the wellknown fets of fetal development” as being ile ‘ant oe nom soqita™ But, then, if he aceps that principle ae rlevant, how could he say that he need ot answer the “dificult question"? And if he did aot reject that principle while denying that a fetus i peron, how could he imply say that he didnot deny that fetus isa human beng? [ A key to solving both of these questions is tat following the lead of the dre court Blackman pat th barden of proof on the tate to ‘stablsh tata fetus sa person, he did not put it onthe individual, Undestanding Behan’ Argument 205 Roe, to estab that a fut i not «person. The onus of proof ut imately is with the state because our theory of goverment is prem: ised on the principle that govemmeat derives is legitimate powers fom the consent of the governed which means that governmental acts infinging on theie nights or frstrsting their interests most be justifiable to them, Ts the indvidval snot compelled to justify her fcetise of her rights and capacities for ation; rather, tis the state that must justify ite coercive acts. In Wade the adversaries were not two persons (ors peon and an alleged or putative person) with com- pig lime of rights; the adversaries were a peson and the State of "Texas, This 0, ot became the case ars from the violation of & criminal statute which pits « woman ata defendant against the state ss proccuor, but ecru the abortion statute at ise severely iis the woman's “fandamenta” right of privacy. It is cuca that a gov ‘erumentlrling tothe effect that a fetus is person i not an abstract Intellectual thesis it i self a linitation of the rights of pregnant women, So the ise before the Caart was not, Is the fetus, in some ‘cient, metapysical oe moral sense, 2 person? Rater, it was, Can the site provide scien jsticatin far Limiting the rights ofthe pregnant woman by categorising 4 ftas as 2 person? ‘Tus, when Blackmun had deteomincd that the tate failed #0 cary is burden, he formulated his conclusion on this whole ue by saying, “In view of allthis, we do not agre that, by adopting one theory of life, Texas ‘nay override the nights ofthe peguant woman at stake." “As that concluding remark suggests, Blackmun countenanced 20 sppost of the suggestion made by others that the leplture or the indian i empowered to deine the category of person to suit public Pali No tace of a dubious theory of legal postivsta or pr ‘matin & in evidence here Certainly clasifation by fat ia com ‘mon leprltive and jodi activity eewhere, but Blackman doc not teat the eategory of pein as susceptible to governmental diceton And rightly 0 for the btowal or denial of that status isnot only seeome in it consequences bat alo profound in its preuppoitions [theory of goverment such as ous, predicated onthe idea that gor fenment san istrament for protecting the rights and furthering the interests of persons, cannot coherent deny thatthe nature of person ood andthe fundamental sights inhering in it ae anterior to gover ‘mental act. To deny the satus of peron to thote who ighiflly poses it 2 howling injustice. And bestowing that status upon those19 The Limits of Enforcement of Moo Standards se dot pal poses tisha ewan neti, nach a tat teova intsy ives gs agents othe pt the ely posse that ta Sis elegy ptr dic om ts “ta” oe vel comity singly bec nts wie a ily i 122 (at gc ir) ter of epatemologea nom. AL tho the dln litera of th and wel ney ty be the Sev tt the compe ote, be apt tor reming the lerton may pei rete dec tra of ele eteg fom to neg outeat. the sa tr song ent she yen (othr tae me ‘in php ad thes”) debate th qustion—whaer the {tom te that te petaood or hamathond of he fo {Ratmer thre arm contains on the ate sompabl fo the {Pei le of ite td intcce rsp! by orca Frc, tce hthog compa os oan poo ged {De putt ts algal conte he lg oe a2 fans 2 pon or hen Yeager nt eal eae otic toy and he re fo pong fet peo or heen Teg dost ct et ep cots sn gone ior need wot be fata. Thee 3 latte to et 1 Seat rng that 7 ay pera rd req inrret« STety' are tomesuentea ep dosti ca ered we ed Sn tec none cute emi ot ‘Witch tobe te epstensogial es empyed by 2 cou 4 seater of lp hey Bt appa suet cla that's kp tn mat eopny pil Some fet fom thin mma cote ad that Backman doesnt i cx ny coterie epteogy, La enn Tp dekon mat ached seen oie, Sater Chitin fit sac. Placing the os ef poo! on ome pat Sis snd wften tcf eta 2 dcson mate Tn ‘mill we pce Bat tuden om the pct, For if tot sneted rein dcdng an ue of eos ew, the brani ped onthe sate. Hone thae fw ston retconpty wae When inal cot Stes denn Ceo bern te pein fame wt ben fete Froeroig ad pit ot eng the non af nee Ed'h “inig” dosnt ater the tthe he popestion atthe Senn rally ally or do detach See ow he od ‘Undentanding Blckman’s Argument 111 ‘ary, nonlegl interpretation of that claim, But in a