life of the mother was threatened, I must say that I be- In any event, it seems clear to me that even if a state The majority report remains silent on these important questions. The report states that the courts should decide these matters on a case-by-case basis. It is my view that it is irresponsible to pass this bill without the Senate stating its own view on whether this bill is likely to result in the substantial curtailment of state authority over abortion funding. Leaving such matters to the discretion of the courts runs counter to the spirit of those who offer this legislation as an antidote to judicial activism. Furthermore, when legislating, it is irresponsible to leave basic questions on state authority like these unanswered: 1. Would S. 158 prohibit the states from funding clinics and hospitals that distribute drugs or devices that interfere with the development of the fertilized egg, such as IUDs and morning-after pills? 2. Would the state have a "compelling interest" in funding abortion in the case of rape that would override the fetus' protection as a person under the Fourteenth Amendment? 3. Would the state have a compelling interest in funding abortions in the case of incest? 4. Would the state have a compelling interest in funding an abortion in the case of a detectable genetic disease of the fetus? 5. Would the state have a compelling interest in funding abortions when the life of the mother was at stake? These are serious questions. The answers to them can profoundly affect state and local decision-making over basic health and safety issues. Those who support such state authority should not take these questions lightly. S. 158 AND REMOVAL OF LOWER FEDERAL COURT JURISDICTION Section 4 of S. 158 would remove the jurisdiction of the lower federal courts over certain types of abortion cases. The reason that has been cited by advocates of S. 158 for inclusion of this provision in the bill is that a limitation of the available remedies in federal court will encourage prompt review of the statute in the Supreme Court. A report issued by Senator East's office entitled Questions and Answers on S. 158 offers the following explanation for the provision: Question. Why should Congress be so concerned to prevent review of the Act by lower federal courts? Answer. The anti-injunction clause of the bill is designed to prevent lower federal courts from interfering with the enforcement of the Act. An example of this problem arose Section 5 of S. 158, as amended, contains a provision that directly addresses this concern for speedy review by the Supreme Court. It specifically provides for an expedited review of the legislation by the Supreme Court. This addresses the primary concern articulated by those who supported the section of S. 158 which limits lower federal court jurisdiction. In my view, it addresses those concerns in a manner that is less controversial and less threatening to our system of government. Many questions have been raised about the constitutionality and wisdom of attempts to limit lower federal court jurisdiction. Ševeral leading constitutional scholars have raised serious concerns about the specific provision contained in S. 158. Professor Charles Alan Wright of the University of Texas Law School observed in his letter to the Subcommittee: I think Congress has very sweeping power over the juris- cases as Hunter v. Erickson and United States v. Klein, I Even if Congress has the power to remove lower federal court jusrisdiction over constitutional matters, it must do so neutrally. It would have to remove lower federal court jurisdiction over all abortion cases. The provision in S. 158 effectively keeps out litigants on one side of the issue and allows in litigants from the other. Challenges to statutes that restrict or prohibit abortions would not be permitted to be brought in the lower federal courts. Attempts to enjoin abortions from occurring, or challenges to statutes that fund abortions, could be brought in the lower federal courts. This aspect of Section 4 of S. 158 not only raises constitutional questions, but it underscores the true intent of the provision. The provision is designed to restrict the jurisdiction of the lower federal courts so as to prevent them from enforcing certain rights fully. In my view, in such an instance, the Congressional attempt to remove lower federal court jurisdiction is violative of that provision of the Constitution from which the right flows. Additionally, we ought to consider the public policy implications of attempts to remove constitutional issues from the jurisdiction of the lower federal courts. My own view is that while the creation of the lower federal courts was initially within the discretion of Congress, the growth of our nation has significantly altered the role of the lower federal courts in our federal system. Certainly, in 1789 the Supreme Court was able to handle its role as the primary vindicator of federal rights. But the Supreme Court case load has increased dramatically since the birth of our nation, and this has had significant consequences for the lower federal courts. For a litigant who desires to vindicate his federal constitutional rights, access to the lower federal courts is an essential element in giving those rights true meaning. It is my view that we do great damage to our structure of government if we deny the central role of the lower federal courts in modern times. It is because of these arguments that I think we should use the Congressional power to limit the jurisdiction of the federal courts over constitutional issues quite sparingly. If it is invoked at all, and I personally do not think that it should be, it should only be utilized where no other alternative is available and where it can be shown to have results that are helpful to society. Because of the expedited Supreme Court review provision now contained in S. 158, I believe that a large portion of the rationale in favor of a section to remove lower federal court jurisdiction has been removed. Furthermore, I believe the section itself is unconstitutional and I oppose it on that basis. THE INTENT OF THE FOURTEENTH AMENDMENT There is an implication in the majority report that the Fourteenth Amendment was intended to protect the unborn. While it is clearly appropriate for Congress to state its opinion on whether the Fourteenth Amendment ought to apply to the unborn, that is far different from suggesting that the framers of the Fourteenth Amendment intended for the amendment to apply to the