interest. The first proposed "compelling" interest that it considered was that the unborn were legal "persons" under the 14th Amendment. The Court observed:

[Appellee] argues that the fetus is a "person" within the
language and meaning of the 14th Amendment. In support
of this, they outline at length in detail the well known
facts of fetal development. If this suggestion of personhood
is established, the appellant's case, of course, collapses for
the fetus' right to life would then be guaranteed specifical-
ly by the Constitution.

The Court, however, expressly rejected this argument and concluded that unborn life was not entitled to the protections of "person"-hood. This conclusion was reached after analysis of the text of the Constitution, the history of the 14th Amendment, and earlier Federal Court decisons.

I emphatically reject the analysis by the Court in this regard. I believe that it was poorly conceived and wrong. I do not, however, see how we can get around this analysis by suggesting that it did not, in fact, take place. As a legal analysis of the Roe decision by Will Caron, General Counsel of the U.Š. Catholic Conference, has observed,

Clearly, the Court's determinations were a product of
legal analysis which explicitly and repeatedly rejected the
human "personhood" of the unborn as a proper measure of
the rights of the mother, the unborn, or the State. . . in
the Court's view, the mother's constitutional right neces-
sarily presupposes the absence of 14th Amendment person-
hood for prenatal life.

The second response to the reliance upon Justice Harlan's dissent as a rationale for S. 158 is that Congress is doing far more in this bill than simply stating Congressional findings of fact and attempting to call these to the attention of the Court. If this is its objective, Congress is always free to pass a sense of the Senate resolution or to file an amicus brief with the Court. What Congress is trying to do here is entirely different. It is attempting to enact a law. It is attempting to enact a law in the face of an absolutely contrary Supreme Court decision. This law would redefine the term "person" in the 14th Amendment; it would not simply apprise the Court of Congress' perspective on biological issues or "when human life begins". Congress is attempting to exercise its constitutional lawmaking authority on the basis of its own "legislative fact" determinations. Congress itself is purporting to act on these determinations; it is not simply raising the flag of "legislative fact" determinations to see whether or not the Court will salute. Congress is attempting to impose upon the States the provisions of S. 158 which to all extents and purposes will be the law of the land, at least until the Court is able to review (and almost certainly reject) this exercise.

Third, I do not agree with the reliance upon the Harlan language because I believe that it misreads Harlan. What is most explicit in his opinion is that Congress cannot make substantive determinations about constitutionally-guaranteed rights. The authority of Congress in this regard is absent. Justice Harlan, I believe, was

clearly discussing "legislative fact finding" in the context of the traditional remedial role of Congress under the 14th Amendment. In his dissent, he stated,

In passing upon the remedial provisions [of the Act], we
reviewed first the voluminous legislative history as well as
judicial precedents supporting the basic Congressional
finding that the clear commands of the 15th Amendment
had been infringed by various State subterfuges. Given the
existence of the evil, we held the remedial steps taken by
the legislature under the enforcement clause of the 15th
Amendment to be a justifiable exercise of congressional
initiative... To the extent that legislative facts are rele-
vant to a judicial determination, Congress is well equipped
to investigate them and such determinations are, of
course, entitled to due respect. In South Carolina v. Katz-
enbach, such legislative findings were made to show that
racial discrimination in voting was actually occurring.

The case discussed by Justice Harlan, South Carolina v. Katzenbach, 383 U.S. 301 (1965), involved an undisputed exercise by Congress of its remedial authority under the 15th Amendment. It sought to create no new substantive rights or authority.

Finally, I would argue that the rationale in reliance upon the Harlan dissent misconstrues the basic function of Congress. While I would be in total agreement that the Court, as illustrated in the Roe case, has itself lost sight of its proper constitutional role, I would repeat Professor Bork's warning that one "deformation" of the Constitution "is not properly cured by further deformations". Even if S. 158 was no more than a Congressional attempt to get the Court to take another look at its 1973 decisions, there would still be no basis for the Congress to "advise" the Supreme Court on the "proper" meaning of the Constitution. The role of the Congress is to legislate. When Congress passes legislation, there ought to be a presumption that such legislation is valid at the outset. This presumption could not obtain under the circumstances of S. 158. Passage of S.158 would mean that there would be in existence two conflicting "laws" derived from the Constitution. These would exist simultaneously, at least until the Court was confronted with a "case or controversy" allowing the matter to be resolved (as it would certainly be in favor of the Court-interpreted law). Such a situation would be highly detrimental to our constitutional system. Let me conclude by saying that I have given every possible presumption of constitutionality to this legislation. I have reluctantly voted it out of Subcommittee in order to sustain the debate on its provisions. I will continue to maintain an open mind on this proposal. I am favorably disposed to virtually any measure to save the lives of the unborn, even if it is not my first or second or third choice. At this point, however, I cannot state my support for this legislation.

My present views on S. 158 are, if anything, strengthened by its extremely limited scope. Even if I believed the bill to be constitutional and even were it to be sustained by the Court, all that the bill would do, arguably, is to allow individual States to bar publicly funded abortions. As this Report notes,

while S. 158 will prevent States from funding or per-
forming abortions on demand, it will not prevent the per-
formance of abortion by private means, The 14th Amend-
ment only provides that no State shall deprive any person
of life without due process of law.