case such as ‘Wade, though the Court i pesupposing and eppying 2 notion of per on, the Court i also specifying ts aplication in lw, defining it sub- jet to constraints on legal resoning that may case that legal concept to te detached from its nonleal interpretation, Thus, the Court's de- Grom tata fetus i nt legally a person need not imply an answer to the question of whether a fet i, n tome nonlga sens, a person of human being it need not imply any more than that an afirmative answer wat not sufiintly proven Blackmun necd not have aniwered the question in anther sense for he can and does reich his denial of the penonboo! ofthe fetus quite independently of whether it suman ife. He does so by em Ploying another legal epistemelogical principle that pllosopher and ientits would not aie for thelr comparable questions: viz, stare evs, the authority of legal precedent. Yet here too the burden of ‘roof plays a major role Blackmun’stendentioas deployment of lg Precedent hie narrow reading ofthe las we of the term “peson” (persons inthe whole sense") and his interpretation that amy diver gence in the laws treatment ofthe unbor from that ofthe born i ‘vidence that the law hat not regarded the unbor as pesons*™— shoul, 1 believe, be undertood at having ben guided by an asim ion that a rather severe burden of proof les on the state because of the “fundamenta” character ofthe woman's right at stake® Yet, presumably, Blackmun could hae ave at his rling even i precedent were against it (as arguably mach of itis) for the kw is ot, except ina tril and fanccwous Sense, what the judges have sald ‘or do sy i i" Properly, the law i what the judges ght to ay ii (Certainly Blackmon docs not treat precedent at the sole and auto. natialy decisive consideration. Although he amgues against the un ‘bom being perions for purposes ofthe Fourteenth Amendment solely by reference to precedent, he doesnot reject the facts of fetal deveop- ent asiclevant even for that eestrcted but crucial sue. Moreover, upon concluding his reading of the Fourteenth Amendment, he ac iowledges that ‘this conclusion, however, dos not of itself fully anaver the contentions ried by Teas, and we pass on to other com Siderstions."* He then confronts the Teas contention “that, apant fiom the Fourteenth Amendment, ile begins at conception and it present thought pegnancy, and that therefore, the State has acon pling interest in protecting tat life from and after conception." * Upto this point it appeas that Blackmun could have embraced the113, ThelLimits of forcement of Mor Stands ‘Teas “theory of life” and found aniabotion legislation consi tional, and aio that he could have denied that a fetus isa human be ing (“in the whole sense”) and ruled against sich legitation despite the ssn precedent Behind it. He might have done iter, but instead at this pint he enters is claim tat the Cout need not and ould nat afm or deny that "theory of if.” “Ths far we have explained two sents in which Blackman need not sniver the dificult question: Fist, independent of any argument ‘onthe queton, the weight of precedent alone could have decided ‘whether the unbom are peron Second, independent ofthe trath of Jan anover to the question, inasmuch asthe state had the burden of proof and had no other line af agupient, the mee flr of the tate to demonstrate the trth of its theory of if would imply thatthe un bom arent perons and tht its lepition i wnconstitutonal. What ‘tl needs explaining is why the Court did not need t (i, at nt compelled by lope to) deny that a fetus sa human bein while main taining both tht s ftw nots peson and that a human beng is 2 ‘mon, To understand why the Court was under no necessity in this last and crucial expect we must move to the ive of why i could not answer the dial question, “The Court cannot be compelled to answer a question tat t cannot answer, and here “the jody. et in 2 poston to speculate a, to the answer.” But why not? Afterall private individual, including justices as prtate citizens, ae in a postion to speculate, fr everyone tas the Fast Amendentfrcedom to speculate about this anything. Everyone, that i, except a justice, an authority whose mere opinion sre lw imposing constraints on others. For someone in tat potion, ‘mary to ponosnce an opinion ito impinge upon the legitimate in. tert of ether. Here freedom of expresion i liste, Indeed, even fredom of thought retcted because a court has no unexpressed ‘opinions: the mind of 2 cout exists only in its pronouncements. Ex presing an opinion i an action, and an authority may ntact when it ‘ould thereby volt the principles which legitimate authority lckmn descbed the instant circumstances this way: “Those trained in the respective diciplines of medicine, pilesophy and the logy are unable to anive at any consensus.” He