And finally, former United States Solicitor General Robert Bork told the Subcommittee:

The question to be answered in assessing S. 158 is whether it is proper to adopt unconstitutional countermeasures to redress unconstitutional action by the Court. I think it is not proper. The deformation of the Constitution is not properly cured by further deformation. Only if we are prepared to say that the Court has become intolerable in a fundamentally Democratic society and that there is no prospect whatever for getting it to behave properly, should we adopt a principle which contains within it the seeds of the destruction of the Court's entire constitutional role. I do not think we are at that stage.

The views of these distinguished constitutional scholars was supported by the common view of former Attorneys General Brownell, Katzenbach, Clark, Richardson, Saxbe, and Civiletti.

The consensus position of the six former Attorneys General of the United States was communicated in a letter to the Subcommittee. They wrote:

Our views about the correctness of the Supreme Court's 1973 abortion decision vary widely, but all of us are agreed that Congress has no constitutional authority either to overturn that decision by enacting a statute redefining such terms as "person" or "human life," or selectively to restrict the jurisdiction of federal courts so as to prevent them from enforcing that decision fully.

We thus regard S. 158 and H.R. 900 as an attempt to exercise unconstitutional power and a dangerous circumvention of the avenues that the Constitution itself provides for reversing Supreme Court interpretations of the Constitution.

The proponents of S. 158 acknowledge that in most cases judicial independence and the doctrine of separation of powers would require Congress to respond to a constitutional decision of the Supreme Court by constitutional amendment. They argue that Roe v. Wade is a special case and an exception to this rule because the court in Roe v. Wade invited Congress to define when human life begins.

The passage of Justice Blackmun's opinion in Roe v. Wade that they rely on reads as follows:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

If the hearings on S. 158 held by the Separation of Powers Subcommittee were conclusive on any one point it is that in 1981 there remains no consensus among scientists, philosophers and theologians on the question of when life begins. The candid observation of the Supreme Court in 1973 is as accurate a description of the Subcommittee's record as it was of the record before the Court

in Roe. The Subcommittee heard conflicting testimony from each of several disciplines. The testimony of the scientists, physicians, philosophers and theologians who appeared before the subcommittee made it apparent that our society is as divided on the question today as it was eight years ago, and that man's knowledge on the subject has not appreciably increased during the eight year period. Congress to answer the question of when life begins. The proponents of S. 158 simply feel the Court abdicated its role in not addressing the issue. But that does not alter the status of the Court's constitutional holding in the case. Consititutional experts who are in sharp disagreement on the correctness of Roe v. Wade agree that the theory behind S. 158 is based on a misreading of Roe.

Sarah Weddington, who argued Roe v. Wade before the Supreme Court, in her statement to the Subcommittee, clearly explained the nature of the holding in Roe:

The Court did not abdicate its role of defining constitutional terms. It said very clearly that in the Fourteenth Amendment, the term person does not-not “should not,” nor "might not," nor "pending further information not," but does not refer to the unborn. The Court went on to say that there was no point in its engaging in philosophic or theological speculation on the beginning of life, since there was no consensus among those who concern themselves with such things, and since the constitutional meaning of "person" was already clear without the Court assuming a function which was foreign to it.

In support of this position, Professor Lynn D. Wardle of the Brigham Young University Law School, who is a strong supporter of a human life amendment, commented in his analysis of the constitutionality of S. 158:

Contrary to the implication of Galebach, that holding (Roe) was not predicated or contingent upon a prior finding that the Court did not know when human life began. In fact, the Court did not address the question of when human life began until after it had separately analyzed and specifically concluded that the unborn are not "persons" protected by the Fourteenth Amendment.

And, finally on this point, the General Counsel to the U.S. Catholic Conference, Wilfred Caron, critiqued this point in his legal memorandum on the constitutionality of S. 158:

In this regard, it should be noted that when the Court acknowledged the judiciary's inability to speculate as to when human life begins, it did so in the context of the state's interest in safequarding potential life-not in the context of the question of personhood under the Fourteenth Amendment. The Court's candid admission cannot reasonably be regarded as opening the way for what is contemplated by these bills.

The consititutional scholars who examined S. 158 in its original form generally took the position that the only possible argument supporting its constitutionality was that Katzenbach v. Morgan

empowered Congress to "enforce" the Fourteenth Amendment by expanding the coverage of the due process clause. There is no constitutional doctrine or case law supporting the proposition that Congress has the authority to grant states a compelling interest in any activity that the Supreme Court explicitly stated the states had no interest in.

As the Supreme Court noted in the well known footnote 10 of Katzenbach v. Morgan:

Section 5 does not grant Congress power to exercise discretion in the other direction and to enact "statutes so as in effect to dilute equal protection and due process decisions of this court." We emphasize that Congress' power under Section 5 grants Congress no power to restrict, abrogate, or dilute these guarantees.

The language of Section 3 of S. 158 cannot be supported under the authority of Congress' power to enforce the Fourteenth Amendment. There is no other Congressional power that can serve as the basis for Congress to overturn constitutional decisions of the Supreme Court.

The consequences of a decision by the Supreme Court to uphold the Congress' power to enact S. 158 would be disastrous for our system of government as we now know it. If Congress can alter the court's ruling on a constitutional term as basic as the interpretation of "person" under the Fourteenth Amendment, then there is virtually no constitutional protection that Congress couldn't dilute or eliminate by simple majority vote.

