Killing the Handicapped--before and after Birth [16]

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KILLING "THE HANDICAPPED"--BEFORE AND AFTER BIRTH

MARTHA A. FIELD*

I have long taken the position that it is wrong-indeed unconstitutional-to adopt special rules allowing nontreatment of newborns who have handicaps.' Sometimes I have been surprised to find myself characterized as an opponent of choice concerning abortion because of my belief that there is no persuasive basis for recognizing parental discretion not to treat newborns because of their handicaps. True, the spokespersons for the "handicap rights position" are often the same right-tolife groups that oppose abortion. Nonetheless, support of a "right to life" for newborns with handicaps is consistent with belief in a broad right to choose abortion. Having said that, I do want to note that there are close parallels between the arguments for parental discretion concerning abortion and those concerning handicapped newborns. Both are arguments for parental control over the fate of their offspring, and both are raised in opposition to the offspring's "right to life." In both cases, denial of the "right to choose" may cause the parent(s) a "distressful life and future,"

* Professor of Law, Harvard Law School. I would like to express thanks for the excellent research assistance of Terry Perkins Mitman, Gail Brashers-Krug, and Rebecca Winters. I In this Article, I often use the term "handicap" instead of "disability," and I even refer to "handicapped newborns" instead of "newborns with handicaps." I use this terminology even though "disability" is a term preferred by the community of persons with disabilities. "Handicap" is considered perdorative because it derives from "hand in cap" and thus carries a connotation that those "afflicted" are objects of charity, asking for handouts, and arguably without dignity of their own. One reason I use the term nonetheless when describing infants is that in the newborn context the more degrading term is the norm. It also is the norm to say "handicapped" newborns, not newborns "with handicaps," thus turning attention from the fact that the newborn who happens to have a handicap also has many other important characteristics and should not be defined by her handicap alone. (If the law is to allow early extermination, of course, it is consistent to depersonify and downgrade the "handicapped newborn" as much as possible.) Moreover, even "disabled" or "having disabilities"--terms now more frequently applied to persons older than newborns-do not find favor with many members of the community or their friends. "Less abled" is more accurately descriptive than "disabled" in most circumstances, and "physically challenged" or "mentally challenged" (which all of us are to varying extents) are often preferable terms.

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in the words of Roe v. Wade. 2 Indeed, both arguments for choice involve a decision made by the parent in conjunction with a doctor. Both issues involve confusion as to whether it is a parent's right we are striving to protect, or the right of a physician to practice his or her profession, or both. And both involve the question of whether the parental-medical decision can be criminalized by government or whether the decision is protected. Finally, in both contexts we hear the argument, "Why don't you just give up the baby for adoption?" Although the issues are similar in these and other ways, it is nonetheless perfectly consistent to honor parental discretion in one context and not the other. No one believes that parental discretion over the life of offspring should last forever. Everyone believes that there is some point at which offspring are protected as persons, even against their own parents. In fact, one can see the whole abortion controversy as a debate over how long parental discretion should last. For most people, including promoters of the abortion option, the line is birth, if not before. In this Article, I describe "current law" on both newborns with handicaps and abortion, even though law concerning newborns with handicaps is not entirely discernible and abortion law is in a state of flux. Nonetheless, positions on both subjects are sufficiently set to show that the subjects are regarded very differently by lawmakers, despite the similarities in their issues. I argue against allowing parental discretion to cause the death of a handicapped newborn by denying needed treatment. I believe that it is both unwise and unconstitutional for governments to allow such a parental right to choose. The principle I emphasize in this context is that newborns have a right to be free from discrimination because of handicap-a right that is important to main2Jane Roe v. Henry Wade, 410 U.S. 113, 153 (1973). Although the due process, balancing analysis adopted in Roe can be applied to cases where parents claim the right to forego treatment of handicapped newborns, other rationales available to the Court would not have extended to such cases. For example, the Court could have grounded Roe on the constitutional right of the mother to make her own medical decisions (as long as women do not lose this right by becoming pregnant). See Nancy Beth Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 278 (1990) (stating that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment). Such an argument would support the result in Roe but would have no application after an infant is born. Similarly, if the Roe Court had relied upon a woman's right to use her body as she wishes, the argument would not support parental discretion after birth, even if the infant is born prematurely or considered handicapped. Many believe such alternative rationales for the woman's right to choose abortion would have been preferable to the fundamental rights analysis that the Court employed. See, e.g., Susan Estrich & Kathleen Sullivan, Abortion Politics: Writing for an Audience of One, 138 U. PA. L. REv. 119 (1989); Andrew Koppelman, Forced Labor:A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. REv. 480 (1990).

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tain. Finally, I explore the implications of this position for a woman's right to choose abortion. Recognizing newborns' right to life does not dictate one's position on abortion, but the argument against discrimination does impact the abortion debate in several less direct ways. It suggests, for example, that rules allowing abortion more liberally because of so-called "fetal deformity" are impermissible. More broadly, the nondiscrimination approach also suggests constitutional and policy problems with the government allowing abortion only "for good reason," as the government defines that term, instead of relying on the woman's right to choose, for reasons of her own. I will explore these and other consequences of antidiscrimination principles for abortion, but first I want to develop those principles in the context of parental choice not to treat newborns who have handicaps.

I. THE BABY DOE STORY The story of the Bloomington Baby Doe3 provides a context in which to think about the issues. It was an important case historically, partly because it first turned substantial public attention to the nontreatment problem. Moreover, the case illustrates well many of the difficult and recurring issues. In 1982 a baby was born in Bloomington, Indiana, who had a blocked esophagus-a medical condition that prevented him from swallowing. The usual course would have been to correct the condition by operating so that the child could ingest food and drink, and in the interim to feed him intravenously. The operation was neither new nor experimental; it had at least a ninety-percent success rate. 4 This baby-who came to be known as Baby Doe-also happened to have Down's syndrome, so it was reasonably projected that he would have some mental retardation.

I See GREG N. MAHNKE, THE INFANT DOE CONTROVERSY: AN ETHNOGRAPHIC AcCOUNT OF AMERICAN MORAL DISCOURSE 12-23 (1986); ROBERT F. WEIR, SELECTIVE NONTREATMENT OF HANDICAPPED NEWBORNS: MORAL DILEMMAS IN NEONATAL MEDICINE 128-29 (1984); U.S. COMMISSION ON CIVIL RIGHTS, MEDICAL DISCRIMINATION AGAINST CHILDREN WITH DISABILITIES 21-22 (1989) [hereinafter CIVIL RIGHTS COMMISSION]. 4 See MAHNKE, supra note 3, at 85 (citing a 95% success rate). But see WEIR, supra note 3, at 128 (noting that some doctors estimated the child's chance of surviving surgery

at 50%).

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(The extent of retardation is usually not apparent at such an early age and was not apparent in this case.)5 Because of his retardation, the parents decided that the operation should not be performed and that the baby should not be fed intravenously.6 The doctors' Hippocratic Oath prohibited the giving of a lethal injection, so the baby was slowly starved in the far corner of the newborn ward. (Phenobarbital and morphine were administered to aid with the baby's pain.) A pediatrician and nurse, along with others, sought a court order to feed the infant, but the judge ruled that the 7 parents, acting together with doctors, were entitled to let the child die. When the case was publicized, families came forward who wanted to adopt the baby.8 Surprising as it seems to some people, there is in fact a well-developed adoption market for Down's syndrome children. Would-be adopters include parents of other Down's syndrome children and others who have had some contact with mental retardation and believe that parenting children with retardation can be rewarding. 9 But the parents of Baby Doe resisted the adoption offer, saying that they had decided to let their baby die not to fulfill their own selfish interests, but because they believed that course would be in the best interests of the child. 10 On this basis, they claimed, they also had the right to resist the offer of adoption. If a judge were to consider changing her mind because of the adoption offers, should she be influenced by the fact that the first few days of 5 Baby Doe also had experienced some fetal distress and immediately after birth had a very low Apgar of two. The Apgar test measures newborn health (on the basis of color, respiration and other factors) on a scale from one to ten. Five minutes after birth, however, the Apgar was five, and ten minutes after birth the Apgar was seven. MAHNKE, Supra

note 3, at 12.

6 See MAHNKE, supra note 3, at 14; WEIR, supra note 3, at 128. I am not discussing here the use of extraordinary treatment or heroic measures. A widespread concern in this country today is that increasing technological developments will lead physicians to use all extraordinary measures to save the life of persons at the margin of life and death. The concern is felt regarding both newborns and older persons. But the Bloomington Baby Doe case, like many other Baby Doe cases, did not entail an argument that extraordinary

measures must be used. The baby there was deprived of treatment that would be used-

indeed, that parents would be required to allow-if the child did not have a handicap. Experimental or debatable procedures remain in the parents' discretion, for disabled and nondisabled children alike. In the Bloomington Baby Doe case, there was no question

that a child whose only problem was a blocked esophagus would have been given the operation and would have been fed intravenously pending correction of his condition. Indeed, if parents had refused to consent to either of these steps, hospital authorities would have gone to court and obtained permission to feed. I In re Infant Doe, No. GU 8204-004A, at 3 (Cir. Ct. Monroe County, Ind. Apr. 12,

1982), cert. denied sub nom. State ex rel. Infant Doe v. Bloomington Hosp., 464 U.S. 961 (1983). See also MAHNKE, supra note 3, at 14-18; WEIR, supra note 3, at 128; CIVIL RIGHTS COMMISSION, supra note 3, at 21-22. 8 See MAHNKE, supra note 3, at 22. 9 See id., at 32, 46. 10See id., at 17.

