the Roman government imposed a narrow definition of citizenship and permitted a general disregard for the value of human life in non-citizens. The result was widespread practice of slavery, infanticide, killing for sport, torture and other forms of barbarity, along with abortion.

The principle of the intrinsic value of human life entered the Western world as the new Judeo-Christian ethic clashed with this Roman and pagan view which awarded rights only to select individuals. 19

Significantly, the earliest Christian writing outside the New Testament, the Didache (Teaching of the Twelve Apostles), clearly prohibits abortion and infanticide, stating that, "You shall not slay the child by abortions. You shall not kill what is generated" and this teaching accords with that of other leading Christians of the time.20

The triumph of this Judeo-Christian sanctity-of-life ethic established in Western civilization a principle of protecting all individuals, not merely a select category of persons defined arbitrarily by the state. When nineteenth-century American legislators passed laws protecting unborn children from the moment of conception they acted from the same recognition of this principle that had led them to ratify the fourteenth amendment. At any rate, no statute that enforces the fourteenth amendment would violate the Constitution merely by defending the sanctity of life. That principle undergirds the amendment and a defense of it is a defense of the Constitution.

The constitutionality of S. 158 is further supported by Supreme Court opinions concerning the power of Congress to enforce the fourteenth amendment. Not only the majority opinions, but also minority opinions taking a more restrictive view of this congressional power, support the constitutionality of S. 158. Supreme "she must not be greedy for money, lest she give an abortive wickedly for payment." Id. 1.4 at p. 7. 19 See Lactantius, The Divine Institutes 6.20 in 49 THE FATHERS OF THE CHURCH 450-55 (M. McDonald trans. 1964) for a typical early Christian critique of the inhumanity of Roman values. Lactantius enumerates the ways in which the Romans degrade humanity. Beginning first with the Roman games he declares:

"For, although a man be condemned deservedly, whoever reckons it a pleasure for him to be strangled in his sight defiles his own conscience, just as surely as if he were a spectator and participant of a murder which is performed secretly. They call these games, however, in which human blood is spilled. So far has humanity departed from men that, when they kill the very life of men, they think that they are playing, but they are more harmful than all those whose blood they use for their pleasure."

Id. at 451. After concluding his discussion of the public killing that characterized the games, Lactantius then turns to the Romans' brutal attitudes towards infants, attitudes that promoted infanticide and abortion:

"It is always wrong to kill a man whom God has intended to be a sacrosanct creature. Let no one, then, think that it is to be conceded even, that newly born children may be done away with, an especially great impiety! God breaths souls into them for life, not for death. Yet men, lest they stain their hands with that which is a crime, deny light not given by them to souls still fresh and simple. Does someone think that they will be sparing of a stranger's blood who are not of their own? These are without any question criminal and unjust."

Id. at 452.

Some Romans sought to assuage their consciences by not actually killing an unwanted infant, leaving it out to die by exposure instead. They rationalized that if the gods wished to save the infant they would then do so just as they saved Oedipus in the myth. Lactantius castigates this practice as more cruel, if possible, than simple murder:

"What of those whom a false piety forces to expose? Are they able to be judged innocent who cast their own members as prey for dogs and kill whatever is in them more cruelly than if they had strangled it?"

Id. at 452-53.

20 DIDACHE 2.2. In the first few centuries after Jesus, the Christian writers who mentioned abortion opposed it. Included in their number were Clement of Alexandria, Tertullian, Cyprian, John Chrysostom, Jerome, and Augustine. See NOONAN, supra, at 11-18.

Court decisions recognize broad power in Congress under section 5 of the fourteenth amendment to "enforce, by appropriate legislation, the provisions of this article." The Court has upheld the power of Congress to make findings relevant to the enforcement of fourteenth and fifteenth amendment rights, and to enforce those amendments consistent with such findings. See South Carolina v. Katzenbach, 383 U.S. 301, 333-34 (1966). Even when Congress has made no relevant findings, the Court has upheld the power of Congress to expand the substantive scope of a fourteenth amendment right beyond the Court's previous interpretation. Katzenbach v. Morgan, 384 U.S. 641, 648-49 (1966). In Katzenbach v. Morgan the court found broad authority in Congress to interpret the provisions of the fourteenth amendment independent of the interpretations of the judicial branch, whenever Congress acts to "expand" fourteenth amendment rights. Id. at 648-49.

