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Beyond Abortion: The Potential Reach of a Human Life Amendment

Published online by Cambridge University Press:  29 April 2021

David Westfall
David Westfall*
Affiliation:
John H. Watson, Harvard University, University of Missouri; Harvard
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Abstract

In Roe v. Wade, the Supreme Court held that the constitutionally protected right to privacy includes a woman's right to terminate pregnancy. Following the decision, anti-abortion groups turned to Congress to limit or negate that right. As a result of their efforts, several "human life" statutes and constitutional amendments have been proposed. This Article focuses on the implications of proposed amendments that seek to ban or limit the availability of abortions indirectly by broadening the definition of "person" to include unborn individuals. The Article discusses the potentally serious effects such an amendment would have in areas unrelated to abortion. It finds that the resulting chaos and uncertainty would have great social costs, and concludes that if abortions are to be banned or restricted, a human life amendment that directly deals with abortion is preferable to one that defines "person" to include the unborn.

Type
Articles
Information
American Journal of Law & Medicine , Volume 8 , Issue 2 , Summer 1982 , pp. 97 - 135
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1982

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References

1 410 U.S. 113 (1973). For reviews of the constitutional issues involved in Roe v. Wade, see L. Tribe, American Constitutional Law § 15-10 (1978); Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973); Epstein, Substantive Due Process by Any Other Name: The Abortion Cases, 1973 SUP. CT. Rev. 159; Henkin, , Privacy and Autonomy, 74 Colum. L. Rev. 1410 (1974)Google Scholar; Heymann, & Barzelay, , The Forest and the Trees: Roe v. Wade and its Critics, 53 B.U.L. Rev. 765 (1973)Google Scholar; Perry, , Abortion, the Public Morals, and the Police Power: The Ethical Function of Substantive Due Process, 23 U.C.L.A. L. Rev. 689 (1976)Google Scholar; Regan, Rewriting Roe v. Wade, 77 Mich. L. Rev. 1569 (1979); Tribe, , Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1 (1973)Google Scholar.

2 See, e.g., Doe v. Bolton, 410 U.S. 179 (1973) (invalidating state requirements that abortions take place in an accredited hospital with committee approval and written concurrences by two doctors other than the performing physician that an abortion was justified); Planned Parenthood v. Danforth, 428 U.S. at 75-79 (state cannot restrict abortions by requiring a virtually unavailable medical procedure); Colautti v. Franklin, 439 U.S. 379 (1979) (state cannot chill the exercise of a woman's right to choose by creating vague definitions of viability for the purpose of determining physicians’ criminal liability). Requirements of spousal or parental consent have also been invalidated. See Planned Parenthood v. Danforth, 428 U.S. 52, 67-75 (1976) (spousal consent or parental consent in the case of an unmarried minor); Bellotti v. Baird, 443 U.S. 662 (1979) (parental consent in the case of a minor). But see H.L. v. Matheson, 450 U.S. 398 (1981) (upholding state statute requiring physicians to notify unmarried minor's parents before performing abortion).

3 See generally A. Merton, Enemies of Choice—The Right to Life Movement and its Threat to Abortion (1981).

4 The amendment, a rider to an appropriations bill for the Department of Health, Education and Welfare, was enacted in 1976. Pub. L. No. 94-439, § 209, 90 Stat. 1418, 1434 (reenacted in Pub. L. No. 96-123, § 109, 93 Stat. 923, 926 (1979)). For its background, see Harris v. McRae, 448 U.S. 297, 302-03 (1980).

5 Indirect support continues through the allowance of an income tax deduction for medical expenses. See infra notes 84-85 and accompanying text.

6 See Harris v. McRae, 448 U.S. 297 (1980). See also Maher v. Roe, 432 U.S. 464 (1977) (upholding state welfare department regulation limiting Medicaid benefits to first trimester abortions that were medically necessary).

7 See supra note 2.

8 Similar responses greeted the Supreme Court's decision barring public school prayer, see Senate Fails to Amend School Prayer Ruling, 22 Cong. Q. Almanac 512 (1966); requiring equal weight for each person's vote, see Monroe, , To Preserve the United States: A Brief for the Negative on Three Current Plans to Amend the Constitution, 8 St. Louis U.L.J. 533, 539 (1963)Google Scholar; and approving forced busing to remedy racial discrimination, see 118 Cong. Rec. 4625 (1972) (comments of several constitutional law scholars).

9 See, e.g., Rice, Overriding Roe v. Wade: An Analysis of the Proposed Constitutional Amendments, 15 B.C. Indus. & Com. L. Rev. 307, 341 (1973).

10 E.g., H.R.J. Res. 96, 94th Cong., 1st Sess. (1975): “Section 1. Nothing in this Constitution shall bar any State or Territory or the District of Columbia, with regard to any area over which it has jurisdiction, from allowing, regulating, or prohibiting the practice of abortion.”

11 See infra notes 13-14 and accompanying text.

12 See infra note 16 and accompanying text.

13 H.R.J. Res. 13, 97th Cong., 1st Sess. (1981). Identical versions have been introduced by Representatives Guyer and Hyde, see H.R.J. Res. 32, 97th Cong., 1st Sess. (1981).