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starvation and dehydration had already irreversibly worsened the child's condition? The medical evidence is that if at that point the judge had ordered Baby Doe fed and had allowed him to live, the child would have been worse off-more severely retarded-throughout his life because of those first few days of starvation. Accordingly, once a judge declines to order treatment she may be reluctant to change her view regardless of the emergence of an adoption offer; otherwise she might feel that she had contributed to the child's retardation. In fact, the baby in Bloomington died after six days, 1 from starvation and dehydration. The parents, like the judge, were committed to the nontreatment decision once they made it, but in forming the decision not to treat, they had been influenced greatly by their obstetrician. They had not expected a Down's syndrome child, and when he was born they knew nothing about either Down's syndrome or other forms of mental retardation-what their baby's prospects were, what services were available, how other parents with similar children managed, how they felt, etc. Like many persons, they had had no contact with persons With mental retardation-a group that has been systematically segregated in this country until very recently, even to the extent of being removed from public view. The obstetrician involved in the case also had little experience with mental retardation, but he had a niece with a retarded child, and it seemed to be his view (though not necessarily his niece's) that this had ruined his niece's life.' 2 He counseled the parents that some Down's syndrome persons are "mere blobs," and that an alternative was to do nothing, refusing treatment and intravenous feeding, leaving the child to die.' 3 Under pressure to make a quick decision and having few other sources of information, the parents decided to follow this doctor's advice.

II. DO THE PARENTS-OR THE PARENTS ACTING IN CONJUNCTION WITH DOCTORS-HAVE A RIGHT TO CHOOSE NONTREATMENT?

A. The Absence of Persuasive TheoreticalJustification There is substantial sympathy in this country today for a right on the part of the parents--or even on the part of the medical community-to " CIVIL

RIGHTS COMMISSION, supra note 3, at 22.

12See Jeff Lyon, Playing God in the Nursery, REDBOOK, Jan. 1985, at 112, 113.

13CIVIL RIGHTS COMMISSION, supra note 3, at 21 (citing statement by Dr. Walter Owens).

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choose nontreatment in situations like the Bloomington Baby Doe case. 14 In a country where the government gives limited assistance to persons with handicaps and their families, and where such persons and their families are to some extent social pariahs, it is easy to sympathize with the parents' distress. Moreover, the medical and other costs involved in raising a child with mental retardation can be considerable and often last throughout the child's life. Since these costs are borne in part by institutions such as insurance companies, Medicaid, and the educational system, they are seen as an imposition on society, as well as upon the child's family. But the difficulties with accepting a parental right to choose in this situation remain. First, there is the theoretical difficulty. The impetus for allowing parental choice in the Baby Doe situation is very similar to the impetus in the abortion cases and concerns in large part the parents' ability to exercise some control over important developments in their own lives. But it is hard to explain how the abortion rationale for deferring to their choice could possibly apply. Even if the right to choose is accepted with respect to abortion on the ground that the parents'-or the woman's-interests are paramount, a significant part of the rationale is that the state cannot protect fetal life as human life, at least before some stage of its development. Whatever stage is selected for abortion, it seems clear that a newborn is alive in every sense. One rationale of most due process "right to choose" or "right of privacy" decisions is that the adult's choice that the government wishes to regulate does not cause tangible harm to other living persons. 5 This rationale does not work at all in cases involving nontreatment of newborn babies. Recognizing the difficulty of openly placing the parents' interests ahead of the child's, proponents of parental or parental-medical discretion over newborns with handicaps do not rely on the reproductive choice cases. Instead, they attempt to support parental discretion as euthanasia, mercy killing, or the "right to die." They do not claim that parents have a protectable right so much as babies do. The decision the parents would make becomes a decision made "for the child" and "in 14 See, e.g., Phoebe A. Haddon, Baby Doe Cases: Compromise and Moral Dilemma, 34 EMORY L.J. 545, 546 (1985).

1-See, e.g., Robert Eli Stanley v. Georgia, 394 U.S. 557 (1969) (holding possession of obscenity in the privacy of one's home constitutionally protected); Estelle T. Griswold v. Connecticut, 381 U.S. 479 (1965) (holding unconstitutional state's ban on use of birth control). But see Michael J. Bowers v. Michael Hardwick, 478 U.S. 186 (1986) (rejecting the view that only tangible harm can be prohibited by government and allowing criminalization of consensual sodomy practiced by adult homosexuals in the privacy of their home).

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the best interests of the child" rather than for the distressed parents, for the siblings, or for a society that will have to bear many of the child's expenses in life. It is the child's "right to die" that is defended. The argument is that the parents are simply exercising substituted judgment, articulating for the child the choice that she would make but cannot articulate for herself, and that they are not pursuing their own wishes. It is worth noticing, however, that the substitute decisionmakers are not disinterested here. Moreover, it is not patients who are terminally ill, permanently comatose, or even in a persistent vegetative state for whom the parents are acting as substitute decisionmakers. This is an important difference between the typical Baby Doe case on the one hand and the Karen Ann Quinlan case, the Nancy Beth Cruzan case, and other cases where the possibility of a "right to die" executed by 16 substitute decisionmakers has been recognized. There is no conflict between even a very liberal view of right-to-die doctrine and the view put forth here concerning Baby Does. For the moment at least, the contours of the right to die, and the role of substitute decisionmakers, have been left to state law. 17 Whatever the state rule is as to parental discretion under right-to-die doctrine, it applies in the context of newborns as well as older persons. For example, if state law permits parents to choose death for patients in a permanent vegetative state who have not stated any preference about their treatment in such a situation, then parents could make that choice for newborns in a permanent vegetative state as well as for older children. Similarly, a jurisdiction's rule that brain death constitutes death, permitting, for example, the harvesting of organs, would apply to newborns along with others. The Baby Doe killings with which I am concerned do not, however, fall within right-to-die principles as defined by any state; they could be justified only by a much broader view of parental discretion than is recognized in the right-to-die context.18 The right to die is typically limited to cases in which the patient is either terminally ill, in a persistent

16 See In re Karen Quinlan, 355 A.2d 647 (N.J. 1976), cert. denied,429 U.S. 922 (1976); Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990). See generally Philip G.

Peters, Jr., The State's Interest in PreservingLife: From Quinlan to Cruzan, 50 OHIO ST. L.J. 891 (1989). '7See

Cruzan, 497 U.S. 261.

18In other respects, the right-to-die and Baby Doe cases do raise common questions. For example: Will failure to supply food and water be tolerated? Is a lethal injection a

suitable substitute for slow starvation? Is it permissible for relatives to remove a patient from the hospital and administer nontreatment themselves, even in situations where the hospital refuses to cooperate?

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vegetative state, or, in a few cases, permanently unconscious. 19 The

fact that a person has mental retardation-even severe mental retardation-is not a sufficient basis to support euthanasia or hospitals' participation in a "right to die." Indeed, even living-will statutes, which involve the patient's own prior judgment about refusing health care, will usually give effect to the patient's wishes only in the case of a 20 terminal diagnosis, permanent coma, or persistent vegetative state. Even though a newborn is properly a candidate for a substitutedjudgment right to die on the same basis as older patients, the Baby Doe cases rarely involve predictions of coma or a vegetative state. Usually the predictions are of consciousness but some disability. Often predictions vary wildly. And even in those few cases where coma (rather than mere handicap) is among the predictions, such predictions for a newborn are very tentative. Often neurologists have no way of knowing what will happen except by waiting and watching. Nonetheless parents or other substitute decisionmakers, when they justify these nontreatment decisions, sometimes assert that the baby would not choose to live if that choice were presented to her. They explain that her "quality of life" cannot be a good one because of her 19See, e.g., Health Care Surrogate Act, Pub. Act 87-749, 1991 Ill. Legis. Serv. 3507 (limiting the right to refuse treatment through a surrogate decisionmaker to patients in a "[tlerminal condition," a state of "permanent unconsciousness" or an "[i]ncurable or irreversible condition"). Most states do not have statutes that deal expressly with substituted judgment for the right to die, although all have provisions by which persons can effectuate their own judgments, such as through living wills or durable powers of attorney. See Cathaleen A. Roach, Paradoxand Pandora'sBox: The Tragedy of Current Right-toDie Jurisprudence,25 U. MIcH. J.L. REF. 133, 161-63 (1991) (setting out and discussing the current "patchwork" right-to-die jurisprudence). Most state right-to-die rules are found in the case law. Id. 20In addition, the choice of death typically may not be exercised by a substitute decisionmaker without some evidence (other than the decisionmaker's judgment) that the patient would choose to refuse treatment in such circumstances. In the case of a newborn, any such rule would either prevent substituted judgment or, more likely, would have to allow the hopelessness of the patient's condition to satisfy the evidentiary burden. See In re Clair C. Conroy, 486 A.2d 1209 (N.J. 1985) (holding that incompetent individuals retain the right to refuse treatment if there is some evidence demonstrating their wish to do so or, in the absence of such evidence, if suffering makes the use of life-sustaining treatment inhumane); Superintendent of Belchertown State Sch. v. Joseph Saikewicz, 370 N.E.2d 417, 430 (Mass. 1977) (allowing superintendent of state facility for mentally retarded to deny treatment to "profoundly mentally retarded" individual without any showing of his actual wishes, based on the court's evaluation of his illness, the treatment, and his wishes). The paradigmatic right-to-die case, however, involves a person who has at one time been competent and expressive and has lived a life. Even if the Supreme Court recognizes a constitutionally protected right to die for persons who have previously left clear and convincing evidence of their wishes, see Cruzan, 497 U.S. 261, that principle does not necessarily apply to any right to die where the choice was never made by the person who will die. A "right to choose" exercised by a substitute decisionmaker is not really a right to choose at all.