As it faces the problem of abortion, Congress has before it a uniquely appropriate occasion for exercising this power to find facts and make judgments relevant to the interpretation of fourteenth amendment rights. The Supreme Court's professed inability to address and resolve the question whether unborn children are human beings has left a gap in the knowledge necessary for the federal government to enforce the fourteenth amendment right to life. The congressional findings in S. 158 concerning the facts and value of human life in unborn children can now fill this gap and allow a thoroughly informed decision by both the legislative and the judicial branches concerning the power of states to protect unborn children. 21

Former Solicitor General Robert Bork testified before the Subcommittee that S. 158 was consistent with the Katzenbach v. Morgan decision but that Katzenbach was wrongly decided. Hearings on S. 158 (June 1 transcript at 10-11). Even if one takes a narrower view than that of the Katzenbach v. Morgan opinion of Congress's power to enforce the fourteenth amendment, S. 158 is still constitutional. Justice Harlan dissented from Katzenbach v. Morgan and outlined a narrow enforcement power for Congress. But even the terms of Justice Harlan's theory allow a role for Congress in cases such as S. 158:

To the extent "legislative facts" are relevant to a judi-
cial determination, Congress is well equipped to investi-
gate them, and such determinations are of course entitled
to due respect.

384 U.S. at 668 (Harlan, J., dissenting). S. 158 sets forth "legislative facts" relevant to the issue of abortion in its determination that unborn children are human beings. If the Supreme Court defers to this finding, as Justice Harlan would seem to suggest it should, the Court will have to find that the fourteenth amendment protects the lives of unborn children unless the Court denies that their lives have intrinsic worth and equal value. Another matter the Court should take into consideration is the finding of S. 158 concerning the importance of the sanctity of human life and the protection

21 For a discussion of Supreme Court respect for congressional judgments on matters of "value" rather than "fact," see footnote 22, infra.

22

afforded all human life by the fourteenth amendment.2 Both these findings of S. 158, considered in tandem, will require a reevaluation of the Supreme Court's Roe v. Wade decision.

Such an exercise of Congress's enforcement power accords with former Solicitor General Bork's view that

the justices may be persuaded to a different view of a
subject by the informed opinion of the legislature. At the
very least, a deliberate judgment by Congress on constitu-
tional matters is a powerful brief laid before the Court. A
constitutional role of even such limited dimensions is not
to be despised.

R. Bork, Constitutionality of the President's Busing Proposals, 5-6 (American Enterprise Institute 1972). Here Bork expresses substantially the same view as Abraham Lincoln's, that Congress can affirm a principle at odds with a prior Supreme Court decision that is contrary to the Constitution, and so perhaps influence the Court to overrule that decision. Members of Congress have a duty to cast their votes according to their own honest view of the Constitution. If that view is at odds with a Supreme Court decision, it is appropriate to give the Court the opportunity to conform its decision to the Constitution. S. 158 does not seek to evade judicial review; it invites judicial review. The purpose of S. 158 will be best fulfilled if the Supreme Court considers on its merits each statement of fact and value made in the bill, and then tenders a constitutional judgment accordingly.

It is crucial to note, therefore, that the constitutionality of S. 158 does not depend on one's view of Katzenbach v. Morgan and the scope of Congress's power to enforce the fourteenth amendment. The Subcommittee does not take the position that Congress has a plenary power under the enforcement clause of the fourteenth amendment to create new rights or refashion the substantive content of constitutional rights. No matter how narrow one believes Congress's power should be, it is not inappropriate for Congress to make factual findings and value decisions on questions fundamental to the interpretation of the fourteenth amendment, when the Supreme Court has declared its own inability to address those questions. Congress's attempt with S. 158 at influencing the Supreme Court to reexamine Roe v. Wade in light of congressional findings is the most responsible means to address an erroneous Supreme Court decision, a means President Lincoln clearly recognized. A constitutional amendment will be necessary only if the Supreme Court in reviewing S. 158, refuses to modify the result imposed by Roe v. Wade.

Finally, Congress should reject the view that S. 158 would "establish a religion" because it affirms the moral principle of the sanctity of human life. The signers of the Declaration of Independence and the framers of the fourteenth amendment obviously believed

22 Professor Archibald Cox, who in his testimony before the subcommittee suggested a narrow reading of Katzenbach in the context of S. 158, earlier suggested a broader reading of the decision: Congress has power under section 5 of the fourteenth amendment to extend the practical application of the amendment's broad constitutional guarantees upon its own findings of fact, characterizations, and resolution of questions of proportion and degree." Cox, The Role of Congress in Constitutional Determinations 40 CINN. REV. 199, 238 (1971) (emphasis added). The question of the sanctity of all human life involves more than the compilation of raw data; whether to regard all biological members of the human species as "human beings" would seem to be the sort of characterization, or resolution of a question of proportion and degree, which Cox's earlier view would suggest Congress has the power to make under section 5.

that the sanctity of human life is a principle embodied in our governmental order, not a principle in violation of that order. Indeed, the Supreme Court has expressly held that legislation concerning abortion does not violate the establishment clause merely because it "happens to coincide or harmonize with the tenets of some or all religions." Harris v. McRae, 448 U.S. 297, 319 (1980) (quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961)).