unborn. Distinguished historians who appeared before the Subcommittee addressed this issue. It is clear from their testimony that during the long debate on the Fourteenth Amendment in the 39th Congress, and during all debates in the states on the ratification of the Fourteenth Amendment, there was never any explicit mention made of the unborn, nor any reference to the issue of abortion. This is undisputed. In his testimony before the Subcommittee, Professor Carl Degler of Stanford University disputed the thesis propounded by Professor Witherspoon with regard to this finding. Professor Degler stated: Professor Witherspoon then links this discussion of the amendments concerned with the protection of life to the laws then being passed in a number of states to limit abortion. He professes to see in these state laws an extension of the concern for the freedom of the former slaves. Yet there is no mention in the discussion in Congress of these laws, nor is there any reference to abortion or to the unborn in the course of the debate on the Fourteenth Amendment. In his testimony before the Subcommittee, Dr. James Mohr of the University of Maryland at Baltimore stated: I am also troubled by the phrase "all human beings." The Fourteenth Amendment does not, in fact, refer to human beings, but rather to "citizens" and "persons." I know of no direct evidence that the framers of the Fourteenth Amendment ever intended that either of these words should apply to the preborn. None of the leading historians of the Reconstruction Era whom I was able to contact, including several who have done painstaking research both on the drafting and on the ratification of the Fourteenth Amendment, knows of any. The rights of the preborn were simply not at issue. Moreover, there is compelling evidence that they were never intended to be. Finally, the Congressional Research Service has issued a report entitled, "Examination of Congressional Intention In The Use of The Word 'Person' In the Fourteenth Amendment: Abortion Considerations." The report concludes with this analysis: A reading of the legislative history of the Fourteenth Amendment does not reveal any references to the unborn. There are no statements in the debates of the 39th Congress indicating that the framers ever considered the unborn in connection with the Amendment's protection Beyond this examination of the legislative history, one enters the realm of speculation and theorizing concerning what the framers of the Fourteenth Amendment actually intended when they used "person" in the langage of this Amendment. The record created by the Separation of Powers Subcommittee is very clear on this point. The majority report may express the views of the majority of the Subcommittee on the coverage of the Fourteenth Amendment, but that should be distinguished from the concrete evidence available to the Subcommittee on the intent of the framers of the Amendment. SCIENTIFIC TESTIMONY ON S. 158 The majority report implies that there was substantial agreement among scientific witnesses on the question of when an individual human life begins. The report attempts to minimize the diversity of views expressed by the scientific witnesses. I would simply suggest that the testimony of the scientific witnesses underscored the real complexity of the issues involved. Dr. Lewis Thomas, Chancellor of the Memorial Sloan-Kettering Cancer Center and formerly Dean of Yale Medical School told the subcommittee: The question as to when human life begins, and whether the very first single cell that comes into existence after fertilization of an ovum represents, in itself, a human life, is not in any real sense a scientific question and cannot be answered by scientists. Whatever the answer, it can nei ther be verified nor proven false using today's scientific It is therefore in the domain of metaphysics: it can be Such a cell does not differ, in its possession of all the genes needed for coding out a whole human being, from any of the other, somatic cells of the body, nor indeed from any of the billions of human cells now being cultured in research laboratories all around the world. The difference is that the progeny of a fertilized ovum develop systems for differentiation and embryogenesis; we do not yet understand this system. But the fact remains that all human cells contain the same full complement of human DNA. There are two criteria that I can think of for determining the stage of an embryo's development when the essential characteristic of a human being begins to emerge. One is the start-up of spontaneous electrical activity in the brain; this could be interpreted as the beginning of human life just as we take the cessation of such activity to indicate the end of human life. The second is the appearance of those molecular signals (antigens) at the surfaces of the embryonic cells which are the unequivocal markers of individuality and selfness. There is, in this immunological sense, a stage in embryonic development at which the fetus becomes a specific individual. This is as far as I can see science making a contribution to the question of the point at which an embryo becomes a human self. It is a limited contribution at best, and tells us nothing about the "personhood" of a single cell. Dr. Frederick Robbins, President of the Institute of Medicine of the National Academy of Sciences, wrote the following to the Subcommittee: Even the most elementary understanding of biology suggests that, from the moment of conception, the human zygote is biologically alive in that it is capable of dividing and growing. That there is biological "life" is not in dispute for the fertilized egg or for other cells of human origin. What is at question is at what point the growing mass of cells-that is, the product of conception-takes on the attributes of "personhood." That is, at what point in the sequence of development do we choose to say that the organism is a person, and therefore, of special value? Clearly, the answer to such questions rests not on scientific judgments, but solely on what we choose to define as the qualities and attributes of being a person. Is it the capacity to sustain life on one's own? To think or reason? To feel? Or is it some intangible quality that we cannot quite specify? In my view, it is social, philosophical, and religious values that provide the guidelines for making such determinations, not science. Science can answer such questions as, for example, when does an embryo's nervous system develop the capacity to sense pain, but science cannot |