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serious handicap. They do not limit their claim to situations in which the baby is in insurmountable pain or even to those where there is a 21 clear prognosis of death at an early age. One problem with the quality-of-life arguments is that very often they are based upon prejudice against the handicapped, and even more often they are based upon ignorance about the handicapped. 22 Sometimes, the proponents are open about explaining their decision as simply not wanting a handicapped child. Sometimes instead they say "there's no happiness in your life" if you are retarded. 23 Although such a proposition is clearly disprovable, often no person is present advocating the child's interest in living. In any case, the judge may be well aware of the burden the child with disabilities will place upon the state-especially an unwanted child with disabilities. The judge may also feel great empathy for the parents who have suddenly found themselves in this unhappy situation. He himself may or may not be acquainted with disabled persons; if he is, that may easily affect his judgment. He may or may not know about special education programs that have been made available or about the successes that people with disabilities have had in becoming productive members of the community. The isolation of most of the population from the community of persons with disabilities breeds fear of disability and persons who have it, and also breeds an ignorance of the positive attributes and capabilities that can be associated with persons who have disabilities. 24 There is a societal cult of "normalcy" that leads to the devaluation of persons with retardation and other handicaps or unusual conditions, especially by people who have little experience with the populations they devalue. Such persons may truly believe that a child with a serious disability will be "better off dead," because it seems to them so terrible to have a

22

The Reagan administrative guidelines, based on § 504 of the Rehabilitation Act of

1973, 29 U.S.C.A. § 794 (West Supp. 1992), required treatment, but made an exception for those in "the process of dying"--an exception that, of course, could be read to include any of us. 48 Fed. Reg. 30,846 (1983). It is not certain, however, that even Tay Sachs babies, who are born "normal" and have a couple of years of "normal" life, and a life expectancy of from three to five years, would qualify under that exception. But cf. WEIR, supra note 3, at 235-41 (distinguishing Tay Sachs and other terminal congenital anomalies from Down's syndrome and spina bifida for purposes of neonatal euthanasia, and preferring euthanasia for Tay Sachs). For discussion of the Reagan guidelines, see CIVIL RIGHTS COMMISSION, supra note 3, at 61-78. 2 See John A. Robertson, Involuntary Euthanasia of Defective Newborns: A Legal Analysis, 27 STAN. L. REV. 213 (1975) (questioning the quality-of-life arguments). 2 Frontline:Better Off Dead (PBS television broadcast, Nov. 1984) (transcript on file with the HarvardWomen's Law Journal) [hereinafter Frontline]. 24 Retardation may be the most frequent example, but it is by no means the only example of disability that breeds such fear. See, e.g., the story of Bree Walker, discussed infra note 158 and accompanying text.

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handicap. Persons who have experience with disability, even very serious disability, are more likely to appreciate the aspects of life that can be positive nonetheless and also to appreciate what persons with handicaps have to offer.25 They also understand that persons with disabilities are "normal" in a great many ways-and indeed that "normal" people are "handicapped" in many ways. Drawing sharp and significant dis26 tinctions between the two groups is problematic. In short, one problem with recognizing a parental-medical, or a judicial, right to decide in favor of death in Baby Doe cases is that their decisions are often based upon prejudice and ignorance. Even when acting in total good faith, parents and judges will often project onto the infant their own horror of handicap. 27 It is wrong to conceptualize the Baby Doe problem as a euthanasia or right-to-die problem because many-indeed most-of the newborns who will die, from their own '28 point of view, are not "better off dead. 2 For example, on January 5, 1993, USA TODAY reported: Yvonne and Yvette McCarther, who led a life of song, study and laughter despite being joined at the head, died at age 43, in Long Beach, Calif., apparently of natural causes, a friend said. They were among the world's oldest unseparated Siamese twins. Sean McNamara, Twins Dead, USA TODAY, Jan. 5, 1993, at 3A. Persons lacking association with Siamese twins would probably not imagine that such a happy life was possible. Uninformed persons who gave birth to Siamese twins joined at the head might even think that their offspring-or at least one of the twins-was "better off dead." 26In spite of these facts, this Article plays into popular misconceptions when it uses terms like "handicap" or "disability"--even though sometimes the term "persons with unusual conditions" or "different from the majority" would be more appropriate. It also sometimes refers to "the handicapped population" or "the community of persons with disabilities" as though it were a distinct and separate entity. I regret the use of this terminology, which some quite rightly will find offensive. Yet a failure of imagination, and perhaps of common parlance, prevents the use of more accurate terms that succinctly convey the thought. 27For other criticisms of the use of substituted judgment in this context, see Carl E. Schneider, Rights Discourse and Neonatal Euthanasia,76 CAL. L. REV. 151, 165 (1988); Martha Minow, Beyond State Intervention in the Family: For Baby Jane Doe, 18 U. MICH. J.L. REF. 933, 974 (1985); Abigail Lawlis Kuzma, The Legislative Response to Infant Doe, 59 IND. L.J. 377, 381-86 (1983). 21Indeed there is no inherent reason why persons with handicaps should not be as happy as others. They do have fewer options, but as long as sufficient options are made available, the reduction of choices does not necessarily lead to unhappiness. In fact, a paramount problem of the successful executive, for example, is the very plethora of choices with the attendant difficulties of choosing between them and of properly apportioning one's time. A life with many possibilities and opportunities is as likely to result in unhappiness and self-doubt as is the life of a typical person with handicaps, if that person is raised in a loving and productive environment. One mother with a child who was born "normal" but because of staphylococcal septicaemia suffered paralysis and other problems from age six describes him as "happy just

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But sometimes the decision to terminate newborn life is said to represent a substituted judgment for the child on the theory that if the child were making her own decision, she would take into account the imposition her life would put upon her family and society. Perhaps she would. But a "substituted judgment" analysis so rationalized shifts the focus altogether from the interests of the patient to others' interests. In substituted judgment right-to-die cases involving someone who has been an expressive adult before becoming comatose or entering a persistent vegetative state, 29 perhaps it is appropriate to take into account that person's demonstrated concern for her family and others. But with the newborn, one is simply projecting upon the baby a personality that allows society to do what it wants for reasons other than the child's own interests. B. Some PracticalDifficulties with Recognizing This "Right to Choose" In addition to the difficulty of finding a palatable theoretical explanation for parental-medical choice in the Baby Doe context, recognizing such a right would entail some more practical difficulties. Four significant problems are: (1) If such a right were recognized, to which babies should it apply? (2) How long would the right to choose last? (3) What if the parents disagreed with each other about the desirability of ending the child's life? (4) What would be the relevance of another family's request to adopt the child in question? (The astute reader will have

toying with his computer. With Lionel, happiness is something you enjoy for now, because you don't know what the future holds." Tuminah Sapawi, We Just Want A Normal Life for Him, STRAITs TIMES, Dec. 7, 1992, at 2. 2 E.g., Quinlan, 355 A.2d 647; Cruzan, 497 U.S. 261. Current practice is to exercise substituted judgment for many persons with retardation, much as if they were comatose. See, e.g., Conservatorship of Valerie N., 707 P.2d 760 (Cal. 1985). I believe that this approach is erroneous and that their own preferences should be controlling; persons with retardation should be treated like other adults who can express their own desires. In addition, termination of life-sustaining treatment, even feeding and hydration, seems sometimes to be more readily allowed when the patient has retardation, although no doctrine would support that result. See In re Conroy, 486 A.2d 1209 (N.J. 1985); Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417 (Mass. 1977). Physicians as well may require a lesser showing of the incompetent patient's wishes and even of the patient's best interests when the patient has retardation. One New Jersey couple hospitalized their adult son, who had mental retardation, when he was diagnosed with pneumonia. Their physician agreed to their request that thbir son receive no further treatment. In that case, however, the hospital ethics committee disagreed and fied suit, and treatment was continued. See Allyson Lee Moore, Right-To-Die Case Dismissed, N.J. L. J., July 4, 1991, at 8.

