er to accord intrinsic worth and equal value to all human life is also central to the enforcement of the fourteenth amendment's protection of life. The Supreme Court's Roe v. Wade opinion found the judiciary unable to address the first question, whether unborn children are human beings. It did not therefore address the question whether the lives of unborn human beings are to be accorded intrinsic worth and equal value along with other human lives. When the Supreme Court faces these two congressional determinations in the course of reviewing the constitutionality of S. 158, it will therefore face a constitutional question far different from that decided in Roe v. Wade. Congress has the authority and, indeed, the duty to address questions of fact and value that are central to the interpretation and enforcement of constitutional provisions. The task of interpreting the Constitution in the context of specific cases is ultimately for the Supreme Court. But when the Supreme Court has professed an inability to address underlying questions that are fundamental to the interpretation of a constitutional provision, Congress is entirely justified in expressing its view on such questions, subject to Supreme Court review. Those who argue that Congress cannot address the questions of when a human life begins and what value to accord human life and unborn children are in effect arguing that no branch of the federal government can address these questions. Such an argument would mean that, even if unborn children are human beings, even if the Constitution accords intrinsic worth and equal value to all human lives, nevertheless no branch of government could recognize such facts and protect unborn children. Such a result would be absurd. Government cannot be powerless to recognize facts and make value decisions essential to the enforcement of a right so fundamental as the right to life. The purpose of this legislation is not to impair the Supreme Court's power to review the consitutionality of legislation, but to exercise the authority of Congress to disagree with the result of an earlier Supreme Court decision based on an investigation of facts and on a decision concerning values that the Supreme Court has declined to address. The Supreme Court retains full power to review the constitutionality of S. 158, and the Subcommittee believes that the bill should be reviewed by the Supreme Court. A primary purpose of S. 158 is precisely to produce a new consideration by the Supreme Court of its abortion decision in light of both the biological facts concerning unborn human life and the principle that all human life is of intrinsic worth and equal value. If the Supreme Court finds the determinations of Congress to be persuasive, it will change its constitutional decision as to the availability of abortion on demand. If the Supreme Court finds Congress's determinations unsubstantiated and unpersuasive, it can refuse to follow them. In either case, the Supreme Court will have an opportunity to interpret S. 158 in light of the Constitution. Some critics of S. 158 argue that even if Roe v. Wade was wrongly decided and ought to be overruled, S. 158 is unconstitutional because Congress must act in conformity with Supreme Court decisions until the Court itself chooses to overrule them. This criticism rests on a profound misapprehension of the doctrine of judicial review roused in Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803) bury, the Supreme Court, presented with a proper case, must rule in accordance with its own interpretation of the Constitution rather than with a contrary congressional interpretation, because the Justices have taken an oath to uphold the Constitution. As Chief Justice Marshall stated in Marbury, automatic judicial deference to a legislative interpretation of the Constitution would constitute an implicit violation of the Justices' oath of office; the Justices would thereby "close their eyes on the constitution, and see only the law." 5 U.S (Cranch) at 178. It does not follow, however, that once the Court has interpreted a provision of the Constitution members of Congress must automatically defer to the judicial interpretation. Indeed, members of Congress take the same oath that the Justices take to uphold the Constitution. Confronted with a proposed law that is consistent with his own honest construction of the Constitution and with his view of sound policy, but that conflicts with what he regards as an erroneous Supreme Court decision, a member of Congress has at least the right and perhaps the duty to vote for the bill. To do otherwise would be to close his eyes on the Constitution and see only the case. Through its power to issue judgments that are binding on the parties to litigation, the Supreme Court will as a practical matter generally have the final word in any dispute over constitutional interpretation. But this does not preclude the possibility of a responsible dialogue between Congress and the Court. As an attempt to influence the Supreme Court to change a constitutional decision, S. 158 calls to mind Abraham Lincoln's approach to the Supreme Court's Dred Scott decision of 1857. President Lincoln observed in his first inaugural address that for any erroneous Supreme Court decision there is "the chance that it may be over-ruled, and never become a precedent for other cases "12 Throughout his vigorous campaign against the Dred Scott decision, Abraham Lincoln emphasized an approach that would influence the Supreme Court to reverse its decision: We propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject. 13 In taking this position, Lincoln acknowledged the role of the Supreme Court in reviewing the constitutionality of legislation: I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court... [and that such decisions] are also entitled to very high respect and consideration, in all paralel [sic] cases, by all other departments of the government. 