did not ay—no sit credible that he could pasy mern-—that whenever a question lacks 4 consensus of expert opinion the jadi isnot competent to make 4 legal finding on the matter Rather, he wees specially to the ex trnoedinary fact that, with this dificult question, presumptively expert Understanding Blckmun’s Argent 335, opinion is divided within scence and philosophy and eeligin. By con test, when pathologists present opposed explanations ofa wound, or chiar disgre over the mental competence ofan agent, theo fins and philosophers have no expert epinion on the ibe, no more hana chemist has mich of interert to sty about transubstantiation oF logial atom, Few questions ante in all three domain, and with ‘ose that do, the main digpotes occur between diferent domains and pthaps within one domain, but not within and between all thre Some’ questions of eosmalogy and evolution may be debated within tach domain, but in that ease typically the premis, methods, and onclsions ifr in kind for each domain, Yet with the question of ‘when a human life begins we find the specialists of each dsipline apreing on and appealing to much the same subsiiary data and “niving tthe same wide divergence of conclusions. In fat, aside om the disagreements on the answer itself, virtually the only matter de buted within any dicipline hve is debated within al three—and that isthe question of whether this quiton i cent, religions, or philo- topical (eg, moral or conceptual). And surely, when the presumed ‘experts are in utter diary over what kinds of experi are even slo ‘vant toa question, a jadiious mam might well be way When Blackmun then proceeded “to note brief the wie diver ‘gence of thinking on this most sensitive and dificult question," * he Aid not dwell on the dsagzeements about the charter ofthe quer tion. But then he hardly needed to, inasmuch ate had already taken judicial notice ofthe troublesome character ofthe question with these ‘extraordinary introductory remarks: We forthwith acknowledge our awareness ofthe semsitve and emotions! nature ofthe abortion eontrovesy of the mgorous oppising Views, even ‘mong physcns, and ofthe dp aad seemingly absolte conviction that the subject imps: One's philosophy, one's experience, one's expore 0 the edges of human extence, ones rigor taining, on’ titades tomard ite and fay and thei values, and the moral standards one eb lishes and sels to ober, ae all ely to inBoence and to color ones ‘thinking and conclusions shut abortion * ‘This might be dismissed as thetvical window desing, incontequen: tal platitudes. Yer Blackmon deemed it worth saying. despite Being “keenly aware of how thoroughly unorthodox-and perhape unique such remarks are inthe contest of Supreme Cot opinion, A decade Tater he declaredsq The Limits of Enforcement of Mol Standards [belive everthing Ida the second param ofthat opinion, where Tago, iitly not only fr mate, bt for the Cour. Paenthetially, in dng 30 publi T duchoyed one sgpestion Hage Blick made to me then [fst came hee. Hemi “Tlary never Ailey agony. Never sy that thi an aang Bical deco, Always wate ar hoogh Ss eat went” ‘Why then did he preface his whole opinion this way? After al reat sions commonly siround the controversies coming before the Gout. Blackman most mean thatthe “emotional nature of the abo tion controversy” i speial—and presumably nt (just) in degree, in that many of the momentous, feredy contested Court cases have ‘ouly been no let emotional in mort senses of dhe word. Blackmon’ bit remarks do not constitute a theory about the emo- tinal character ofthe controversy. They only highlight certain key fences, For example, be does nat deny that there i a question of empirical fact here: his stressing that even pyscians held vigorous ‘oppasng views would be points if their empiial expertise were not ‘etnent. However, he emphasies “the deep and scemingly abiote” ‘haracter of the convictions on this subjzt. Here he may be alluding toch phenomena ae that the diferent claims conceming the time of lhominztion are typically not put fortard as hypotheses, conjectures ‘genuinely open to fication by new empircl findings. Rather, peo. ‘le generly seem to be either in quandary, with no clear sense of shat they might leam that would relieve thir doubts, or de they old to thir dating wth sense of obiousnest,of being immediatly lastly the mest basic, uncontroverted and uncontovertbe facts of epodveton. He then rightly emphasized that both ove conchsons tnd the thought process by which we reach them seem tobe a fone ti ofa great stew of tactrs—philosophica,eligious, monl, exper cota ote, and attitdinal™™ Blackman icky contrasted thie stunton sith anther: “Ou tat, of cour, i to retolve the iste by constitutional messutement fee of tation and predilection” ® OF coun. This may