Americans have compelling reason to pay attention to the Senate subcommittee hearings on the Human Life Statute scheduled for today and tomorrow. The intention of the statue is to negate the 1973 Supreme Court decision affirming a woman's right to choose to have an abortion. But it represents such a potential clash between the legislative and judicial branches of government that it has drawn opposition from legal scholars on both sides of the controversy over that decision. They question the constitutional authority of Congress to limit the jurisdiction of the courts as this statue sets out to do.
At the same time the Human Life Statute has divided those who want a constitutional amendment banning abortion: some see the statute as a diversion from the arduous drive for an amendment; some see it as a means of obtaining at least some results while the drive continues.
All in all, the need for the closest congressional and public scrutiny is clear.
This statute seeks to do what the Supreme Court did not consider it necessary to do in the 1973 Roe v. Wadem decision: define when human life begins. Indeed, the court denied that the legislative adoption of "one theory of life" --nant woman's rights. The Human Life Statute nevertheless seeks to adopt one theory by specifying that "human life shall be deemed to exist from conception, without regard to race, sex, age, health, defect, or condition of dependency; and for this purpose 'person' shall include all human life as defined herein."
The reference to "person" is meant to pin down what the terms means in the 14 th Amendment's provision against any state depriving "any person" of life, liberty, or property without due process of law. The reasoning is that states could then, for example, pass laws against abortion as murder, as depriving a "person" of life.
Roe v. Wadem concluded that "the unborn have never been recognized in the law as persons in the whole sense." It anticipated the potential problems of a Human Life Statute by noting Texa's dilemma in urging that a fetus is entitled to 14th Amendment protection as a person. The court saw a problem arising here in any exception to a prohibition on abortion -- such as permitting abortion on medical grounds to save the mother's life. It would appear to be out of line with the amendment's command not to deprive any person (now meaning the fetus) of life without due process of law.
Senator Helms, Representative Hyde, and other supporters of the statute offer a detailed argument on their side by Washington lawyer Stephen Galebach, a 1979 graduate of the Harvard Law School. He cites both the Fifth Amendment and the 14th Amendment as protecting the rights of "persons." He argues, in effect, that the statute would permit states to choose to protect the unborn "person" at any stage at the expense of the mother's currently protected rights -- but would not compel them to do so.
The congressional discussion of the statute is an opportunity to shed light on whether the American public would like the grave questions raised by abortion to be left more to state-by-state judgment; whether it wants to test the authority of Congress to restrict the jurisdiction of the courts in this way; whether it prefers the usual method of constitutional amendment as a guide to the courts; whether it believes the need to stem the tide of abortion is such as to warrant using all legal means to this end.
The fresh focus on a poignant social issue also calls for renewed emphasis on the intelligent and ethical attitudes toward families and personal relationships that can prevent the situations in which the question of abortion arises. And the effort to define a "person" encourages individuals to consult their own highest concepts to define life beyond legal controversies as a to uchstone for evaluating human existence.