14 S.J. Res. 17, 97th Cong., 1st Sess. (1981); H.R.J. Res. 62, 97th Cong., 1st Sess (1981). Identical versions have been introduced by Senator Grassley and by Representatives Emerson, Luken, Mazzoli, Oberstar and Fish. S.J. Res. 18, 97th Cong., 1st Sess. (1981); H.R.J. Res. 27, 97th Cong., 1st Sess. (1981); H.R.J. Res. 99, 97th Cong., 1st Sess. (1981); H.R.J. Res. 122, 97th Cong., 1st Sess. (1981); H.R.J. Res. 125, 97th Cong., 1st Sess. (1981); H.R.J. Res. 133, 97th Cong., 1st Sess. (1981). In addition, four variations of the Gam-Rhodes proposal have been introduced by Representatives Hansen, Volkmer, Zablocki, and Russo. Representative Hansen's proposal differs as follows:

Section 2. This article shall not apply in an emergency when a reasonable medical certainty exists that continuation of the pregnancy will cause the death of the mother.

H.R.J. Res. 39, 97th Cong., 1st Sess. (1981). Representative Volkmer's proposal differs as follows:

Section 4. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three fourths of the several States, within ten years of the date of its submission to the States by the Congress.

H.R.J. Res. 92, 97th Cong., 1st Sess. (1981). Representative Zablocki's proposal differs as follows:

Section 2. No unborn person shall be deprived of life by any person: Provided, however, that nothing in this article shall prohibit a law permitting those medical procedures required to save the life of the mother when a reasonable medical certainty exists that continuation of pregnancy will cause the death of the mother, and requiring that person to make every reasonable effort, in keeping with good medical practice, to preserve the life of her unborn offspring.

H.R.J. Res. 127, 97th Cong., 1st Sess. (1981). Representative Russo's proposal differs as follows:

Section 2. No abortion shall be performed by any person except under and in conformance with a law which (1) authorizes the performance of an abortion only when a reasonable medical certainty exists that continuation of the pregnancy would result in the death of the mother,’ and (2) requires that the person performing the abortions make every reasonable effort, in keeping with good medical practice, to preserve the life of any person who is the subject of the abortion.

H.R.J. Res. 198, 97th Cong., 1st Sess. (1981).

15 S.J. Res. 19, 97th Cong., 1st Sess. (1981); H.R.J. Res. 104, 97th Cong., 1st Sess. (1981). Identical versions have been introduced by Representative Gaydos, H.R.J. Res. 106, 97th Cong., 1st Sess. (1981), and Representative Paul, H.R. 392, 97th Cong., 1st Sess. (1981).

16 S. 158, 97th Cong., 1st Sess. (1981); H.R. 900, 97th Cong., 1st Sess. (1981).

17 410 U.S. at 156-57.

18 See supra note 14 and accompanying text.

19 See infra notes 89-92 and accompanying text.

20 For a discussion o£ these issues, see L. Tribe, American Constitutional Law § 5-14 (1978).

21 Id. § 3-8.

22 See Nat'l Right to Life News, June 15, 1981, at 5, col. 4 (“[I]f you can repeat ‘kill babies’ in proper context and often enough, you will win more minds and hearts than your anti-life opponents.”).

23 Conceptus is denned as “the sum of derivatives of a fertilized ovum at any stage of development from fertilization until birth, including extraembryonic membranes as well as the embryo or fetus.” Dorland's Illustrated Medical Dictionary 296 (26th ed. 1981).

24 See generally L. Tribe, American Constitutional Law § 18 (1978).

25 Martinez v. California, 444 U.S. 277 (1980).

26 Dale, Potential Implications of S. 158 for the Legal Rights of the Unborn in Traditional Areas of Tort, Property, and Criminal Law 33 (Apr. 21, 1981) (unpublished manuscript available from Congressional Research Service).

27 See Hearing on S.J. Res. 199 and S.J. Res. 139 Before Subcomm. on Constitutional Amendments of the Senate Comm. on the Judiciary, 93d Cong., 2d Sess., 78 (1974) (testimony of Senator Buckley stating that idea of fetuses acquiring substantial rights is “silliness”).

28 See, e.g., Boston Sunday Globe, Apr. 12, 1981, at 11, col. 1 (“[Senator] East indicated that, by focusing on the definition of life, he hoped to avoid a general debate on the abortion issue itself, and thus get quicker Congressional approval.”).

29 See supra notes 13-16 and accompanying text.

30 See infra notes 70-75 and accompanying text.

31 See generally L. Tribe, American Constitutional Law § 16 (1978).

32 “[N]or shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1.

33 Id.

34 U.S. Const, amend. XXVI, § 1.

35 See Roe v. Wade, 410 U.S. 113, 156-62 (1973).

36 See Rice, supra note 9, at 326. Professor Tribe appears to concur in the equal protection approach. See Tribe, Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1, 32-33 n.144 (1973).

37 See L. Tribe, American Constitutional Law § 16-3 (1978).

38 See id. § 16-6.

39 See id. § 16-30.

40 See United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938) (dictum). Justice Stone defined such minorities in terms of political powerlessness.

41 Byrn, , The Abortion Amendments: Policy in the Light of Precedent, 18 St. Louis U.L.J. 380, 405 (1974)Google Scholar.

42 Rice, supra note 9, at 340.

43 See, e.g., Korematsu v. United States, 323 U.S. 214, 216 (1944). See generally Nowak, J. Rotunda, R., & Young, J., Handbook on Constitutional Law 524 (1978)Google Scholar.