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noticed that all of these questions can be raised in the abortion context as well.) The first two problems are the most difficult. 1. If Parents Have a Right to Choose Whether to Sustain Life After Birth, to What Class of Newborns Does It Extend? It is an enormously important question, if parental discretion is to be recognized, what conditions are to be eradicated. Since defects usually emanate from the eye of the beholder, the territory that might be covered is vast. Does parental discretion extend to children with Down's syndrome? Children with syndromes associated with even lesser degrees of retardation? A child with a cleft palate? A child with club feet? A child with sickle cell anemia? A child who carries the gene associated with Parkinson's disease? The list of genetic diseases detectable in a tiny embryo is expanding rapidly and already includes muscular dystrophy, blood abnormalities like thalassemia and sickle cell anemia, Lesch-Nyhan syndrome (a selfmutilation disorder), Huntington's disease, cystic fibrosis, 30 and Lou Gehrig's disease, 31 to name just a few. Many other conditions are believed to be associated with chromosomal or other conditions that can be readily detected-for example, alcoholism and manic depressive syndrome. Which if any of these will be included in the list where parental discretion will be recognized? Should we fear allowing parental discretion as a step toward affirmative selection of only "the best and the brightest"? And if we are to go along that road, how is society to decide who are best and brightest 32 and who should be eradicated? If parental discretion not to treat were to be recognized, it would be important to have an official position separating permissible from impermissible killings. Moreover, the line drawn would have to be a clear one. Physicians need to know what they are required to do and in what cases, so that they do not need to "overtreat" (defined for this purpose 30See Robert Cooke, Experts Debating Gene Therapy, NEWSDAY, May 21, 1991, at 59.

31See Natalie Angier, Scientists Find Long-Sought Gene That Causes Lou Gehrig's Disease, N.Y. TIMES, Mar. 4, 1993, at Al.

12 Linus Pauling expressed concern that anonymous sperm donors, who are largely medical students, "are from a professional group that, on the average, may have some desirable qualities, but [is] not the professional group that leads in intelligence (average IQ)." Linus Pauling, Reflections on the New Biology, 15 UCLA L. REv. 267, 271 (1968). Predictably, geneticists will soon be able to give us information about a fetus's likely "intelligence quotient" ("IQ"). IQ test scores are in fact an uncertain measure of intelligence, but even if "intelligence" could be gauged, would that really be the best criterion for selection?

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as doing more than is required) in order to avoid liability. It is important to parents also to know where discretion begins and ends. After all, if there is to be discretion-based on other than medical knowledge-it is appropriate for parents, not doctors, to exercise it. 33 2. How Long Is the Right to Choose to Last? If parental discretion to choose nontreatment were to be recognized, it would have to be determined how long the right should last. There are problems with requiring a quick decision. The first few days after childbirth are a difficult time for such momentous decisionmaking. The shock and surprise of the family and the physical condition of the mother immediately after birth both suggest that having to make such an important decision immediately may not be appropriate. Another problem with requiring a quick decision is that many parents are uninformed about disabilities, retardation, likelihood of harm, facilities available to persons with disabilities, attitudes of parents of children who have disabilities, etc. To decide intelligently they need time to study the problem or to consult with people with varying views and 34 perspectives. Moreover, no one knows the child's condition in any reliable way in the first few days. 35 That is why parental discretion has most often been exercised by category-such as Down's syndrome, spina bifida, and hydrocephalus. Even though members of these groups are less handicapped than many other persons, their malady is recognized more promptly at birth and they are labeled more readily.3 6 Many physicians today believe that the most serious candidates for so-called euthanasia

3 A frequent complaint of parents who have found themselves in this situation is that doctors are exercising substantial discretion while they are kept out of the decision. See, e.g., CIVIL RIGHTS COMMISSION, supra note 3, at 27-30; Nat Hentoff, The Awful Privacy

of Baby Doe, ATLANTIC, Jan. 1985, at 54, 57; see also Jane Melton, Life with Spina Bifida, I BR. MED. J. 47 (1978) (asserting that many more parents would choose to care

for a child with spina bifida at home if, instead of accepting the doctors' advice as authoritative, they were given the true facts and encouraged to make their own decision). 3 See, e.g., Disabilities, CHI. TRm., June 25, 1986, at C13 (relating the story of a

woman who gave birth to a Down's syndrome child and decided to keep the child after being educated by the medical staff about the disability).

3S Indeed, some babies born with the most serious handicaps have been taken home from the hospital by their parents without anyone yet suspecting the existence of any problem. See HELEN FEATHERSTONE, A DIFFERENCE IN THE FAMILY: LIFE WITH A DISABLED CHILD

4 (1980).

36The Civil Rights Commission found that babies with Down's syndrome, spina bifida, or hydrocephalus are still relatively easy candidates for nontreatment. CIVIL RIGHTS COMMISSION, supra note 3, at 103-10; see also Robert Bernstein, More Dignity for the Disabled, N.Y. TIMES, Nov. 29, 1986, at A31.

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at birth are not babies from those categories but babies born very prematurely 3 7 -probably those with a birth weight under 500 grams. Some of those babies may indeed suffer severe handicap and retardation-more severe than is usually associated with Down's syndrome, spina bifida, or hydrocephalus. But "preemies" also have the possibility of being unaffected, of being "normal," and which way they will develop is often not apparent until some time after birth. These facts show that it is not appropriate to limit any parental discretion that is recognized to the first few days of newborn life. Yet even proponents of parental discretion would usually favor some time limit on the decision. Parents are often told that unless they choose death in the first few days after birth, the time for their discretion will have passed.3 8When parents of older children with handicaps have tried to deny needed treatment because they wish the child to die, physicians and hospitals have objected in court, and courts have denied parents 39 discretion to choose death at this stage. The Phillip Becker case in California is one heavily publicized example. 40 Phillip was a twelve-year-old boy with Down's syndrome, and his parents, a well-to-do attorney and his wife, did not want to consent to a heart operation Phillip needed in order to have normal life expectancy. The parents (who had institutionalized Phillip since birth) argued that they did not want Phillip to outlive them and that because of the quality of life of persons with an IQ of sixty, they should not be obliged to consent to the operation. At first, the California courts declined to appoint a guardian to consent to the operation, even though the early death Phillip would suffer without it would be a slow and painful one. 4' But after much litigation, another family was granted guardianship of Phillip, over the biological parents' objection, and the power to consent 42 to treatment. 37See, e.g., Albert R. Johnson, Ethics, the Law, and the Treatment of Seriously Ill Newborns, in LEGAL AND ETHICAL ASPECTS OF TREATING CRITICALLY AND TERMINALLY

ILL PATIENTS, 236, 237-41 (A. Edward Doudera & J. Douglas Peters eds., 1982) (claiming

that legal and philosophical consideration of withholding treatment from the "defective" or seriously ill newborn have missed the mark by not focusing on prematurity, the dominant problem in the newborn nursery). m See Frontline, supra note 23.

39See, e.g., Joan Barthel, Jimmy, MCCALLS, Nov. 1985, at 110 (describing parents who were refused the option of removing life-support equipment from their severely disabled four-month-old child); see also the New Jersey story recounted in supra note 29 (involving an adult child with mental retardation). 41Guardianship of Phillip B., 188 Cal. Rptr. 781 (Cal. Ct. App. 1983); In re Phillip B., 156 Cal. Rptr. 48 (Cal. Ct. App. 1979), cert. denied, 445 U.S. 949 (1980). See generally Robert H. Mnookin, In Memory of Jay M. Spears: The Guardianshipof PhillipB., 40

STAN. L. REV. 841 (1988) (relating the very moving Phillip Becker story). 41 In re Phillip B., 156 Cal. Rptr. at 48-52. 42Guardianship of Phillip B., 188 Cal. Rptr. 781.

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Similarly, the Stephen Dawson case in Canada involved a child who had suffered brain damage when, shortly after birth, he contracted spinal meningitis. 43 A shunt had then been implanted to relieve his hydrocephalus. When Stephen was six years old, the shunt needed replacement, but the parents chose not to consent, claiming that Ste44 phen, who had significant mental retardation, was better off dead. (The parents were separated and, like the Beckers, neither parent lived with the child in question, who was institutionalized.) The issue was hotly debated in Canada, but ultimately the courts ruled against parental choice and ordered that the surgery be performed. 45

It seems clear then that there is some cut-off point that relates to the age of the child, and the cut-off is sometime close to birth. But it is difficult to think of a rationale for any particular time limit. Furthermore, whatever line is picked, parental discretion during the discretionary period would logically extend not only to children who are born with a particular handicapping condition but also to children who become similarly disabled after birth but during the discretionary period. Such disabilities may occur early in life through tumor, spinal meningitis, oxygen deprivation, high fever during measles, or head injury, to name just a few of the possibilities. That is, if parents had three weeks to decide whether to terminate the life of a child born with severe brain damage, then a child who acquired the same degree of brain damage after one week would also logically be subject to termination, although a six-year-old who became equally irreversibly brain-damaged could not legally be denied treatment by his parents or physicians. 3. If the Parents Disagree, Whose Decision Is to Control? I believe that here, unlike in the abortion context, whichever parent opts in favor of life would be given the right to decide; the courts would presume in favor of life, and either parent could veto a decision to terminate life. Of course, the ease of the legal conclusion in the Baby Doe context does not negate the difficulties for the parents themselves if they disagree over such a question. In the abortion context, Planned Parenthoodv. Danforth4 6 held that the power of decisionmaking lies with the pregnant woman alone, and

41See Mary Ferguson, Dawson Decision Friday, UPI, Mar. 17, 1983, available in

LEXIS, Nexis library, UPI File.