The assertion of some witnesses before the Subcommittee that citizens may not bring their religious beliefs to bear on public policy questions is an affront not only to well-established constitutional principles, but also to the right of religious believers to participate in the political process. See, e.g., Hearings on S. 158 (June 12 transcript at 42-43, 46-47) (testimony of Rev. William Thompson); id. at 56 (testimony of Rabbi Henry Siegman); id. at 87-90 (testimony of Rev. Paul Simmons). The Supreme Court has aptly observed:

Adherents of particular faiths and individual churches frequently take strong positions on public issues including vigorous advocacy of legal or constitutional positions. Of course, churches as much as secular bodies and private citizens have that right.

Walz v. Tax Commission, 397 U.S. 664, 670 (1970). When the subject matter of legislation concerns a legitimate sphere of government activity-and protecting human life is the most clearly legitimate and basic sphere of government activity-citizens and legislators have a right to advocate such legislation for religious as well as secular motives.

VIII. WITHDRAWAL OF JURISDICTION OF LOWER FEDERAL COURTS

Section 4 of S. 158 withdraws lower federal court jurisdiction to grant declaratory or injunctive relief in certain types of abortion cases. It expressly leaves the jurisdiction of the Supreme Court intact. The intent of this provision is to make state courts the original forum for injunction and declaratory judgment cases concerning abortion, and to ensure that the Supreme Court will have the benefit of the views of the state courts when it exercises its ultimate power of appellate review over decisions of the highest state courts involving questions of federal law.

This allocation of jurisdiction between state and federal courts in abortion cases serves important interests in the federal system. Until 1973 the states had power to determine, at least in the first instance, what protection should be extended to unborn children. Because S. 158 recognizes unborn children as living human persons, the Supreme Court should once again allow states to make legislative determinations to protect unborn children. State action to protect unborn children is likely, however, to encounter legal challenges. In any such challenges, state courts should have the initial opportunity to resolve relevant issues without interference from lower federal court injunctions or declaratory judgments. State courts are best suited to interpret state statutes in a way that carries out the will of the legislature and yet conforms to the requirements of the Constitution.

Reserving such issues to state courts in the first instance will not jeopardize constitutional rights, because, under article VI of the

Constitution (the supremacy clause), state courts are bound by the Constitution just like federal courts.23 The Supreme Court, moreover, will retain its power of appellate review over questions of constitutional interpretation. Its deliberations should benefit from the opportunity to consider the views of state courts on matters traditionally resolved under state law.

This withdrawal of lower federal court jurisdiction is consistent with the Constitution and with Supreme Court precedent. The power of Congress to limit the jurisdiction of lower federal courts has been sustained in every Supreme Court decision in which the issue was presented, and the Court has endorsed this power in the broadest terms. See, e.g., Palmore v. United States, 411 U.S. 389, 400-01 (1973) (Congress has the sole power of creating inferior federal courts and of "withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good," quoting Cary v. Curtis, 44 U.S. (3 How.) 236, 245 (1845).); Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850) (". Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies.").

Clear precedent exists for Congressional legislation removing a particular class of controversies from the federal courts. The Norris-La Guardia Act, 29 U.S.C. §§101-115, for example, withdrew from the federal courts jurisdiction to issue injunctions in labor disputes. In Lauf v. E. G. Shinner & Co., 303 U.S. 323, 330 (1938), the Supreme Court recognized the constitutionality of the Act. The withdrawal of jurisdiction in S. 158 is equally appropriate as a means to ensure state judicial review of state anti-abortion statutes.

IX. AMENDMENTS ADOPTED BY THE SUBCOMMITTEE ON SEPARATION OF POWERS

Prior to making its favorable recommendation on S.158 the Subcommittee on Separation of Powers amended the bill in several respects in response to suggestions of both supporters and opponents of the bill.

Section 1(a). This section as amended now reflects in clear and concise form the facts summarized at pages 7 to 13 of this report. The words "a significant likelihood" have been deleted because no evidence presented at the Subcommittee's hearings cast any doubt on the biological fact that conception marks the beginning of the life of a human being. Challenges to this finding by witnesses at the hearings were not challenges to the biological facts; they were either (1) attempts to redefine "human being" as including less than every member of the human species, or (2) denials that science can help decide which human beings to accord value to as persons. Both arguments concern the value given to human life, not the fact of the existence of a living human being.

23 This analysis assumes that state court systems can provide speedy adjudication of suits for injunctive and declaratory relief, with speedy review by means of interlocutory appeals if necessary. Speedy adjudication is of particular concern in the context of abortions, since an abortion delayed is an abortion denied, and an abortion performed is a human life irrevocably ended. If any states fail to provide such speedy review, it might be held under the reasoning of Battaglia v. General Motors Corp., 169 F. 2d 254 (2d Cir.), cert. denied, 335 U.S. 887 (1948) that lower federal court jurisdiction was constitutionally required with respect to that particular state. As to other states the jurisdictional limitation would still be valid.