44 See Byrn, supra note 41, at 394.

45 See infra notes 88-99 and accompanying text.

46 See infra notes 99-101 and accompanying text.

47 Burger is Critical of Writing of Laws, N.Y. Times, June 2, 1981, at B9, col. 6 (quoting Chief Justice Burger).

48 Compare White v. Weiser, 412 U.S. 783 (1973) (small deviation in population among congressional districts not permitted) with cases cited infra at note 63.

49 U.S. Const, amend. XIV, § 2.

50 U.S. Const., art. I, §§ 2, 3.

51 See Wesberry v. Sanders, 376 U.S. 1 (1964).

52 Federation for Am. Immigration Reform v. Klutznick, 486 F. Supp. 564 (D.D.C.), appeal dismissed, 447 U.S. 995 (1980) (illegal aliens must be included).

53 Cong. Globe, 39th Cong., 1st Sess. 141 (1866).

54 See U.S. Const., art. I, § 2, cl. 3.

55 Wesberry v. Sanders, 376 U.S. 1 (1964).

56 White v. Weiser, 412 U.S. 783 (1973).

57 Federation for Am. Immigration Reform v. Klutznick, 486 F. Supp. at 570 n.10.

58 U.S. Bureau of the Census, Statistical Abstract of the United States: 1980 at 70 (1981).

59 See Reynolds v. Sims, 377 U.S. 533, 568 (1964) (equal protection clause requires that the seats in a state legislature be apportioned on a population basis).

60 See Svvann v. Adams, 385 U.S. 440, 444 (1967) (“De minimus deviations are unavoidable, but … none of our cases suggest that differences of this magnitude (30-40%) will be approved without a satisfactory explanation grounded on acceptable state policy.”); Mahan v. Howell, 410 U.S. 315, 322 (1973) (approving 16.4% deviation because “broader latitude has been afforded the states”); Gaffney v. Cummings, 412 U.S. 735, 745 (1973) (“[m]inor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.”).

61 Abate v. Mundt, 403 U.S. 182, 185 (1971).

62 See Young v. Klutznick, 497 F. Supp. 1318, 1325 (E.D. Mich. 1980), rev'd on other grounds, 652 F.2d 617 (6th Cir. 1981), cert. denied, 102 S. Ct. 1430 (1982) (Constitution requires that decennial census govern apportionment within states); Borough of Bethel Park v. Stans, 319 F. Supp. 971, 979 (W.D. Pa. 1970), aff'd 449 F.2d 575 (3d Cir. 1971) (“under the Constitution, total population is a proper basis for the apportionment of both congressional and State legislative districts.”).

63 Burns v. Richardson, 384 U.S. 73, 91-92 (1966).

64 Carrington v. Rash, 380 U.S. 89 (1965), discussed in L. Tribe, American Constitutional Law § 13-14 (1978).

65 A court's remedial power may be more limited in state apportionment cases. See Minnesota State Senate v. Beens, 406 U.S. 187 (1972) (per curiam) (invalidating court's reduction of number of legislative districts from 67 to 35).

66 Staff of House Subcomm. on Census and Population of the Comm. on Post Office and Civil Service, 95th Cong., 2D Sess., Report on the Use of Population Data in Federal Assistance Programs 11 (Comm. Print 1978).

67 Note, Demography and Distrust: Constitutional Issues of the Federal Census, 94 Harv. L. Rev. 811, 863 (1981)Google Scholar.

68 420 U.S. 575 (1975).

69 Social Security Act § 406(a), 42 U.S.C. § 606(a) (1974).

70 See Williams, Firing the Woman to Protect the Fetus: The Reconciliation of Fetal Protection with Employment Opportunity Goals under Title VII, 69 Geo. L.J. 641, 697 n.318. Pregnancy can now be detected 8 to 10 days after conception. See Greenhill, J. & Friedman, E., Biological Principles and the Practice of Obstetrics 57 (1974)Google Scholar; R. Hatcher, Contraceptive Technology 134-35 (10th ed. 1980).

71 Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson, 42 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985 (1964).

72 The obvious candidate for this responsibility would be OSHA. See infra notes 190-95 and accompanying text.

73 At least one class action has already been brought on behalf of conceptuses. See Byrn v. New York City Health & Hosps. Corp., 38 A.D.2d 316, 329 N.Y.S.2d 722, aff'd, 31 N.Y.2d 194, 286 N.E.2d 887, 335 N.Y.S.2d 390 (1972), appeal dismissed; 410 U.S. 949 (1973) (class action seeking to enjoin municipal hospitals from performing abortions except to save the woman's life). See also Rice, supra note 9, at 337.

74 See, e.g., N.Y. Penal Law § 260.10 (1977).

75 67 N.J. Super. 517, 171 A.2d 140 (Juv. Ct. 1961).

76 See, e.g., Deputy v. du Pont, 308 U.S. 488 (1940). But see Griswold, , An Argument Against the Doctrine That Deductions Should be Narrowly Construed as a Matter of Legislative Grace, 5 Tax Couns. Q. 419 (1961)Google Scholar.

77 I.R.C. § 151(e)(1) (West Supp. 1981).

78 Economic Recovery Tax Act of 1981, § 104(c)(2); Id. § 151(f) (provides for cost-of living adjustment of exemption amount, beginning 1985).

79 Id. § 152(a).

80 See Rev. Rul. 73-156, 1973-1 C.B. 58 (dependency exemption for child who lived only momentarily depends on whether State or local law recognizes child as live born and there is official documentation thereof).