14 To influence the Supreme Court without denying its proper role within our constitutional structure, Lincoln argued that the Dred Scott decision should be opposed as a Political rule which shall be binding . on the mem bers of Congress or the President to favor no measure that 12 First Inaugural Address (March 4, 1861), reprinted in 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN 262, 268 (R. Basler ed. 1953). 13 Speech during the Lincoln-Douglas senatorial campaign (October 13, 1858), reprinted in 3 THE COLLECTED WORKS OF ABRAHAM LINCOLN 245, 255 (R. Basler ed. 1953). 14 First Inaugural Address (March 4, 1861), reprinted in 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN 262, 268 (R. Basler ed. 1953). does not actually concur with the principles of that deci- Rather, he advocated: If I were in Congress, and a vote should come up on a When Congress votes for a measure contrary to a Supreme Court decision which congressmen feel is erroneously decided, the Supreme Court upon review of that statutory measure will have an opportunity to reverse its earlier decision. Commentators have sought to define the proper limits of this approach by Congress toward decisions it considers erroneous. The distinguished scholar of constitutional law at Columbia University, Herbert Wechsler, has commented on Lincoln's idea of pursuing the "chance" that an erroneous ruling "may be over-ruled" by the Supreme Court. Wechsler states: "When that chance has been exploited and has run its course, with reaffirmation rather than reversal of decision, has not the time arrived when its acceptance is demanded, without insisting on repeated litigation?" Wechsler, The Courts and the Constitution, 65 Colum. L. Rev. 1001, 1008 (1965). S. 158 is not inconsistent with this view of the limits on Congress' role. The Supreme Court has yet to reexamine its abortion decision of 1973, and certainly it has never reexamined it in light of the biological facts concerning the humanity of unborn children and the importance of the principle of the sanctity of human life. The Court deserves a chance to reconsider its decision before Congress and the states proceed to enact a constitutional amendment reversing Roe v. Wade. If the Supreme Court considers Congress's finding in S. 158 that unborn children are human beings, and if the Court considers the principle that all human lives are of intrinsic worth and equal value, then the Court should uphold S. 158 and change its earlier decision that legal abortion on demand is required by the Constitution. Both the explicit wording and plain intent of the fourteenth amendment and the Supreme Court's decisions concerning Congress's power to enforce the fourteenth amendment support S. 158. The framers of the fourteenth amendment, as shown at page 16, supra, intended it to be universal in its application and to apply to "any human being." Cong. Globe, 39th Cong., 1st Sess. 1089 (1866) (remarks of Congressman Bingham). The fourteenth amendment does not qualify the term "person" or limit protection to a certain class or race or type of human being. It speaks in absolutes and declares unequivocally that no state shall deny any person life, liberty or property without due process of law. In the hearings held by the Subcommittee, no legislative history whatsoever was cited by any of the witnesses to indicate that the framers of the four 15 Speech during the Lincoln-Douglas senatorial campaign (October 13, 1858), reprinted in 3 THE COLLECTED WORKS OF ABRAHAM LINCOLN 245, 255 (R. Basler ed. 1953). 16 Speech during the Lincoln-Douglas senatorial campaign (July 10, 1858), reprinted in 2 THE COLLECTED WORKS OF ABRAHAM LINCOLN 484, 495 (R. Basler ed. 1953). Lincoln's view was consistent with that of Andrew Jackson in his message of 1832 vetoing the Act to recharter the Bank of the United States: "The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve." 3 MESSAGES AND PAPERS OF THE PRESIDENTS 1139, 1145 (J. Richardson ed. 1897). teenth amendment intended the term "person" to be a restrictive term including fewer than all human beings. Any suggestion that some human beings can be "nonpersons" under the law simply echoes the holding of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) a decision the fourteenth amendment was intended to re verse. It is true, of course, that Congress did not debate the question of abortion during its consideration of the fourteenth amendment. Some of the witnesses who appeared before the Subcommittee to testify against S. 158 indicated that this absence of debate was dispositive regarding the intent of the framers. It is no less true, however, that the architects of our fourteenth amendment liberties did not address the right of privacy, or whether the due process clause prohibited the states from outlawing abortion, pornography, prayer in the public schools, searches and seizures of illicit drugs in the glove compartments of automobiles, and countless other activities that the courts have held to be under the aegis of the fourteenth amendment. As Justice Marshall observed, this is a Constitution we are construing, a document which lays down general principles that are applicable to human affairs in every stage of our historical development: A constitution, to contain an accurate detail of all the that it is a constitution we are expounding. McCulloch v. Maryland 17 U.S. (4 Wheat.) 