sound Hike 2 mere indicia piety, more windowdressng, and yet, again, Blackmun st tome need to afm a plititde here. He continved: “We seek er resly to do this, and because we do, we have inguited into, and in this opinion place some emphisi upon, medical and medicals hie tory and what that history reveals about mais attitudes toward the ahertve procedure over the centuries” ‘With this at his prefice, Blackmun fist ficiently handled the Undentanding Bhckns's Argument 915 preparatory ies and then devote over onefouth of the entire ‘pinion and about onehalfof his cent argument toa review ofthat Tt ea cutioualy inconclusive review whotestritore and se ‘of contents seem determined by various motives, Putting aside ‘ny doubts about the acoray or bikes in that review, there eemans the puzse: What fet that Blackmun thinks this istoy “reves about ‘man's attitudes toward the abortive procedure"? What leson does he think ist Be leaned from this history or his inquiry into i? lacks conchded thatthe judiciary s notin a postion to spec late as to when life begins, That concason seems justised on the pslawible astmption thatthe character ofthe “emotional nature” of that question i such thatthe question cannot be resolved by means of constitutional measurement free of emotion and prelection" That 5, when 2 jadge thoroughly take onthe diitereste, imparts, emo- nally detached, uteiy unbiased atttade required by hit vole, he assumes a cognitive standpoint from which no answer will sem cor rect. It 8 only within a fully embodied, emotionally engaged human life that the quetion has a relevant determinate sense and appear #0 havea determinate answer. In fact, there is no comet answer. Any one ofa range of answers may appear to ws (normal human beings) to be right, even obviously ight, But inthe blindness of total dispasson no anawer at all appear, ‘To be sur, Blackmun di not explicitly advance this epistemological toss, et alone argu fr iin deta. (But then, consider how extrae inary it would be fora justice to expound a novel epistemological theory.) Nevertheles, that thes isnot enlyconsitent with both the leter and the spint of the whole opinion, but st ako renders the opinions cental argument coherent and compeling, Moreover, atsb- ‘ting some vein ofthe thesis to Blackman i hardly fetched inso- far as its core iden, in however vague or inchoate a form, as been Show by some pois to be among the most common views regarding the dificult question (It seems plainly ielevant that most people sho fed that the question har no objectively comet anwer lack the Irnosledge of logic to appreciate and workout the formal implications of that idea.) OF course, the tth ofthis epistemological thesis is another matter, ‘but Tam aad thatthe argument for iar to complex to do much ‘more here than refer you to my writings for a more involved presenta tion Yet the eset idea is simple enough: fora belie to be objec tively tre or fale thee must be the posit of inteubjctve agree16, The Limits of Enforcement of Mor Standards UUndestanding Buckmans Aroment 147 ‘man beng is 2 ptson inorder to refain from denying tata fetus is 2 human being ‘The epistemological thes aside, Blackman surly could not have ‘meant thatthe judiciary’ inability to rescle the question was due to some incapacity that did aot affect a legisltuce, The whole that of 1s opinion is that a tate leglature isnot empowered to deprive a sroman of her fundamental sights by endoning some theory of life ‘nothing in that opinion suggest thatthe impotence ofa tate leg. tore here i due to is lacking some power pasescd by the federal legato A woman's righte-which an abortion proliition rts ‘include the right againt interference by ny evel or branch of _vernment But if the epistemological thst i implicit in Blckmun’s opinion, the that opinion presents a decive argument saint even a const. tutional amendment to nalfy the Wade ruling, not to mention « congessional emctment to that eect. The argument as presented thus far has been taloed to St Blacknun’s phrases, Dut the essence ‘ofthe argument can zeaily e reformulated sa to be ately fee of any peculiarities ofthe judiciary. Indeed the argument is far simpler then divested ofthe forms internal to the adcary to which a Court ‘pinion must conform, Fist, the burden of proof ison the govem- rent, Te mst joy ite cerive acts to it coerced subjects, Beene iovemment derives it legitimacy from the consent ofthe govemed Second, any fllsale abortion prohibition (eg, aay that prohibited shortion from conception om, except to protect the mother’ health, or in cases of rape) so severely limits a woman's betes and damages the interests of parents that it cou be jstifed only ifthe unborn are Thuman beings (Le, in the same sense that the born are human be lings). Thas, a guverament