44See Mary Ferguson, UPI, Mar. 14, 1983, available in LEXIS, Nexis library, UPI file. 4- See Ferguson, supra note 43.

4 Planned Parenthood v. John C. Danforth, 428 U.S. 52 (1976).

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cannot be second-guessed by her husband. That holding was recently reaffirmed in Planned Parenthood v. Casey,47 which rejected even a

state requirement that the pregnant woman notify her husband of her intent to abort. 48 In the abortion context, therefore, the choice belongs to the pregnant woman whenever the parents disagree, rather than to the parent who chooses abortion or the parent who chooses birth. Although the pregnant woman, as carrier of the fetus, is clearly the more affected parent when continuation of pregnancy is the issue, that result would not control the post-birth Baby Doe issue. When a newborn is involved, the positions of the two parents are more nearly equal, and a presumption for life would prevail. Such a presumption for life differs also from the Tennessee Supreme Court's approach in the context of frozen embryos created during infertility treatment. In Davis v. Davis,49 such embryos, which a couple

had created in order to become parents, became the subject of a custody dispute when the couple decided to divorce. Although the trial court ruled that the "frozen babies" had a right to life, the Tennessee Supreme Court held that the embryos should not be developed without the consent of both parents, except under unusual circumstances.50 But the Davis approach is not logically inconsistent with a presumption for life when parents disagree over the fate of a newborn. Just as a child who has been born need not be treated in the same way as a fetus, she need not be treated in the same way as a frozen embryo, who has yet to become a human being. 4. Is the Parents' "Right to Decide" Determinative Even if Another Family Is Offering to Adopt? The Bloomington Baby Doe case 5' and the Phillip Becker case52 both involved the question of whether an offer of adoption could trump the parents' decision to terminate the child's life. As the parents in the Bloomington case claimed, the answer in theory should turn on whether 47Planned Parenthood v. Robert P. Casey, 112 S. Ct. 2791 (1992). 4 Id. at 2826-31.

49Junior Lewis Davis v. Mary Sue Davis, 842 S.W.2d 588 (Tenn. 1992), cert. denied, No. 92-910, 1993 U.S. LEXIS 1148 (Feb. 22, 1993).

10Id. at 604. The Tennessee Supreme Court held that, unless no alternative method is reasonably available for the parent who wishes to procreate, the parent who opts not to reproduce wins. (At the time of the decision, the ex-wife no longer sought to utilize the frozen embryos herself, but wanted to donate them to another woman in need. The exhusband did not want them implanted at all.) See generally The Fate of the Frozen Embryos, N.Y. TIMES, June 6, 1992, §1, at 22. 5, See supra note 3 and accompanying text. 52See

supra note 40 and accompanying text.

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the parents are viewed as making the best decision for the child (in which case the offer of adoption would be irrelevant) or whether they

are seen as just having opted out of bearing the burden of parenting her (in which case they should not be able to block adoption). The first explanation is of course more palatable, but because I do not accept the view that parents can judge the likely "quality of life" of newborns who have handicaps, the second explanation seems much more realistic. Even if parents believe in good faith that they are pursuing their infant's "best interest" in causing the infant's death, their own interests or their 53 own prejudices and fears are likely to be playing an important role. Accordingly, at least a timely offer of adoption should be controlling in this context. This issue is not resolved, however, and has increased in practical importance as groups of parents willing to adopt children with handicaps have organized to present themselves as willing adopters in 54 many of these cases.

13 It can, of course, be argued with some persuasive force that at least some babies are "better off dead." Arguably, therefore, parents should have the right to choose death at least for that group of babies. Persons disagree concerning which babies would be covered, but those in insurmountable and irreversible pain would be likely candidates. (Other candidates, such as anacephalics, may not themselves suffer greatly but may cause great suffering on the part of their parents and have little hope of significant life, either in terms of quantity or quality.) While cases might be presented in which it does not seem sensible to treat the baby, such cases would be but a tiny fraction of all those traditionally considered for nontreatment and of all those who were not treated before attention was called to the Baby Doe problem. Because of the problems with judicial determinations of who does and who does not have an acceptable quality of life, it may be best not to recognize parental discretion to choose death for babies. Ruling out parental discretion across the board has the advantage of preventing its exercise in the much more frequent cases where discretion is improper. Our murder laws follow this pattern, prohibiting murder in all cases even if there are very good reasons supporting a particular killing (e.g., the person was a despicable person and the world is clearly better off without him). Instead, we have a per se rule against murder regardless of the character of the victim. In thinking about the slippery-slope dangers of any rule that would allow killing of newborns with disabilities, even very serious disabilities, consider the problem that any such exception for victims who are clearly despicable would create for the homicide laws. (Of course, we make some exceptions to our prohibition on intentional killing, allowing individuals to kill in self-defense,

MODEL PENAL CODE § 3.04(1) (1985), for example, and allowing society the death penalty, MODEL PENAL CODE § 210.6 (1985). Many believe that

to administer

only the selfdefense exception should be allowed, though perhaps it should be construed more broadly. See e.g., Catheryn Jo Rosen, The Excuse of Self Defense: Correctinga HistoricalAccident on Behalf of Battered Women Who Kill, 36 AM. U. L. REv. 11 (1986). The selfdefense exception is analogous to the abortion rule that is constitutionally mandated: Abortion must be allowed when the pregnant woman's life is threatened by the pregnancy.) 4 See, e.g., Carolyn Hughes Crowley, Choosing a Down's Syndrome Baby, WASH. TIMES, Jan. 8, 1992, at E3; Mary McGregory, Children from the Heart, WASH. POST, Feb. 3, 1992, at Cl; Eileen Ogintz, In the Mainstream: Children with Down's Syndrome Have As-Yet Unimaginedand UnrealizedPotential, CHI. TRn., May 3, 1988, at Cl.

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These practical issues have not been the subject of much discussion, let alone resolution. Courts and legislators are not tackling the difficulties that parental discretion over newborns would entail, in part because practices in these matters remain largely hidden. Indeed, it is difficult to know exactly what actually is happening concerning nontreatment in this country, although a 1989 U.S. Commission on Civil Rights Report makes a valiant effort to document the problem, 55 and concludes that widespread denials of treatment to children with disabilities continue. 56 In 1984, the Reagan administration issued guidelines attempting to end nontreatment because of handicap, but the guidelines were invalidated by the Supreme Court of the United States in 1986 in Bowen v. American HospitalAssociation.57 The case potentially raised the question whether medical-parental decisionmaking must be respected, but instead of deciding it, the Court reached to avoid the issue and decided the case on technical adminstrative law grounds. 5

III. DISCRIMINATION AGAINST HANDICAP I believe that recognizing parental discretion over the life of newborns who have handicaps is not only immoral and unwise, but also illegal under constitutional and statutory law. But because the Supreme Court

55The Civil Rights Commission discussed various barriers to accurate collection of this type of data. When a Baby Doe incident occurs, all the adult parties involved are eager to keep it private, the doctor and parents typically do not notify the "Baby Doe squad," and "selective nontreatment" is generally not listed as the cause of death on the child's death certificate. There are substantial disincentives to whistle-blowing, including the threatened loss of the jobs of hospital employees. Because of the resulting data dearth, the Commission relied heavily on extensive surveys of physician attitudes, testimony from persons with disabilities and their relatives, and recent medical literature. See CIVIL RIGHTS COMMISSION, supra note 3, at 103-10. -6The Commission criticized the Department of Health and Human Services for, among other things, failing to estimate from its studies how many Baby Doe killings have been taking place since the 1984 passage of the Child Abuse Amendments, Child Abuse Amendments of 1984, Pub. L. No. 98-457, § 1, 98 Stat. 1749 (codified as amended at 42 U.S.C. § 5101 (1988)), and since the Supreme Court's invalidation of the Reagan guidelines in Otis Bowen v. American HospitalAssociation, 476 U.S. 610 (1986). See CIVIL RIGHTS COMMISSION, supra note 3, at 103-10; Jeff Lyon, "Baby Doe" Decision Takes Some Heat Off Medical Community, Cm. TRIB., June 15, 1986, at C1 (describing the medical community's response to Bowen). 57Otis Bowen v. Am. Hosp. Ass'n, 476 U.S. 610 (1986). 1 Id. See infra note 94.