316, 407 (1819). To interpret the word "person" in its narrowest sense, and to insist that it does not encompass prenatal life because the authors of the fourteenth amendment neglected to debate the issue of abortion (which the states were then regulating to the apparent satisfaction of the framers of the amendment) makes no more sense than to argue that infants or senior citizens are not "persons" within the meaning of the amendment because the framers never discussed infanticide or euthanasia. Although the principal immediate motive of the framers was to protect the rights of ex-slaves, the fourteenth amendment, courts have long recognized, protects the right of other classes of human beings. At the time Congress was debating the fourteenth amendment and the states were ratifying the amendment, it was widely known that the life of a human being begins at conception. During the period from 1848 to 1876 almost all the states changed the common law standard, which had protected the unborn child only from the point of quickening, the time the mother first perceived the movement of the child. The new statutes "explicitly accepted the . . . assertions" of leaders of the American Medical Association that "interruption of gestation at any point in a pregnancy should be a crime . . . J. Mohr, Abortion in America 200 (1978). See Hearings on S. 158 (June 10 transcript at 84-85) (testimony of Professor Joseph Witherspoon); Hearings on S. 158 (June 1 transcript at 10810) (testimony of Professor Victor Rosenblum). In the mid-nineteenth century, doctors had learned that the unborn child was a distinct living being even prior to quickening. Statutes protecting the unborn child from the moment of conception resulted from the American Medical Association's campaign for strict anti-abortion laws, a campaign undertaken in response to advances in the knowledge of embryology. The AMA successfully sought to persuade states to protect every unborn child because abortion was the "unwarrantable destruction of human life." 12 American Medical Association, The Transactions of the American Medical Association 75, 78 (1859). As Professor Rosenblum pointed out in his testimony before the Subcommittee: Since the 14th Amendment with its broad protection of the lives of all persons was ratified by State legislatures while these very same legislatures, persuaded by newlydiscovered scientific and medical evidence, were extending the protection of the criminal law to encompass all the unborn from the time of conception or fertilization, it is a fair assumption that the unborn were not excluded from those "persons" covered by the Amendment. Hearings on S. 158 (June 1 transcript at 111) (emphasis and quotation marks added to conform to written statement). To understand the views of the framers of the fourteenth amendment with regard to the personhood of unborn children we must not confine our search to a survey of the criminal laws. These legislators were children of their culture, of thousands of years of a Judaeo-Christian civilization in which protection of human life had been "an almost absolute value in history." Noonan, "An Almost Absolute Value in History," in The Morality of Abortion 1 (J. Noonan ed. 1970). Ancient civilizations differed in their views on the value of human life and, consequently, on their views of abortion. The oath of Hippocrates, which we trace to ancient Greece, and which, until recently, set the standard for the medical profession, affirms the value of all human life. It required physicians entering the practice of medicine to swear that they "wil! not give to a woman an abortive remedy." 17 On the other hand, the Romans, with some exceptions, 18 not only allowed abortion but practiced it extensively. A reason is that 17 L. Edelstein, THE HIPPOCRatic Oath: Text, TRANSLATION, AND INTERPRETATION" 3 (1943). 18 The second-century Greco-Roman gynecologist Soranus noted that the physicians of his day were divided into two camps. One party followed Hippocrates whom Soranus quotes as saying, "I will give to no one an abortive.' This party believed that "it is the specific task of medicine to guard and preserve what has been engendered by nature." The other party, among whom Soranus included himself, allowed abortion but only under certain limited conditions: "The other party prescribes abortives, but with discrimination, that is, they do not prescribe them when a person wishes to destroy the embryo because of adultery or out of consideration for youthful beauty; but only to prevent subsequent danger in parturition if the uterus is small and not capable of accommodating the complete development, or if the uterus at its orifice has knobby swellings and fissures, or if some similar difficulty is involved." SORANUS GYNECOLOGY. 1.60 at p. 63 (O. Temkin trans. 1956). These limitations on abortion were more honored in theory than in practice and Soranus had to warn his ideal midwife that |