may Teiimately impose such 2 probibition nly if cam demonstate that the unborn are human being, Tid, the epistemological thessthat the unborn are human beings is, i it cannot even be show to be probable nl rent on ts tit vale we have, T think, god reason to belive that the eqs preconditions fr agreement do ot ext in this cave, We ‘an ay that ome answer to the question are Baty wreng—eg. that an uofstiiae egg or spe is by se human being ofthat hom bitin occu substan afte ith, Bot Between conception and pation thre seems to Be no consensus ab to when human life be £5, for thee sem to be nothing in loi or nature that would com [ascent the mate Th caal pot at it people ho in fat dire, but rater that we have no sound bass for sop Posing that disagreement here must be de to some cognitive dfet. Tat Blackman accepted the epistemological thei i Further sug este by his denying the juny the capacty even to “speculate” a5 to the answer, Mere speculation requis less evidentiary backing than rendering am opinion, and, une the latter, i not even a category of ofl judicial action, ‘This description of the Cours incapacity Seep «more radial nd of niece than the mere ak of infor imation requisite for makings proper jodie determination. On the other hand, when Blackmun quaifed the Cou’ incapacity with the Cla, “at this point ithe development of man’s knowledge,” he sexs to alow the posit that the Cours incapacity i eto ome farm of ignorance that could he remedied, perhaps in ten jars, pe apr tomorow. Thera however more pusnble ponies, Black sin speaks hereof “mas knowlege" something much broad than ‘enyaogal Knowledge or even scentfeLnowedg, something that tight encompas epistemological Knowledge, se nowledge, an under standing fon thinking on his question and the norms governing ou thinking, The judiciny’s postion could conceivably be altered by, for ‘example, change in aur conception of what const «prejdiial ‘bas earding the question, o tout conception of wha snfucnces on our convictions are perenions of our cogntve activity. Consider the following” One's dnesition to rect to the human form with sympathetic snd ientfcatory responses, assume, emotional, but do we realy now whether it 2 prejadiil “preetion” we must 8 neither gennely tue no fale. Ths, no authority ca legit be cof tobe able to resolve the question? mately demand that people respect such a prokibitin, becuse no "Agi, athough we could conechably come to bein that the ques: reason canbe given ato why they should respect tion of when human ie Begins hasan objectively conect answer, we ‘Again, Blackman's argument is more complicated imply because a cannot now substantiate such belts, Hence, in thi situation, the [adic ring must be the result of eason refering to and westeained {Cau shold aot ey to anser the question; and when it denies that ‘by enitng rules ad concepts of the lea sytem. For example, Blck: ‘he uno are persons, it need not abandon the principe tht 2 hu un was not fee to fines the term “person,” a the simplifed argu18 The Limit of Enforcement of Mor Stndide tment above dior our eg forms x hatter in way that kr ihe al te nth ae. So, namic ate lop of he eal nn proba emacs apn o igor, he pie tml tes inappiabl tothe lp tem, “pono.” Neto onl guage ot 0 contin fhe epitemologea hess {pple tothe unr ae human beings” and f= oman bing iff a pono the tht ths aps well 0 the ntl {age din it the uno are enon. Father, though the pit Fob hes aside ee inthe contest of cos the intcel sane of dterctelnes and emotional detachment, the ‘Sin was that the dca penerte i eptemily nera,re- Stig» jg om ing someting any competent obsewer fe tee conta the ration of detache egies of ine piss that bi jdgment ond opine an command the {ect fanyrsonabe pen Tobe wt, we donot expect Or {fe wch dachmet of czes and epithe hey ot or ‘ethink hat genrlly the withesof the major should prov oer Tw ofa minor. Bot alo think that majority rl shold be ited wo arto pet the ight of individ OF eoume,depeing tame pple of tome ofthe rights by amending the Conttion ‘ol not be lg no mth amendment coud be vided by the So Frome Cur It would mes be enfin ofthe panies [Stiating goverment, dcp of commanding the rept of Sheprema Be acts now, none ofthis mpi that Black's ing al uted al patealan. The anal sr confine Diao’ runes oly wp tothe motors two selene, Tere emai the atin of how he gts fiom hereto the holng. The nove: ry Sy aly indeed Toph, Blahvan esac oly to vole “et date interests tat olde compeing enough Yo wart some ‘ste wltion of abortion. The St, patton of the moar rth, ses to pt abortion i the sme eta) a ther med reson Yet Blckmun pve no ratioal for imposing, 2 8 Tate ef contol law, pal ericson the sat equation ofthis mail poets But, having contended tha the srt’ ht terete eas stated by he incre! peat to matral