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has not passed on the issue, and other courts' opinions on the subject are rare, 59 the law today has not fully developed. A. ConstitutionalLaw One could argue about the fate of Baby Doe from a due process

perspective: Do infants like Baby Doe have a right to life that cannot be compromised without fault on their part, because the right to life commences at least at birth? 60 Because the newborn clearly is a human being, abortion cases are not controlling, and a right-to-life argument could easily be successful. But instead of pursuing that line of argument, I want to emphasize instead the equal protection perspective: Wherever one draws the line as to when life begins and parental discretion ends for embryos, fetuses, and newborns generally, the same line must be applied when the baby has a handicap. 61 It is departure from that principle which I believe violates federal constitutional law. Some may object that there is no constitutional violation because "strict scrutiny" does not extend to government discrimination on the basis of handicap; laws that differentiate between persons with and without handicaps need have only a "rational basis" in order to withstand constitutional attack, and the fact that persons with disabilities are more expensive to government even by itself satisfies the minimal demands that rational basis review requires. It is true that in Cleburne v. Cleburne Living Center,6 2 the Supreme Court stated that mental 59

E.g., Maine Medical Ctr. v. Houle, No. 74-145 (Me. Super. Ct. 1974), reprinted in 1215 (3d ed. 1992) (requiring treatment); Johnson v. Sullivan, No. CIV-85-2434-A (W.D. Okla., filed Oct. 3, 1985) (not requiring treatment); In re Infant Doe, No. GU 8204-004A (Cir. Ct. Monroe County, Ind. Apr. 12, 1982), cert. denied sub nom. State ex rel Infant Doe v. Bloomington Hosp., 464 U.S. 961 (1983) (not requiring treatment). 60One could vary this argument so as to allow discretion in the case of the very premature baby-the category where many doctors today think preservation of parentalmedical discretion is most necessary. See supra note 37. Birth prior to the third trimesteror with a birth weight under 500 grams, perhaps-could presumptively allow for discretion. A plausible argument could be made that if a state adopted such a definition of life, it would not thereby discriminate unfairly by treating such newborns (who should still be fetuses, and if they were, would be abortable under current law) differently from other newborns. The argument would be that later-born (or bigger) newborns are not similarly situated and hence need not be similarly treated. While doubtless there are flaws one could find in such a suggestion, it does have the advantage of creating a fairly clear cutoff on the issue of which babies are covered. 61Not only does the equal protection approach avoid the necessity of deciding the moment at which life begins, it also avoids the issue of exactly what level of treatment due process requires and what will be characterized as extraordinary or heroic measures. See supra note 6. 62 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985). JUDITH AREEN, FAMILY LAW: CASES AND MATERIALS

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retardation is not a suspect or even quasi-suspect classification and that therefore classifications disfavorable to persons who have mental retardation do not deserve heightened scrutiny by reviewing courts. 63 The Court reasoned: Those who have mental retardation are immutably different in relevant respects, and the states' interest in dealing with and providing for them is legitimate; national and state lawmakers have been addressing their difficulties in a way that belies both continuing antipathy or prejudice and a corresponding need for more intrusive judicial oversight; and this legislative response negates any claim that persons with retardation are politically powerless. 64 As Justice Marshall observed in a separate opinion, the last two points would also exclude even racial classifications from heightened scrutiny because of the passage of civil rights legislation. 65 Even though the Court in Cleburne purported to require only a rational basis to sustain a regulation discriminating on the basis of retardation, it actually exercised more scrutiny than rational basis review would require. 6 The case involved a challenge to a Texas zoning ordinance requiring special permits for "homes for the feebleminded" but not for most other group homes. 67 The City had denied a permit for a particular group home for persons with retardation, largely because of negative attitudes and fears of prospective neighbors.6 The Court held that it was unconstitutional thus to apply the ordinance, saying that governmental regulation cannot stand if it is based upon "an irrational prejudice against the mentally retarded." 69 According to the Court, "mere negative attitudes or fear, unsubstantiated by factors which are properly cognizable.... are not permissible bases for treating ...

the

6 Id. at 442. The Court's formulation is that "suspect classifications" deserve "strict scrutiny" and "quasi-suspect classifications" deserve "intermediate scrutiny." When either group status or a fundamental right bestows strict scrutiny, it falls upon the state to show a compelling interest in support of a challenged regulation and to show that the legislation is the least restrictive alternative available to safeguard that interest. Morris H. Kramer v. Union Free Sch. Dist., 395 U.S. 621, 633 (1969); B.T. Shelton v. Everett Tucker, 364 U.S. 479, 488 (1960). When a group earns only intermediate scrutiny (examples are women and "illegitimates"), some lesser demonstration of necessity is required of the state. There need not be a perfect fit between the group governed by the legislation and the state purpose, but only a substantial relationship. Miss. Univ. for Women v. Joe Hogan, 458 U.S. 718, 723-25 (1982); Curtis Craig v. David Boren, 429 U.S. 190, 197 (1976). Exactly how close this intermediate scrutiny is to strict scrutiny is not established.

" Cleburne, 473 U.S. at 442-45.

"Id. at 467 (Marshall, J., concurring in the judgment in part and dissenting in part). 6Cf. William M. Ferguson v. Skrupa, 372 U.S. 726 (1963) (exercising very minimal rational basis review). 67 Cleburne, 473

63 Id. at 437.

69Id. at 450.

U.S. at 436-37.

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choose nontreatment in situations like the Bloomington Baby Doe case. 14 In a country where the government gives limited assistance to persons with handicaps and their families, and where such persons and their families are to some extent social pariahs, it is easy to sympathize with the parents' distress. Moreover, the medical and other costs involved in raising a child with mental retardation can be considerable and often last throughout the child's life. Since these costs are borne in part by institutions such as insurance companies, Medicaid, and the educational system, they are seen as an imposition on society, as well as upon the child's family. But the difficulties with accepting a parental right to choose in this situation remain. First, there is the theoretical difficulty. The impetus for allowing parental choice in the Baby Doe situation is very similar to the impetus in the abortion cases and concerns in large part the parents' ability to exercise some control over important developments in their own lives. But it is hard to explain how the abortion rationale for deferring to their choice could possibly apply. Even if the right to choose is accepted with respect to abortion on the ground that the parents'-or the woman's-interests are paramount, a significant part of the rationale is that the state cannot protect fetal life as human life, at least before some stage of its development. Whatever stage is selected for abortion, it seems clear that a newborn is alive in every sense. One rationale of most due process "right to choose" or "right of privacy" decisions is that the adult's choice that the government wishes to regulate does not cause tangible harm to other living persons. 5 This rationale does not work at all in cases involving nontreatment of newborn babies. Recognizing the difficulty of openly placing the parents' interests ahead of the child's, proponents of parental or parental-medical discretion over newborns with handicaps do not rely on the reproductive choice cases. Instead, they attempt to support parental discretion as euthanasia, mercy killing, or the "right to die." They do not claim that parents have a protectable right so much as babies do. The decision the parents would make becomes a decision made "for the child" and "in 14 See, e.g., Phoebe A. Haddon, Baby Doe Cases: Compromise and Moral Dilemma, 34 EMORY L.J. 545, 546 (1985).

1-See, e.g., Robert Eli Stanley v. Georgia, 394 U.S. 557 (1969) (holding possession of obscenity in the privacy of one's home constitutionally protected); Estelle T. Griswold v. Connecticut, 381 U.S. 479 (1965) (holding unconstitutional state's ban on use of birth control). But see Michael J. Bowers v. Michael Hardwick, 478 U.S. 186 (1986) (rejecting the view that only tangible harm can be prohibited by government and allowing criminalization of consensual sodomy practiced by adult homosexuals in the privacy of their home).

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and prejudice. 75 Indeed the Court in Bowers allowed public prejudice against gay people---'the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable"-to form the rational basis upon which the legislation rested. 76 The difference in the Court's treatment of persons with retardation in Cleburne and persons who are lesbian or gay in Bowers is striking in these two opinions written only a year apart by the same Justice (Byron White). The comparison suggests that persons with retardation acquired "intermediate scrutiny" by another name. 77 Moreover, the scrutiny in Cleburne was much greater than that typically given in cases involving economic rights, where "mere" rational basis review is the norm, financial considerations are sufficient to justify a law, and almost all chal78 lenged regulations are upheld. Cleburne suggests that more justification would be required of state discriminations against newborns with handicaps than a mere rational basis or a financial saving to the state. A statute that actively promotes the nontreatment of newborns should therefore violate the Equal Protection Clause, even though the Court has never passed upon the issue. One reason the issue does not often arise today is that nontreatment of newborns is an under-the-table practice. The practice involves nonenforcement of the criminal law against those who deny treatment or otherwise cut off their newborn's life because of handicap. The practice involves hospital officials and physicians not objecting to nontreatment

75Id. at 191. Indeed the Court in Bowers not only tolerated the discrimination against gay people but itself created it. The legislation at issue prohibited sodomy for everyoneheterosexual and homosexual-but the Court limited its decision to the legitimacy of a ban on homosexual sodomy. Id. at 83 & n.1. The Court thereby avoided having to decide whether heterosexual couples-including legally married couples-could be punished for sodomy under the Due Process Clause, and avoided initiating a Supreme Court jurisprudence regulating exactly what married couples could do in bed. But in sidestepping that issue, it necessarily decided that it was legitimate to draw legislative distinctions on the basis of sexual orientation. While its decision purports to rest on a due process basissodomy between homosexuals is not protected by the Due Process Clause-in fact its equal protection holding, that it is legitimate to punish homosexual sodomy and not heterosexual sodomy, is equally important and suggests that discrimination against homosexuals will receive very minimal judicial scrutiny. 76 Id. at 196. 77See CIVIL RIGHTS COMMISSION, supra note 3, at 96 ("T]he standard actually applied in Cleburne is quite similar to that applied in gender cases: it explicitly requires lower courts to focus on the real reasons behind the challenged unequal treatment and to analyze whether the discriminatory policy is actually related to a legitimate government purpose."). 78 See New Orleans v. Dukes, 427 U.S. 297 (1976); Ferguson v. Skrupa, 372 U.S. 726 (1963); Mac Q. Williamson v. Lee Optical, 348 U.S. 483 (1955); Ry. Express Agency, Inc. v. New York, 336 U.S. 106 (1949).