81 Treas. Reg. § 1.152-1(b) (1957).

82 U.S. Bureau of the Census, Statistical Abstract of the United States: 1980 at 56 (1981).

83 The Canadian Criminal Code provides that abortion is legal if it is approved by a therapeutic committee and continuation of the pregnancy would, or would be likely to, endanger the woman's life. See Can. Rev. Stat. ch. C-34, § 251(4) (1970).

84 I.R.C. § 213 (West Supp. 1981).

85 See Rev. Rul. 73-201, 1973-1 C.B. 140.

86 This issue has not yet been addressed by the Internal Revenue Service.

87 408 F.2d 631 (6th Cir. 1969).

88 Id. at 636, quoting Helvering v. San Joaquin Fruit & Investment Co., 297 U.S. 496, 499 (1936).

89 See supra note 13 and accompanying text.

90 See Gregg v. Georgia, 428 U.S. 153, 168-69 (1976).

91 See supra note 14 and accompanying text.

92 See supra note 15 and accompanying text.

93 See supra note 16 and accompanying text.

94 410 U.S. at 163.

95 Wood, & Hawkins, , State Regulation of Late Abortion and the Physician's Duty to the Viable Fetus, 45 Mo. L. Rev. 394, 410-11 (1980)Google Scholar.

96 Model Penal Code § 210 (1974).

97 See King, , The Juridical Status of the Fetus: A Proposal for Legal Protection of the Unborn, 77 Mich. L. Rev. 1647, 1658-59 (1979)Google Scholar; Dale, supra note 26, at 28.

98 Cal. Penal Code § 187 (West 1980); see People v. Apodaca, 76 Cal. App. 3d 479, 142 Cal. Rptr. 830 (1978).

99 See State v. McKee, 1 Add. 1 (Pa. 1797); State v. Winthrop, 43 Iowa 519 (1876); Wallace v. State, 10 Tex. App. 255 (1881); Morgan v. State, 148 Tenn. 417, 456 S.W. 433 (1923); Montgomery v. State, 202 Ga. 678, 44 S.E.2d 242 (1947); Keeler v. Superior Ct. of Amados County, 2 Cal. 3d 619, 87 Cal. Rptr. 481 (1970); State v. Dickinson, 23 Ohio App. 2d 259, 263 N.E.2d 253 (1970); State v. Gyles, 313 So. 2d 799 (La. 1975); State v. Brown, 381 So. 2d 916 (La. 1979). But see People v. Chavez, 77 Cal. App. 2d 621, 176 P.2d 92 (1947).

100 See Fla. Stat. Ann. § 782.09 (West 1976); La. Rev. Stat. Ann. § 14.87.1 (West 1974); Mich. Comp. Laws Ann. § 750.322 (1968); Miss. Code Ann. § 97-3-37 (1972); Mo. Ann. Stat. § 565.026 (Vernon 1979); Nev. Rev. Stat. § 200.210 (1979); N.Y. Penal Law § 125.00 (Consol. 1977); Okla. Stat. Ann. tit. 21, § 613-14 (West 1958).

101 Annot., 40 A.L.R.3d 445, 450 (1971); see Note, Live Birth: A Condition Precedent to Recognition of Rights, 4 Hofstra L. Rev. 805, 817 (1976)Google Scholar.

102 See, e.g., N.Y. Penal Law § 125.05(3) (Consol. 1977).

103 For example, both the Ashbrook and Gam-Rhodes versions would explicitly authorize the enactment of enforcement legislation by both Congress and the states. See supra notes 13-14 and accompanying text.

104 138 Mass. 14 (1884).

105 65 F. Supp. 138 (D.D.C. 1946).

106 There is disagreement among jurisdictions as to whether the conceptus must be viable at the time of the injury in order to recover. See W. Prosser, Handbook of the Law of Torts § 55 (4 th ed. 1971); Comment, Negligence and the Unborn Child: A Time for Change, 18 S.D.L. Rev. 204, 213 n.74 (1973).

107 229 Minn. 365, 38 N.W.2d 838 (1949).

108 See King, supra note 97 at 1662 n.74.

109 Id.

110 See Presley v. Newport Hosp., 117 R.I. 177, 365 A.2d 748 (1976) (dictum).

111 Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1955).

112 410 U.S. at 162. One commentator has argued that this limited recognition “should be seen as a desire … to fulfill the purpose of tort law.by providing compensation for the parents’ loss of a ‘potential child.’ ” Note, supra note 101, at 824.

113 See King, supra note 100, at 1660.

114 See Dale, supra note 26, at 5 n.18.

115 See supra notes 41-44 and accompanying text.

116 410 U.S. at 163.

117 See Stedman's Medical Dictionary 343, 395 (4th ed. 1976).

118 See supra notes 13, 16 and accompanying text.

119 See supra note 14 and accompanying text.

120 See Carey v. Population Servs. Int'l, 431 U.S. 678 (1977); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965).

121 See, e.g., Mass. Gen. Laws Ann. ch. 119, § 51A (West 1981).

122 See supra notes 70-75 and accompanying text.

123 See generally Horan, , Termination of Medical Treatment, 16 Forum 470 (1981)Google Scholar; Walfoort, , The Proper Guardian: Medical Care Decisions for Fatally III Children, 16 Forum 131 (1980)Google Scholar; Comment, The Right to Refuse Medical Treatment: Under What Circumstances Does it Exist? 18 Duq. L. Rev. 607 (1980)Google Scholar; Note, The Right of Privacy and the Terminally III Patient: Establishing the “Right-to-Die,” 31 Mercer L. Rev. 603 (1980)Google Scholar; Note, The Refusal of Life Saving Medical Treatment v. The State's Interest in the Preservation of Life: A Clarification of the Interests at Stake, 58 Wash. U.L.Q. 85 (1980)Google Scholar.