ethfer thet tery, the Cot cnn engl deny the resembles of ‘elton ring that fer the Bat ies the Scion tht be objet to grocers ening thatthe econ be wel iced The Cot ees to have rergind let» prima facie Understanding Balan’ Argument 119 sean fora woman not to abort after the Bit trimter, «rasa that {tate has a legitimate intrest Sa having her act pen. When the ‘angers to her helth are certain and severe enough, I presume thestate has here whatever power it hat elewhere to procribe selédetrctve activity. But where th dangers are not so certain or severe, the state ‘oul, without infringing upon the woman's ibe, require her to ex {ige fn a supervised delibentive proces, That proces necd not be ‘confined to a dscusson of the health risk, because the purpose of the aliberation is that she be jotiSaby certain that she hay suicinty Sound seawons for patting her health at risk, Certainly, thre i con siderable room for controversy over what here constitutes reasonable ‘egulations, but my interest is withthe gener principle and not the details. However, one detail is worth stating: the principle would war ‘ant exempting from the deliberative procedure women who are cet fed bya physician to require an abortion to protest thee own heath ‘Black refs tothe other state interes, the crcl one, a “an interest in protecting the potentiality of human if” He says that it “ows in substaniality asthe woman approaches tem” and that it comes “compeling” a viability “because the fete then presumably asthe capability of meaningful Ife ouside the mother's womb,” * ‘This, he ws, provides "both logical and biological jasticatons”* for the Hong that forthe stage subsequent to viity the State, in promoting interest in the potentiality of aman ie, may, i choos, elt, and een prscabe abortion, except where it 8 neesary, in appoptate medial Faggment forthe prsenation othe ie o health af he other * Manifestly this i underrgud, Justice White seems comet in cal ing this “an eres in a adil pow," for teres “nating inthe language of history of the Constitution to support the Court's ude rent” here Precedents fora more conservative decison at plentiful ‘Though the meaning of "potentiality for lif” and the nature of the legitimate state interest nt have litle history of lea interpetation, auguably the whole history of the laws restricting abortion provides rnanive precedent for holding that dhe state's ater n Uhe potenti ity fr life i compeling long before viability. Yet, whether this, the crucial pat ofthe Wade decison, "an improvident and extwvagant ‘rice of the power of jc reviw,” * ar White claimed, i a ‘other matter. Leaving aside the vexed questions of ll precedent, and sppraaching the argument “pilosphicly,” i seems a mixed ba, far120. ‘The Lit of Eaforement of Mow Standards tole forme o unpack comply and ot ate shal iy Iwona forsee pot Totten bogs wien Blan tls wht the lng is aniston on ea ne bola Nats the pr Spatl ge nore acs of ly col duly id a sh om on cing ews conn ent Te proce, Anja, the ed pone="be feu then presume arth pb of mesg ie tide the motes womb tot hat bog or lp ut ely tre defsin."Vbiy” {ppd ew means i capaiity fr ving ote he mates Shp Buoy, conjncton with sale dal ecology. d= Ties whe itty oc not wat the werd means Ad defn the bares prc fo thas pom fein ie le 3 as faton on orn roumly what Backman has in mio be as ak tat ey Aston bec he sd th non. Thaghsometin a Par VI besecms tort te ter “pterial Meas hough wee ierhangese wit “peal i” dew, pil his on ‘San eee pla bythe fers obvi sic comotatons ‘peta ete of feta bt he ie ford ty the een teil Me’ clay tat of bor human ing A fe as sft petal bt ol potently Iv or uma big fake Bckmn pes that he ete ate nts 9 hele of te penta devs wll rom ts trot in he i of he postnatal Frnt stu (0 ecu 0 const poten yas kd fo caabiy nach way at tba ptt Heo some met is 1 ave the cpl of ving «ba tna beng a That moment. Th, 1 Bel he resin behind Backman nding vay be the compli pat thas some Posty, bt I wuld nt nid oeadowe tt the ration Then ite se can be gent cmos i hat the tate’ i teat in potting the potent of human ie tps in substan Ty se wom apace em” That ci ngs lo ay te nash ot Stance a no detectable lel eB ior via SUIT woul ot deny tat these of ity 8 “comping points toe sod sonal, thug 1 ly anyone to show eunigac vo: Nor wold deny the props of shorten to prove the mms dnt ojo es he he sate erst np: tectng sterol hth i sapnrointrs nptcting pte Understanding Blcknon’s Argument 121 fe OF couse, many will potest when Justice Douglas informs us in is concuring opinion, which seers to the Vuitch decision, that "health" mast here be construed to “give fll sweep to the ‘pycho lopcl aswell tthe physical wellbeing” of women patent.” * With that constnal, a woman ho wants a lateterm abortion will usally be able fo find