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decisions in the ways they would if the infant were "normal" and treatment were denied. The difficulty with a federal constitutional argument is not therefore a difficulty in finding discrimination but instead a difficulty in finding the requisite state action. Or if the state's selective nonenforcement of the criminal or civil law constitutes discrimination by the government, then the problem can be conceptualized as the absence of standing in any plaintiff.79 But even if in some cases of discrimination the requisite state action is difficult to find, state action doctrines cannot possibly preclude judicial review of the nontreatment issue. Some cases come to court-for example, when hospitals or individual physicians do object to some parents' nontreatment decisions and seek permission to treat. In the course of opinions, courts contribute to the development of the law concerning nontreatment of handicap; their decisions become part of state law and can be unconstitutional just as state statutes can be. 0 If a particular state's law tells persons that they are permitted to eradicate their children who have handicaps more readily than their other children, the law is unconstitutional, regardless of the source of the state law, and should be subject to challenge. And if infants are being killed, surely someone should have standing to object to an unconstitutional state law that promotes the action, if only by representing the interests of the child whose parents are not protecting him. That would have to 81 be true regardless of how one felt about the outcome on the merits. One way in which the proper plaintiff could bring the action is as a section 1983 challenge to a state law discriminating against handicap, seeking at least a declaratory judgment concerning the law's 82 constitutionality. 79See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1972) (refusing standing to a mother objecting to nonenforcement of child support laws against her child's father and stating

that "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another"). 1- One example, of course, is the Bloomington Baby Doe case. Another is Johnson v. Sullivan, No. CIV-85-2434-A (W.D. Okla., filed Oct. 3, 1985). There the court held that it did not violate due process for infants born with spina bifida to be denied necessary

medical care. Instead the defendant state hospital had decided to allow twenty-four such infants to die. The court said a hearing in which the infants were represented was unnecessary, because the parents had consented to nontreatment. BONNIE TUCKER & BRUCE GOLDSTEIN, LEGAL RIGHTS OF PERSONS WITH DISABILITIES: AN ANALYSIS OF FEDERAL LAW 19:9-19:10 (1991).

"IOtherwise the situation would be, in the words of Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911), one "capable of repetition, yet

evading review." It also would be one in which nobody could represent the position of the child who is being killed. 8 42 U.S.C. § 1983 (1988).

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B. FederalStatutes The exact limits of federal constitutional law are not yet articulated, however, and may in the end not be relevant to the outcome; federal statutory provisions governing discrimination against handicap have taken over the function of protecting persons with handicaps by granting broader protection against discrimination than is afforded by constitutional law. Federal protections include section 504 of the Rehabilitation Act, 83 the Americans with Disabilities Act (the "ADA"), 84 and the Child Abuse Amendments of 1984.85 Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with handicaps ...shall, solely by reason of her or his handicap ...

be subjected to discrimination under any program or

activity receiving Federal financial assistance. '86 The Americans with Disabilities Act broadens the promise of nondiscrimination by extending protection to employment, public services, and privately operated public accomodations and services. 87 The Child Abuse Amendments of 1984 require states receiving funds under the Child Abuse Prevention and Treatment Act to have procedures to respond to reports of medical neglect. 88 They also require maximal medical treatment of disabled newborns except in narrow circumstances, 89 and they require feeding inall cases. Persons with disabilities and others have looked to the Rehabilitation Act as "a significant first step toward a national policy of nondiscrimination against handicapped persons and a valuable consciousness-raising tool, symbol, or ideological statement." 90 The ADA is potentially the most far-reaching of the statutes. It has been described as a "policy statement to the world: We are not going to exclude disabled people anymore." 9' Some have predicted that the ADA will make discrimination on the basis of disability as significant an issue as discrimination

3 29

U.S.C. § 794 (1988).

8142 U.S.C.A. §§ 12101-12213 (West Supp. 1992). 5 42 U.S.C.A. §§ 5101-5103 (West Supp. 1992).

29 U.S.C. § 794(a) (1988). 42 U.S.C.A. §§ 12101-12213 (West Supp. 1992). 8 42 U.S.C.A. §§ 5101-5103 (West Supp. 1992).

89The circumstances are when the child is "chronically and irreversibly comatose" or

when treatment would be futile. 42 U.S.C.A. § 5102(3) (West Supp. 1992). 90Bonnie P. Tucker, Section 504 oftthe RehabilitationAct After Ten Years of Enforcement: The Past and the Future, 1989 U. ILL. L. REV. 845, 847.

91Bonnie P. Tucker, The Americans with DisabilitiesAct: An Overview, 1989 U. ILL. L. REv. 923, 924 (quoting Evan Kemp, Jr., then Chairman of the Equal Employment Opportunity Commission).

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on the basis of race or sex.92 Therefore, even if under the Constitution handicap were not entitled to any heightened scrutiny, federal statutory law appears itself to confer equivalent protection. The Child Abuse Amendments might appear effectively to prohibit nontreatment, but Child Protective Services in each state are relied upon for enforcement and in many cases have not fulfilled their responsibilities. 93 Applying the other statutes in the context of nontreatment of newborns with handicaps, section 504 of the Rehabilitation Act allows plaintiffs relief from discrimination by hospitals and others who have received federal funds. 94 The ADA also clearly prohibits discrimination on the part of hospitals, 95 and accordingly, like the other statutes, is broader than the Constitution. Moreover, like the Child Abuse Amendments, the ADA expressly applies even to discriminatory nonaction. It prohibits a privately owned public accomodation from discriminating 91Id. at 939. Moreover, Congress in enacting the ADA took the position that the same

rights and remedies for discrimination should be available to persons with disabilities as are available to members of other minorities. See, e.g., 136 CONG. REC. H2611-23 (daily ed. May 22, 1990) (Senate discussion, vote, and rejection of the Sensebrenner Amendment to the ADA, which would have excluded persons with disabilities from the benefits of the proposed Civil Rights Act of 1990, the predecessor to the Civil Rights Act of 1991). 91Child Protective Services have shown a tendency to defer to hospitals and their medical ethics committees, thus eviscerating a statutory scheme designed to oversee medical decisionmakers. They may also be unsympathetic to the treatment principles the Amendments embody or feel that funds are put to better use preventing abuse of older children. See CIVIL RIGHTS COMMISSION, supra note 3, at 111-17. 94In a nonbinding plurality opinion, the Supreme Court held that "[h]andicapped infants are entitled to 'meaningful access' to medical service provided by hospitals, and ... a hospital rule or state policy denying or limiting such access would be subject to challenge under Section 504." Bowen v. Am. Hosp. Ass'n, 476 U.S. 610, 624 (1986). But the Court added that, on the limited administrative record before it, "[a] hospital's withholding of treatment when no parental consent has been given cannot violate Section 504, for without the consent of the parents or a surrogate decisionmaker the infant is neither 'otherwise qualified' for treatment nor has he been denied care 'solely by reason of his handicap."' Id. at 630. The Court also stymied federal efforts to end discrimination against newborns with handicaps by enjoining the federal government from directly investigating or regulating it under § 504. And, in many states, private individuals lack standing to object to a newborn's nontreatment. CIVIL RIGHTS COMMISSION, supra note 3, at 111. Subsequent to Bowen, the Civil Rights Commission reviewed the history of § 504 and its judicial treatment, and it compiled evidence of the interrelationship between parents and physicians in treatment decisionmaking (evidence that was absent in the Bowen case). Based on this evidence, the Commission concluded that a recipient of federal financial assistance who is substantially involved in a nonrecipient's discriminatory decision not to treat should be held in violation of § 504. CIVIL RIGHTS COMMISSION, supra note 3, at 77-78. 91Plaintiffs can redress discrimination by any "public entity," including any "state or local government" and "any department, agency ... or other instrumentality of a state or... local government," 42 U.S.C.A. §§ 12132; 12131(l)(A),(B) (West Supp. 1992), and by any privately operated public accommodation, including a "professional office of a health care provider, hospital, or other service establishment" the operations of which affect commerce, 42 U.S.C.A. §§ 12182(a); 12181(1), (7)(F).