Additionally, if Congress can find today by statute that life begins at conception, then a future Congress can alter or reverse that result. This approach envisions a system of government where constitutional protections are more transitory or illusory than they are today. The basic terms of the Constitution are left to be determined by the shifting majorities in Congress.

It is for these basic reasons that most of the country's leading scholars and those who have served the nation as the highest ranking legal officers have publicly announced their view that S. 158 is unconstitutional. It is highly unusual to find agreement among six former Attorneys General, three former Solicitors General, and the nation's most distinguished constitutional scholars on such a controversial issue. In my view, the consensus among them provides significant evidence that the question of the constitutionality of S. 158 is not a "close call." Rather, the theory behind the legislation runs counter to principles of judicial independence and the separation of powers that lie at the very heart of our constitutional system. I oppose the bill on that basis.

IMPACT OF S. 158 ON STATE SOVEREIGNTY AND STATE ABORTION

AND CONTRACEPTIVE POLICY

There is another aspect of S. 158 that should be considered carefully. That is the impact of S. 158 on the central role of our state governments as basic decision makers in our federal system. Although S. 158 is touted as returning power to the states, its long term impact will be to set a precedent that will lead to increased federal intervention and an erosion of state authority.

As former Solicitor General Bork stated at the Subcommittee hearings in response to a question from Senator Heflin;

Senator Heflin, if I may-I think the version of Section V of the Fourteenth Amendment that is being propounded here in support of this bill not only federalizes the question of life, but indeed, federalizes state police powers. Under the equal protection clause and the due process clause together, those are turned over to Congress, and there is no state legislation on any topic that I can think of that cannot be federalized if Congress so chooses.

And, in a letter to Senator Hatch, Professor William Van Alstyne of the Duke University School of Law, further expounded on this aspect of the bill by stating:

If Congress can (a) determine authoritatively what affirmative obligations each state has in respect to the life, liberty and property of each person, and if Congress can (b) legislate to "enforce" such affirmative obligations as determined by Congress, then indeed the rudiments of federalism are dead, the Tenth Amendment is meaningless, and each state becomes but the instrument of a uniform, Congressional determined policy of social welfare.

More specifically, the hearings on S. 158 have brought to light the fact that with regard to state and local decision making over abortion and contraception questions, the current state latitude over these areas would be substantially restricted.

Today, states are free to make their own policy decisions about what abortions to fund or not to fund. However, the intent of S. 158 is to thwart that current authority. Supporters and opponents of S. 158 who testified before the Subcommittee agreed that without any additional legislation, S. 158 would have the effect of preventing any state from engaging in conduct that interferes with the development of the fertilized egg. In other words, states would not be free to fund abortions or fund hospitals or clinics that performed abortions.

Additionally, under S. 158, states could not fund or support any person or facility involved with the use or distribution of those contraceptives that intefere with the development of the fertilized egg (e.g., IUDs and morning-after pills). State action with regard to currently available contraceptives would be prohibited without any additional legislation.

During the Subcommittee hearings of May 21, 1981, the author of S. 158, Stephen Galebach, clarified these points in the following exchange:

Senator BAUCUs. Mr. Galebach, I would like to clear up, if we could, your undestanding of how this bill would affect state action. My understanding is that the bill, if it is enacted without any additional state or federal legislation, would prohibit states from funding abortions. Is that your understanding, too?

Mr. GALEBACH. In general, except where states had a justification as compelling as, say, to prevent the death of a mother.

Senator BAUCUS. In those cases, too, would the bill also prohibit states from funding abortion clinics that distrib ute IUDs and morning-after pills in your view?

Mr. GALEBACH. It could very well.

Senator BAUCUS. That is, without additional legislation, this bill, if it passes, would have the effect of prohibiting the states from funding abortion clinics engaged in the distribution of IUDs and morning-after pills?

Mr. GALEBACH. There might be some tough legal questions that would come up as to whether the state could fund other operations of the clinic, but the state could not fund any device that would terminate a human life after conception.

Senator BAUCUS. Because that would be state action prohibited under the bill?

Mr. GALEBACH. Yes.

State legislatures could no longer make basic abortion funding decisions that they are free to make today. S. 158 precludes states from funding any abortion unless they have a "compelling" state interest. Most experts on both sides of the question agree that such an interest would only exist where the life of the mother was at stake. Therefore, states could no longeer fund abortions in the case of rape or incest if they determined that was appropriate public policy.

Professor Robert Nagel of Cornell, a supporter of S. 158, criticized the bill for its curtailment of state authority at the Subcommittee hearings of June 1:

Senator BAUCUS. Insofar as this bill would prohibit states from funding action, in a sense that is not returning the determination to the state but is establishing a national policy which prevents states from taking certain action. That is, the effect of this bill is not to throw the question of abortion back to the states-generally, it certainly is not-and it sets a national policy insofar as the bill will prevent states from funding abortions. That is correct, is it not?

Mr. NAGEL. In my view, that is an unfortunate aspect of the bill-yes.

Senator BAUCUs. It is an unfortunate aspect? Why is that?

Mr. NAGEL. Because I think it ought to be a matter for states in their own judgment to decide on.

Following that exchange, I wrote Professor Nagel and asked him his analysis of the degree to which state conduct would be limited by S. 158. I asked him whether states would be permitted to fund abortions in the case where the life of the mother was threatened. I also asked him whether a state would be permitted to fund abortions in the case of rape or incest or the detection of serious genetic defects.

By letter of July 2, Professor Nagel responded to my letter as follows:

Although you state that there seems to be agreement that states would be permitted to fund abortions where the