physician willing to eerily i as necesary for her hath "Yet the broad interpretation of matemal health as justification for tn abortion i not itself 19 worssoma, or would not be i i were not for two further factors Fin, when the Cour ai, not that state ‘st, but that i "may if it choot... proveribe abortion” and that t ‘may dso only in the state's interests, not the ftw’, the Court moved from denying that the fetus isa person “inthe whole sens” to denying itany constitutional standing altogether, leaving it without any legally tnfrceable interests. Nothing in. Bhckonun's opinion provides + ra Honale for this or rules ot the alternative ieplct inthe history of shortion regulation, of recognizing the existence of a lea status pe ‘alle tothe fetus ‘Yet, esen this would be primal of symbolic importance and not of great practical consequence if, in Wede or later, the Coust had propery distinguished abortion the termination of pregnaney—from "he termination of the childs life. That distinction woald soem of obvious intrinsic importance no matter what event the Court had Picked as triggering legitimate state regulation, But when the Court finds some inherent significance in the condition of viability, its post tion seems threatened with incoberence if i then denies sgiicance tothe distinction between abortion and fticide, for there seems to be nothing sigicant about viability independent of is being the cond tion in which the dstneton between abortion and feticide is practical and meaningfl T do not say that the significance of viability x con stituted by that distinction, bat oaly thatthe former & not indepen- dent of the sgnicance ofthe later. Prochoice radials may insist that a woman's rght to pracy extends to her acting on an intention to kl her unborn child, not only when unavoidable ta liberte hel fom it physically, but algo at something desied im itself or perhaps as means of psychologically beating herself from the child, But that surely ia distinctive and highly tendentous thes. At minimum, even ifs woman ha aright to devide the fate ofa vnbe fetis, that ight i not dec entalled by her right to an abortion. Nothing im Blackman’ opinion precludes the Court from ruling that a state mayor even22, The Limits of Enforcement of Noa Standards snat—eque tht viable ft may na Be endangae, any more than sees tren fom the moter without endangering the inter pyoal hath With ht reqoement the state would ave Title season topo ny abortion of abl ft, except for hee ‘Boron hat ae oot exes forthe mothers if oath and do Sint inp the fetal. omy gent, the ave mo 71 |Ix3 pial reso inthis se mand tat the High Court com 1 | eth abortion contovey with emote 7 ; " Thin pint Te ol now, A Human Life Statute Stephen H, Galebech ‘The Conges finds that present day sient ant likelihood that acta! human fe exits Isis of this finding, and in the exreie of # Including its power ender Section 5 ofthe Fou Constitution of the United States, the Cong the purpose of enforing the obligation ofthe Amendment not to deprive enone of life w Inuman life shall be deemed &o ext (oan eo rate, a, helt, deft, or condition of depen “pewon” shal ecade al human life ar deine Jors Congress have constitutional power t ‘Congress were to enact a statute ofthis ‘Court upheld it? ‘The Supreme Cout's 1973 abortion docs received trenchant eri for its defective fits consequences? For the growing umber tolerate the consequences of Roe v. Wade, to li in constitutional amendment to pri sch an amendment may well aford thes hike, i wil require an extraordinary co inifiation efor. Until the time when an amendment could Interim answers thata simple marty of Co sistent with the Consitation and with Sop fact there ae. The Constitution was not dei human life unprotected. Nor do Supreme shall se, prevent or dscourage Congres fo352 Notes ne of grey Ae iy np it he Sa a age 6 So rah oe Se eey ete te ogee ae ee jetty inert ect a eT mele US's heel i soy ln ct mt ini et eo sion gel iy ha cr Sa ef Hips oer fel ar tg + Gx ss (Cnc el ok lho ty Sti whem yee ye le si tee pope Wed oc poe iin Merl tie a hog Noe 8 8 Bate Ma eC 16, Pe Rent eh SUS 64) 15 Reece Sf Bt a ‘ev Row mo 5 14 eg gc it te ig hak mig pp So Scr vw Sentinoge 10 Si coum yk he men ta a de Seng in eee es ey SS cee Sea See cnn Seog} Tt ao Coe (Suu Rs Wy ee ‘tana ran ha Gi) one ce “ec atin, Pl ay, aon om Sinan eb gp ae el ae Shoat he Rm pt mt Understanding Backmus's Argument: "The Restoning of Roe v. Wade 1 Hoe y, Woie, 410 US, 1133 159 (197). 