I am not even sure whether or not it is clear that States would be required to prohibit such "publicly-supported" abortions. All that S. 158 would seem to ensure, given that it is upheld, would be to ensure that there be some element of “due process" prior to an abortion. Given that the mother would retain a "fundamental" right to abortion, I am not clear as to what circumstances would satisfy the "due process" requirement. Given the tendencies of the judiciary in this area, I am not much comforted by this "guarantee".

Despite my disagreement with the Chairman of the Subcommittee on the Separation of Powers, Senator John East, on some aspects of S. 158, let me express my admiration for his willingness to place the issue of abortion as the priority issue on the agenda of his subcommittee. The hearings that he has conducted on this have ensured the development of a strong record by Congress on the tragedy of abortion and they have ensured that the abortion issue continues to be a matter of highest public debate. These are no small achievements. I would strongly concur with the report of the subcommittee in virtually all particulars with the exception of the discussion on the constitutional issues relating to S. 158.

MINORITY VIEWS OF SENATOR MAX BAUCUS

Seldom in this nation's history have the public policy questions surrounding an issue been as complex or controversial as they are with abortion. Abortion has divided Americans for decades. I fully appreciate the depth of feeling on all sides of the abortion question. While there are many activists in favor of or opposed to S. 158, I believe there also are many more Americans who-like me—are wrestling in the deepest part of their souls with the questions raised by abortion. The issue involves highly intimate and personal decisions. As we discuss the constitutional and legal arguments we should not forget that millions of individual lives are touched by this issue.

In the final analysis, the issue presented by S. 158 is not the controversy surrounding abortion or Roe v. Wade. Rather, it is whether the Congress wishes to end run the constitutional amendment process and undermine the central role of the judiciary as the final arbiter for defining the terms of the Constitution. In my view, that is what is at stake-not abortion or Roe v. Wade.

THE CONSTITUTIONALITY OF S. 158

The abortion decision of 1973 was not the first controversial Supreme Court decision in our nation's history. The framers of the Constitution wisely provided within Article V a mechanism for Congress and the citizenry to respond to such decisions.

Several of the amendments to our Constitution have been direct responses to Supreme Court decisions. The Eleventh Amendment was a response to the Court's holding in Chisolm v. Georgia which subjected the states to law suits in federal courts. The Fourteenth Amendment was in response to the Court's holding in Dred Scott v. Sanford that the constitutional term "citizen" did not include Black Americans. The Sixteenth Amendment overturned the Court's interpretation of the constitutional term "direct taxes" in Pollack v. Farmer's Loan and Trust Company. And the Twentysixth Amendment was a response to the Court's holding in Oregon v. Mitchell that the Congress could not lower the voting age in state elections to 18 years of age.

Since the Chisolm case was decided in 1793, this country has had a long and consistent history of responding to constitutional decisions of the Supreme Court. The issue raised by S. 158 is not the correctness or wisdom of Roe v. Wade, but rather whether we should retain our historic tradition of utilizing Article V to amend the Constitution.

Our nation's most distinguished constitutional scholars who have analyzed S. 158 have come to the conclusion that it is an attempt to overturn a constitutional decision of the Supreme Court by simple statute. Even those who believe that Roe v. Wade was incorrectly decided, believe that S. 158 is an unconstitutional attempt to alter that decision.

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Professor Charles Alan Wright of the University of Texas Law School, stated in a letter to the Separation of Powers Subcommittee:

I find Roe unpersuasive. Nevertheless, Roe exists, it has been repeatedly reaffirmed and even extended, and I do not think Congress has authority by statute to overrule a constitutional decision of the Supreme Court. Whatever the arguments might have been if the matter where one of first impression, we have long since accepted the notion that "it is emphatically the province and duty of the Judicial Department to say what the law is," Marbury v. Madison, that the duty is now more specifically that of "this court," United States v. Nixon, and that "the federal judiciary is supreme in the exposition of the law of the Constitution..." Cooper v. Aaron.

Professor Phillip Kurland of the University of Chicago Law School wrote in his letter to the Subcommittee:

The question is not whether the Supreme Court decisions are sound or unsound. The question is what is the meaning of the word "person" in the due process clauses of the Fifth and Fourteenth Amendments. The Supreme Court has decided that a fetus is not a "person" within the meaning of those provisions. If that constitutional determination is to be overruled, it can be done only by the Supreme Court or by constitutional amendment.

Former United States Solicitor General Erwin Griswold wrote the following to the Subcommittee:

For the Congress to undertake to interfere with that decision, even under Section V of the Fourteenth Amendment, would, in my view, be an inappropriate legislative interference with the judicial power, and thus a violation of the separation of powers, which is one of the two major premises of the United States Constitution-the other being the appropriate division of powers between the states and the federal government.

Former United States Solicitor General Archibald Cox told the Subcommittee:

Over the years, a few decisions have proved clearly wrong headed, and perhaps Roe v. Wade is such a case. I, myself, wrote critically of Roe v. Wade a little while after the decision came down.

But wrong headed decisions can be changed by time and debate or by constitutional amendments. But the very function of the constitution and Court is to put individual liberties beyond the reach of both Congressonal majorities and popular clamor. Any principle which permits Congress, with the approval of the President, to nullify one constitutional right protected by the Constitution, as interpreted by the Court-that principle would sanction the nullification of others, and that is why I say that the principle of S. 158 is exceedingly dangerous, and I can only call it radical.