124 One court has said there is no constitutional right to choose to die. John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 580, 279 A.2d 670, 672 (1971).

125 See John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 279 A.2d 670 (1971); United States v. George, 239 F. Supp. 752 (D. Conn. 1965); In re President of Georgetown College, Inc., 331 F.2d 1000 (D.C. Cir.), cert. denied, 377 U.S. 978 (1964).

126 See, e.g., Long Island Jewish-Hillside Medical Center v. Levitt, 73 Misc. 2d 395, 342 N.Y.S.2d 356 (Sup. Ct. 1972).

127 See Satz v. Perlmutter, 362 So. 2d 160 (Fla. Dist. Ct. App. 1978), aff'd 379 So. 2d 359 (Fla. 1980); In re Spring, 1980 Mass. Adv. Sh. 1209, 405 N.E.2d 115; In re Quackenbush, 156 N.J. Super. 282, 383 A.2d 785 (1978); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977).

128 70 N.J. 10, 355 A.2d 647 (1975), cert. denied, 429 U.S. 922 (1976).

129 See, e.g., Cal. Health and Safety Code §§ 7185-7195 (West 1977). These statutes are collected in Horan, supra note 126, at 470-71 nn.1-2 (1981).

130 These interests are referred to in Superintendent of Belchertown State School v. Saikewicz, 373 Mass, at 739, 370 N.E.2d at 425, and have been cited in subsequent cases. See, e.g., Satz v. Perlmutter, 362 So. 2d 160, 162-64 (Fla. Dist. Ct. App. 1978); In re Spring, 1979 Mass. App. Ct. Adv. Sh. 2469, 399 N.E.2d 493, 497 (1979).

131 In re Quackenbush, 156 N.J. Super. 282, 290, 383 A.2d 785, 790 (1978); Superintendent of Belchertown State School v. Saikewicz, 373 Mass, at 739-40, 370 N.E.2d at 425-26; In re Quinlan, 70 N.J. 10, 41, 355 A.2d 647, 663 (1975), cert. denied, 429 U.S. 922 (1976); John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. at 584, 279 A.2d at 674.

132 See Comment, The Right to Refuse Medical Treatment: Under What Circumstances Does it Exist? 18 Duq. L. Rev. 607 (1980)Google Scholar.

133 Compare United States v. George, 239 F. Supp. 752 (D. Conn. 1965) (interests of hospital and staff in providing proper medical care a factor that may overcome patient's religious objection to blood transfusion) and John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 279 A.2d 670 (1971) (same as to religious objections of patient's mother) with In re Osborne, 294 A.2d 372 (D.C. 1972) (patient's religious objections to blood transfusion override state interests involved), In re Quackenbush, 156 N.J. Super. 282, 383 A.2d 785 (1978) (competent adult's right of privacy stronger than state interest in life where extensive bodily invasion required despite absence of dim prognosis), and Satz v. Perlmutter, 362 So. 2d 160 (Fla. Dist. Ct. App. 1978), aff'd 379 So. 2d 359 (Fla. 1980) (competent adult has right of privacy to refuse or discontinue treatment that would temporarily and artificially prolong life).

134 See, e.g., Satz v. Perlmutter, 362 So. 2d at 163 (characterizing earlier cases where blood transfusions were ordered as involving incompetent patients, equivocal refusals, or refusals of treatment by family members but not actually the patient).

135 See, e.g., In re Quinlan, 70 N.J. at 41, 355 A.2d at 663. Superintendent of Belchertown State School v. Saikewicz 373 Mass. 728, 738, 370 N.E.2d 417, 424 (1977).

136 The highest court in Massachusetts required that the “ultimate decision making responsibility” be in the courts. Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977).

137 The New Jersey Supreme Court entrusted the decision to the patient's guardian, family, doctors, and hospital ethics committee, In re Quinlan, 70 N.J. at 54, 355 A.2d at 671.

138 Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977).

139 Custody of a Minor, 378 Mass. 732, 393 N.E.2d 836 (1979); Walfoort, , The Proper Guardian: Medical Care Decisions for Fatally III Children, 16 Forum 131 (1980)Google Scholar.

140 See supra note 16 and accompanying text.

141 See In re Quinlan, 70 N.J. at 41, 355 A.2d at 663.

142 See National Research Act, Pub. L. No. 93-348, § 213, 88 Stat. 342, 353 (1974); Department of Health and Human Services, Additional Protections Pertaining to Research, Development, and Related Activities Involving Fetuses, Pregnant Women, and Human in Vitro Fertilization, 45 C.F.R. §§ 46.201-211 (1978).

143 See, e.g., Cal. Health & Safety Code § 25956 (West Supp. 1981); PA. Stat. Ann. tit. 35, § 6605 (Purdon 1979). The statutes are collected in King, supra note 97, at 1647 n.6.