2 ea eile of ck splot up 1978, J TNs, Je, A Pte Obie, (New Yorks The Fee Pe, 1979). Neon rns he spots ae geen fash tn of Bachman a of te cm nt hl big. 5 Werkener, "Understanding the Abaton Ament.” Pomp ant Pb ‘Afsen. (Fal 1971) (Lat the point the pest yb mie ‘ood old wd hat Thatbor wo faa tht te Cut as Fai wih trinzacel bythe ei 3.) ees. Waie #10: 08.115, 150 Ih p. 15657 Tha p58, id pp. 16-6, 6 ” a 2 H 8 6 a z Undestanding Blakmun’s Argument 293 i (Cm “Pitsphy on Mami” in wal Mn ta, es Abrtion (South Bee, ted Unserity of Note Du Pes, 1977) No dt the gps fe mee i oe ay pl pte lou legal stem bs feria pat, tot uel pense ices more pee shot "euana” wih nema, Hower, whe ‘outs bie rele on ths, the pemion has aot tes petted a tS {at he neat ely «po, a il to he ke ht the ona bak ome pelea tate equi fr Davin lel tht oe Wade, $10 US 115,182 pp. 156-59, 1s p16 ‘Adit, Backmas's lacing the btn decom within. womans Sigh of fin” ot enpotenati. But nate eater thee a ben defning the sol re which exompase the abortion decom in tag iy cmstttonal To, sil—absent aap sopposton bing sme hint of peso tothe tse abnat the set dein Tring within a womaes ht eam qe farted In any ee, the frst sf this esay fmt on ebbing the extent ofthe cmt Hb fae a the Inger agunen that sta enitence ip. 62 Ck te option e Judge Chas Bre a By w, New Yok City Heh and Hosp Cap, 3 NY. 194, 286 NiE24 857 (1972; opp ds ied 410 US. 94 (193) {Contre Noonan, Pete Cal, pp. 12-0, CObwou, gaming corportinr the at of (atl) pon fre: ‘ited pp of cn lo agate Foe Wade 410 US, 15737, 161-6 ip. 155-56. Sl the ene rope governing acl proneancenents der fm hoe ening ur ment sted bythe ital demands of el tem ‘Te ierotingqheion, which I coeet pe hee, whee we De ommany gh otk the jae when they ak a they og W, Teal p 1 ta Toa, p 160. 7 Tha ps. A Com Talk with ustie Blackmon,” New Yor Tie Magne, Feb 9 2,198, p28. Conte thespian of Fuge Raymond Petine in Dae I 358 F. Sepp 97 (DA 190). Roe Wade $10 US. 115,16 id pp ET bi, pp. 125-3, 160-01, (Cr. *Woman Spek Ot” Lf rol 4 m0. 1h, Nowe 198, p52. To the ‘pton "When do you think fts Bums 2 haan Beg, 30 pet294 Note sowed 9 38. Tn inn t Werte, “Undestnting the Aktion Anpmetse ao ny "Mitndetasdng the Abotion Avgimest,” premstel a tie See Jticiny Stbcommitee om Sept of owes being eo. 15, 18h 34 This mending veinphes the station, meting re bi nd ce lx erst be sal sbut the ry of stderr the fet fue sge ef delet 35. "Thivcite woud aves the Gout wee tac the gue ny te ied tht aan in mee Iehlgy bare made send aborion fer af thon they wae 2 deade god geal ae se ‘habit 56 Roey. Wes, 0US.10, 16. 3 ta 38 a, pp 16485, 39 Doe Balen, 410US. 179, 221-22 40 Bg $1 ps, “Or i he» gpation tht cnt ely be tema oe AHoman Lite Sttste 1 410 US. 115 197) Foci o the Cot’ sexing by « emer ttor not opps 0 stains te Ely, "The Wap of iyng Wole A Comment ou Row, Wale” 82 Yale. 910 (1973) (eine in Te ‘ann Life Ree, vol, ot, Winter 1975) A ging steko idee taking of ur ie snc Roe», Wede haben deed by the cfoande ofthe Natina Auton fr Repeal of Akron La fe the Naina ABoton Rights Action Lear, eB. Nehan,Ating Amerie [Los Aage: Right to Le) 197) 2 "We bal hese nuh oe vlc, hat all mene etd eq that they ate endoved by ther Gator with eta uneentle Rigty that mong thse ae Life bet ed the arto Hapins” The Decration ef Indpendene Se oy Woe #10 US. 157-58, laatten lea ise ia tist iat, US. Coie, amend XIV, 15 Chisgo& Southew A Lina, Is», Waterman $8, Gop, 383 US. 10, 11 (194) 111d The “ominut comietins” athe pi gutin doce we “the ‘ppopistnes ule ow ster of genet Of tetany fo the atom af the atl depen Sd st he ack of satay ees fee foil Gteminton” Calemen . Mil 307 US. 18, 455 (bi a 3 n * 2 » ‘Auman Ll Bar. Car, 369 US. 186,217 (1962. (Cc Seaton Ai Liye, Waterman SS. Cy 10048, Clan, "Region, Muay, and Abuton; A. Contin opleUsef LAL. ev 119 (1969) Hert btn 10061, 269 (198). Sey 0, Gulf, ©.& S. Ry vi, 155 US. 150156 ( (Cong ‘Clobe Sth Cong, st So IDE? (3866) (aa Bishan). (Cag. Gb, 39 Cong, It Som 7766 (1866) (atemet ‘Seca Cacnnt Commi Ag. 2718653 | Bingham wt Bowestown, Oho, Aug 24, 1886). Sey egy 12 Tscton f AMA. 7377 (1859, Se JM ‘Ase The Org und Evilution of Nat Ply, 18 (0973); |. Noonan, A Prte Chie Aerton in Arce 52 (199) (geting minutes of ALA aa meng I ‘The Feather ros Seton}. The gt of cise ofthe United State 0 eo aid ye Ue Slater by ay Ste oe (Sloe of ein cndstn of re, ‘Silos The Conpcs Sal hve power to enforce th print legion Se Fallow yak, 10 8 Ck. 2158, 774 (198; ‘United Str, 1008, UAB, 1578 wt (1080) (Redo United Str Caa, 389 3.745, 704 (1968) (ope 30US.45 195), Sect SHS. Appelt ahead Seventeenth Ame asin the ety with eel nko cen, Se fa See 42 USC. #1973 (a)-(6) (1976). Mon ofthe mes formas tne tobe he South. "The Lae cae sor ate, Nat Cx. 558 US 30 (1965), Sevid ot O15, 3M, Se Gy of Rome v United tte, 10S. CL. 148, 156 id 95 (tone | det See #2 USC. #1973(e) (178) Athogh the ection Amen fg sl tehng in agus ote han Eng ‘ec to Poto Rn shos The tet wed sen ats ch chen wa New Ye ‘See Sect 4) wo etodect san emdnento th ‘Acton the fro the Set, wate oly Wey ‘sel in copes! being See 11 Cong Ree MD {65