144 Comment, Fetal Experimentation: Moral Legal and Medical Implications, 26 Stan. L. Rev. 1191, 1201 (1974)Google Scholar.

145 42 U.S.C. §§ 2000e to 2000e-17 (1976 & Supp. 1980).

146 See Bronson, Issue of Fetal Damage Stirs Women Workers at Chemical Plant, Wall St. J., Feb. 9, 1979, at 1, col. 1 (American Cynamid Co., Allied Chemical, Olin Corp.); Richards, Face Off on Hazardous Jobs: Women's Right: Fetus Safety, Wash. Post, Nov. 3, 1979, at A6, col. 5 (Hercules Co., Gulf Resources and Chemical Corp., General Motors); Shabecoff, Job Threats to Workers’ Fertility Emerging as Civil Liberties Issue, N.Y. Times, Jan. 15, 1979, at Al, col. 2 (Dow Chemical, Monsanto, Du Pont, Bunker Hill Smelting, Eastman Kodak, Firestone Tire & Rubber). Many companies force fertile women from higher paying to lower paying jobs. See Bronson, supra. Some transfer only pregnant women and allow them to keep both their seniority and original pay. See Shabecoff, supra.

147 Bronson, supra note 146; Richards, supra note 146; Shabecoff, supra note 146.

148 At least six cases have been filed. See Williams, supra note 70, at 641-42 nn.2, 11.

149 See id. Other articles on the topic include: Andrade, , The Toxic Workplace: Title VII Protection for the Potentially Pregnant Person, 4 Harv. Women's L.J. 71 (1981)Google Scholar; Furnish, , Prenatal Exposure to Fetally Toxic Work Environments: The Dilemma of the 1978 Pregnancy Amendment to Title VII of the Civil Rights Act of 1964, 66 Iowa L. Rev. 63 (1980)Google Scholar; Nothstein, & Aryes, , Sex-Based Considerations of Differentiation in the Workplace: Exploring the Biomedical Interface Between OSHA and Title VII, 26 Vill. L. Rev. 239 (1981)Google Scholar; Sloan, , Employer's Tort Liability When a Female Employee Is Exposed to Harmful Substances, 3 Employee Rel. L.J. 506 (1978)Google Scholar; Trebilcock, , OSHA and Equal Employment Opportunity Laws for Women, 7 Preventive Med. 372 (1978)Google Scholar; Zener, , Women in the Workplace: Toxic Substances and Sex Discrimination, 1 Toxic Substances J. 226 (1979)Google Scholar; Comment, Employment Rights of Women in the Toxic Workplace, 65 Calif. L. Rev. 1113 (1977)Google Scholar; Note, Exclusionary Employment Practices in Hazardous Industries: Protection or Discrimination, 5 Colum. J. Envtl. L. 97 (1978)Google Scholar[hereinafter cited as Exclusionary Employment].

150 EEOC Interpretive Guidelines on Employment Discrimination and Reproductive Hazards, 45 Fed. Reg. 7514 (Feb. 1, 1980) (corrected in 45 Fed. Reg; 16,501 (1980)).

151 42 U.S.C. § 2000e-2(e) (1976).

152 The Supreme Court extended Title VII's prohibition of discriminatory employment practices to include such policies in Griggs v. Duke Power Co., 401 U.S. 424 (1971). The Court said, “The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.” Id. at 431. The Court struck down the company's educational and testing requirements because it found them irrelevant to job performance.

The prohibition of practices having a disparate impact on women was first recognized in Nashville Gas Co. v. Satty, 434 U.S. 136 (1977).

153 See cases cited in Exclusionary Employment, supra note 152, at 149 n.204.

154 See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 333-34 (1976).

155 29 C.F.R. § 1604.2 (1980). The only BFOQ the EEOC guidelines recognize is for “authenticity or genuineness” (e.g. actor or actress). Id.

156 408 F.2d 228, 235 (5th Cir. 1969) (exclusion of women from being switchmen because of required heavy lifting violates Title VII).

157 422 F.2d 385, 388 (5th Cir. 1971) cert. denied, 404 U.S. 950 (1971) (exclusion of men as flight attendants because women are more soothing to passengers violates Title VII).

158 433 U.S. 321 (1976). The case involved both disproportionate impact and explicit exclusion attacks. Alabama's height and weight requirements for prison guards were struck down as not sufficiently related to the job requirement of strength. However, the exclusion of women from contact positions with male prisoners, 20% of whom had been convicted of sex offenses, was upheld as a BFOQ defense because “[t]he employee's very Womanhood would thus directly undermine her capacity to provide the security that is the essence of a correctional counselor's responsibility.” Id. at 336. The decision was limited to the facts before it—a male, maximum-security, unclassified penetentiary with “rampant violence” and a “jungle atmosphere.” Id. at 344.

159 444 F.2d 1219, 1224-25 (9th Cir. 1971).

160 42 U.S.C. § 2000e-(k) (Supp. 1980).

161 429 U.S. 125 (1976).

162 42 U.S.C. § 2000e-(k) (Supp. 1980).

163 H.R. Rep. NO. 948, 95th Cong., 2d Sess. 5, reprinted in 1978 U.S. Code Cong. & Ad. News 4749, 4753.

164 See Andrade, supra note 149; Furnish, supra note 149; Williams, supra note 70; Exclusionary Employment, supra note 149. But see Sloan, supra note 149; Zener, supra note 149; Nothstein & Ayres, supra note 149.

165 See Interpretive Guidelines on Employment Discrimination and Reproductive Hazards, 45 Fed. Reg. 7514 (1980) (withdrawn at 46 Fed. Reg. 3916 (1981)): “The BFOQ exception does not apply to the situations covered by these guidelines. That narrow exception pertains only to situations where all or substantially all of a protected class is unable to perform the duties of the job in question. Such cannot be the case in the reproductive hazards setting, where exclusions are based on the premise of danger to the employee or fetus and not on the ability to perform.” Id. at 7516.

166 Zener, supra note 149, at 227-29.

167 See Dothard v. Rawlinson, 433 U.S. 321 (1977) (safety of prison guards and prisoners considered in determining whether women could be excluded from security guard jobs in maximum-security, all-male prisons); Burwell v. Eastern Airlines, Inc., 458 F. Supp. 474 (E.D. Va. 1978) (court considered safety of passengers in determining validity of mandatory leave for pregnant flight attendants), aff'd in part, rev'd in part, and remanded, 633 F.2d 361 (4th Cir. 1980) (per curiam); Harriss v. Pan Am. World Airways, Inc., 437 F. Supp. 413, 434 (N.D. Cal. 1977) (same); Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976) (passenger safety considered in upholding exclusion of older persons from busdriver jobs).

168 see, e.g., Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 236 (5th Cir. 1969): “Men have always had the right to decide whether the incremental increase in remuneration for strenuous, obnoxious, boring, or unromantic tasks is worth the candle. The promise of Title VII is that women are now on an equal footing.”

169 See, e.g., Burwell v. Eastern Airlines, Inc., 458 F. Supp. at 496-97; Harriss v. Pan Am. World Airways, Inc., 437 F. Supp. at 422 n.13 In re Nat'l Airlines, 434 F. Supp. 254, 261 n.15 (S.D. Fla. 1977). But see Zener, supra note 152, at 229 (comparing the safety of fetuses to the safety of other third parties).

170 These cases have used both the BFOQ and business necessity defenses. See, e.g., Burwell v. Eastern Airlines, Inc., 458 F. Supp. 474 (E.D. Va. 1978), aff'd in part, rev'd in part, and remanded, 633 F.2d 361 (4th Cir. 1980) (per curiam); Harriss v. Pan Am. World Airways, Inc., 437 F. Supp. 413 (N.D. Cal. 1977).

171 Compare Burwell v. Eastern Airlines, Inc., 633 F.2d 361 (4th Cir. 1980) (per curiam) and In Re Nat'l Airlines, 434 F. Supp. 254 (S.D. Fla. 1977) (mandatory leave for pregnant flight attendants during first trimester violates Title VII) with Harriss v. Pan Am. World Airways, Inc., 437 F. Supp. 413 (N.D. Cal. 1977) (mandatory leave valid BFOQ).

172 Burwell v. Eastern Airlines, Inc., 458 F. Supp. at 496-97; Harriss v. Pan Am. World Airways, Inc., 437 F. Supp. at 422 n.13, 423; In re Nat'l Airlines, 434 F. Supp. at 259.

173 Burwell v. Eastern Airlines, Inc., 458 F. Supp. at 496.

174 Harriss v. Pan Am. World Airways, Inc., 437 F. Supp. at 422 n.13.

175 Furnish, supra note 149, at 121-22; Manson, , Human and Laboratory Animal Test Systems Available for Detection of Reproductive Failure, 7 Preventive Med. 322, 326 (1978)Google Scholar; Williams, supra note 70, at 655-57; Exclusionary Employment, supra note 149, at 99-100.

176 Furnish, supra note 149, at 121-22; Manson, supra note 175, at 326; Williams, supra note 70, at 656; Exclusionary Employment, supra note 149, at 100.

177 Warshaw, , Employee Health Services for Women, 7 Preventive Med. 385, 391 (1978)Google Scholar.

178 Manson, supra note 175, at 325.

179 Id. at 327-28; Williams, supra note 70 at 657 nn.102-03; Comment, Employment Rights of Women in the Toxic Workplace, 65 Calif. L. Rev. 1113, 1117 nn.16-17.

180 Manson, supra note 175 at 326-27.

181 Id. at 327.

182 See supra note 152 and accompanying text.

183 29 U.S.C. §§ 651-678 (1976).

184 Id. § 651(b).

185 Id. § 651(b)(7).

186 Id. § 654(a)(1).

187 See id. §§ 651-678 (1976).

188 See Andrade, supra note 149, at 90-91; Williams, supra note 70, at 663.

189 See Andrade, supra note 149, at 90.

190 See generally J. Baer, The Chains of Protection: The Judicial Response to Women's Protective Labor Legislation (1978). Protective labor legislation for women only was first upheld by the Supreme Court in Muller v. Oregon, 208 U.S. 412 (1908). The Court upheld state limitations on hours women could work in factories, mechanical establishments and laundries, after striking down similar limitations for bakers in Lochner v. New York, 198 U.S. 45 (1905). The court reasoned,

That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical wellbeing of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.

Muller v. Oregon, 208 U.S. 412, 421 (1908).

191 Under guidelines proposed and later withdrawn by the EEOC, “if the hazard is shown, by reputable scientific evidence, to affect the fetus through women only, the class excluded must be limited to pregnant women and not all women of childbearing capacity.” 45 Fed. Reg. 7514, 7515 (1980) (withdrawn in 46 Fed. Reg. 3916 (1981)). See also Cheatwood v. South Cent. Bell Tel. & Tel. Co., 303 F. Supp. 754 (M.D. Ala. 1969) (“Title VII surely means that all women cannot be excluded from consideration because some of them become pregnant.”).

192 See Sloan, supra note 149, at 510-14.

193 See supra note 114 and accompanying text.

194 See supra note 190 and accompanying text.

195 Id.

196 29 C.F.R. § 1604.2(b)(1) (1981).

197 See, e.g., Rosenfeld v. Southern Pac. Co., 444 F.2d 1219 (9th Cir. 1971); Kober v. Westinghouse Electric Corp., 480 F.2d 240 (3d Cir. 1973); Manning v. General Motors Corp., 466 F.2d 812 (6th Cir. 1972), cert. denied, 410 U.S. 946 (1973). “[B]y mid-1973, the [courts] had found state hours, weight, and job prohibition laws invalid under Title VII.” Babcock, B., Freedman, A., Norton, E. & Ross, S., Sex Discrimination and the Law: Causes and Remedies, 270 (1975)Google Scholar.

198 N.Y. Est. Powers & Trusts Law § 2-1.3(a) (Consol. 1977) (emphasis supplied).

199 2 Paige Ch. 35 (N.Y. Ch. 1830).

200 See, e.g., In re Peabody, 5 N.Y.2d 541, 158 N.E.2d 841, 186 N.Y.S.2d 265 (1959).

201 N.Y. Est. Powers & Trusts Law § 3-3.3(a) (Consol. 1977).

202 Id. § 4-1.1(a).

203 Id. § 4-1.1(a)(3).

204 Id. § 4-1.1.

205 Id. § 5-1.1.

206 Id. § 5-3.1.

207 id. § 5-3.2.

208 Id. § 6-5.6.

209 Id. § 6-5.7(b).

210 See supra note 28 and accompanying text.

211 W. Burger, Report on the Problems of the Judiciary, Remarks at the Meeting of the American Bar Association (Aug. 14, 1972), 92 S.Ct. 2923, 2925 (1972).

212 See supra note 73 and accompanying text.

213 See supra notes 199-200 and accompanying text.

214 See supra notes 82-85 and accompanying text.

215 See supra notes 48-68 and accompanying text. After the 1980 census, approximately 50 lawsuits were brought by state and local governments. See, e.g., Carey v. Klutznick, 653 F.2d 732 (2d Cir. 1981).

216 287 N.Y. 61, 38 N.E.2d 131 (1941), rev'd sub nom. Riggs v. del Drago, 317 U.S. 95 (1942).

217 See id. at 79, 38 N.E.2d at 140.

218 317 U.S. 95 (1942).

219 U.S. Commission on Civil Rights, Constitutional Aspects of the Right to Limit Childbearing, 90-91 (Apr. 1975).

220 At least 146 cases dealing with the scope of state power over liquor have been reported since 1933, the year the twenty-first amendment was adopted. Over 30 have been decided since 1979.

221 See supra notes 48-65 and accompanying text.

222 See supra notes 69-71 and accompanying text.

223 See supra notes 76-88 and accompanying text.

224 See J. Greenhill & E. Friedman, Biological Principles and the Practice of Obstetrics (1974).

225 See Manson, supra note 175, at 326. Another study estimates that fewer than 60% of all conceptions survive the first month. J. Lancman, Medical Embryology, Human Development—Normal and Abnormal 47-48 (1975).

226 Hearings on S.J. Res. 119 and S.J. Res. 130 Before the Subcomm. on Constitutional Amendments of the Senate Comm. on the Judiciary, 93d Cong., 2d Sess. 79 (1974) (testimony of Sen. James Buckley).

227 See Bopp, Effect of NRLC Human Life Amendment on Birth Control Drugs and Devices, Nat'l Right to Life News, June 1, 1981, at 10, col. 1.

228 See Goodman, & Price, , Abortion and the Constitution: An Examination of the Proposed Anti-Abortion Amendments, 7 Rut.-Cam. L. Rev. 671, 692-93 (1976)Google Scholar.

229 See, e.g., Cal. Civ. Code § 7004 (West 1980). This kind of presumption deals with the timing problem arbitrarily.

230 U.S. Const. art. I, § 3, art. II, § 1.

231 U.S. Const. amend. XXVI, § 1.

232 See supra notes 145-97 and accompanying text.

233 See supra notes 199-200 and accompanying text.

234 U.S. Const. amend. XVIII.

235 u.S. Const. amend. XXI.

236 272 U.S. 581 (1926).

237 295 U.S. 480 (1935).

238 409 U.S. 109 (1972). For a discussion of this decision see Kamenshine, California v. LaRue: The Twenty-First Amendment as a Preferred Power, 26 Vand. L. Rev. 1035 (1973). See also Note, The Effect of the Twenty-First Amendment on State Authority to Control Intoxicating Liquors, 75 Colum. L. Rev. 1578 (1975)Google Scholar.

239 452 U.S. 714(1981).

240 Id. at 718.

241 Id. at 719.

242 See Kamenshine, supra note 238, at 1038-39. But see National League of Cities v. Usery, 426 U.S. 833 (1976) (the tenth amendment creates a sphere of state autonomy into which the federal government may not intrude).