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against clients or customers with disabilities by way of a denial of opportunity, unequal treatment, or different or separate treatment. 96 In short, when cases of discrimination against newborns because of handicaps are justiciable, such discrimination should be found illegal-violating federal statutory and constitutional principles. C. The NondiscriminationPrinciple What would be the consequences of holding that giving parents special discretion applicable only to children with handicaps is prohibited discrimination? First, if a government were to allow killing of newborns up to three days old because the parents were distressed, the discretion should extend to parents of nonhandicapped children as well as children with disabilities. But, in fact, today no right of infanticide is recognized for parents of nonhandicapped newborns; they are prosecuted if they kill their newborn child. If they were to decide against necessary medical treatment, doctors or the hospital would go to court and get an order to treat over their objection. 97 On the other hand, if parents' freedom to choose extended only to the freedom to protect themselves with contraception, then abortion for handicap could be prevented as well-indeed, it would have to be. For purposes of this argument I take no position on what is the moment at which parental discretion should begin or end, saying simply that whatever the line is for the nonhandicapped, that same line must apply to "the handicapped" as well. In an Appendix, I have attached a list of different moments in the developmental process that might be adopted as the cut-off for parental discretion, ranging from the time of conception (meaning no access to abortion) until after the "child" reaches adulthood. Of course, I am not suggesting that all would be appropriate in my opinion, although even the most extreme positions have their advocates. After Webster v. Reproductive Health Services,98 96 42 U.S.C.A. § 12182(B)(1)(A)(I), (III), (IV). See 42 U.S.C.A.

§ 12182(B)(2)(A)(I),

(II). 9' WEIR, supra note 3, at 24 (citing examples of parents prosecuted for infanticide). On occasion, similar constraints are placed on parents of children with handicaps as well. See MAHNKE, supra note 3, at 228 (relating a case of parents charged with child abuse after they refused further treatment for their handicapped newborn and brought him home from the hospital). See generally PEGGY STINSON & ROBERT STINSON, THE LoNG DYING OF BABY ANDREW (1983) (chronicling the life of their prematurely born child forced to live in an infant intensive care unit); Ruth Hubbard, Caringfor Baby Doe, Ms., May 1984, at 85-88 (describing Department of Health and Human Services actions that preempt parental decisions for handicapped newborns). " William L. Webster v. Reproductive Health Services, 492 U.S. 490 (1989).

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two states and the Territory of Guam passed statutes prohibiting all abortion from the moment of conception, except under very limited circumstances.99 At the other extreme are those cases, like the infamous Phillip Becker case,' 0° in which parents have tried to exercise their discretion to cut off life (when the child is handicapped) even when the child is a twelve-year-old and most certainly does not satisfy usual criteria for the right to die. If the nondiscrimination principle is used to resolve the Baby Doe debate, as I think it should be, it is worth noting that it resolves the two major problems in administering a Baby Doe rule-which newborns will be covered, and how long the right will last. It is no longer necessary to identify a special vulnerable category, because all newborns will be given life on the same basis. And requiring that handicapped newborns be treated like a group more like the legislators and like the majoritythe nonhandicapped-provides some safeguard against the right being extended for too long a period of time. Predictably it would be the rare jurisdiction that would move to enact parental discretion after birth, when that discretion applied to newborns without disabilities as well as to those with them. The equal protection/antidiscrimination approach often serves this function of assuring fairer treatment of vulnerable or unpopular groups. 10'

IV. CONSEQUENCES FOR ABORTION

A. DivergentLegal Approaches to ParentalDiscretion in Abortion and Baby Doe Contexts There are different ways in which the controversy concerning the newborn Baby Doe might interconnect with the abortion debate. At the 99LOUISIANA REV. STAT. ANN. § 14:87 (1991); UTAH CODE ANN. GUAM CODE ANN. § 31.20-.23 (1990). 100See supra note 101See, e.g., Yick

§ 76-7-301 (1991); 9

40 and accompanying text. Wo v. Hopkins, 118 U.S. 356 (1886) (finding administration of facially neutral ordinance so as to discriminate against Chinese-Americans violates equal protection). According to Justice Scalia in his concurring opinion in Cruzan v. Director, Mo. Department of Health, "Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me." 497 U.S. 261, 300 (1990) (Scalia, J., concurring). Justice Jackson voiced the same sentiment: "[Tihere is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally." Ry. Express Agency, Inc. v. New York, 336 U.S. 106, 112 (1949) (Jackson, J., concurring).

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outset I discussed the parallels between the issues that are raised in the Baby Doe and abortion contexts, suggesting that although the same questions are raised in both contexts, quite different answers may be appropriate. I maintained that the Baby Doe and abortion debates should be viewed as quite independent of each other and that it is consistent both to limit parental discretion over newborns and to support choice over abortion. Law could, however-certainly as a matter of logic-take the same approach to both issues of parental discretion. In this part, I want to show that it has not done so. For the moment at least, lawmakers are approaching the two issues in fundamentally different ways. Today there are many uncertainties both in laws concerning abortion and concerning newborns. Nonetheless law clearly views quite differently individual discretion over abortion and discretion over treatment of newborns, albeit newborns with handicaps. Although the law's resolution of either problem is not yet set, different possibilities are being considered in each context. With respect to each of the issues, the Constitution could be interpreted to require government to allow discretion, to require government to forbid discretion, or to be neutral on the subject, allowing legislatures to regulate as they wish. But in the abortion context the debate has focused on whether the Constitution requires states to allow discretion or whether it is neutral. In the Baby Doe context, in contrast, the debate has focused on whether the Constitution forbids state recognition of parental discretion or whether it is neutral. Current thinking thus accepts a fundamental distinction in treatment between parental discretion in the abortion and Baby Doe contexts. 1. Abortion Law Today The prevalent question in the context of abortion is twofold: whether states are required to honor parental choice and, if so, to what extent. It is settled law that the parental right, in the abortion context, belongs to the woman who is pregnant and does not extend to her partner if his wishes conflict with hers. 102 There is broad agreement that the right to choose abortion is constitutionally required, at least to some extent. This agreement is shared by all members of the Supreme Court; that was true in Roe v. Wade'03 102See Planned Parenthood v. Casey, 112 S. Ct. 2791, 2830 (1992); Planned Parenthood v. Danforth, 428 U.S. 52, 69 (1976). 103410 U.S. 113 (1973). All Supreme Court Justices since Roe have agreed that abortion must be available to save the life of the mother. See, e.g., Mary Doe v. Arthur K. Bolton,

410 U.S. 179, 222 (1973) (White, J. and Rehnquist, J., dissenting).

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and all the cases that followed, and it still remains true after Planned Parenthoodv. Casey.10 But sharp disagreement occurs about the extent: Does the requirement extend only to medically necessitated abortions,105 or does a woman have a full right to choose abortion, for her own reasons? And if she has a right to choose, how long does it last? Roe and its progeny gave women such a right of abortion on demand for the first two trimesters of pregnancy-if they could pay for it. 106 At least, women had a right for abortion during that two-trimester period not to be criminal conduct. That right remains the law nationally, at least in theory, with the qualification that Casey modified Roe by making clear that viability, rather than the end of the second trimester of pregnancy, marked the end limit of federal constitutional rights to choose 07 nontherapeutic abortion.1 Many disagree with the particular lines the Supreme Court has drawn. Some would extend the time abortion is available until birth. At the other extreme, some would cut it back as far as the time of conception except for abortions to save the life of the mother. And there are many points along the spectrum, some of which have very articulate advocates. In addition to the duration of the abortion right, an important issue has been how much the state can regulate or burden it. On this issue, the Casey majority suggested a significant change of course, and the verdict is not yet in on the extent of its cutback of Roe. Casey allows states to burden access even to pre-viability abortion in ways that had not been countenanced for two decades after Roe. Under Roe, state regulations that were significantly more stringent for abortion than for other equally dangerous operations were presumed to discriminate against abortion. 08 They were presumed to reflect an anti-abortion animus that the Supreme Court considered illegitimate. 0 9 It is also M04 112 S. Ct. 2791 (1992).

101 Specifically,

when the life or health of the mother is at risk. See, e.g., a proposed

constitutional amendment introduced in the U.S. House of Representatives, H.R.J. Res. 124, 102d Cong., 1st Sgss. (1991); see also 9 GUAM CODE ANN. SEC. 31.20-.23 (1990). 106See Patricia R. Harris v. Cora McRae, 448 U.S. 297 (1980) (holding that a state that participates in Medicaid is not obligated to fund even medically necessary abortions); Edward W. Maher v. Susan Roe, 432 U.S. 464 (1977) (holding that the Constitution does not require states that participate in Medicaid to pay for elective abortions for indigent women even though they fund most other medical procedures, including childbirth); Irving Rust v. Louis Sullivan, II S. Ct. 1759 (1991) (holding that regulations that prohibit Title X projects from engaging in abortion counseling, referral and activities advocating abortion as a method of family planning are both permissible constructions of that statute and do not violate the First Amendment). 107Casey,

112 S. Ct. at 2816, 2818.

108Roe v. Wade, 410 U.S. at 149-50. 109See Doe v. Bolton, 410 U.S. 179,

199 (1973) (rejecting procedural requirements imposed on abortions but not other medical procedures). There was always a tension

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worth noting that the comparative dangerousness of the operation was judged by its effect on the mother's health and not on the fetus's, to which it is obviously devastating. 10 One holding of Roe was that the state had no compelling interest in legislating to preserve the life of the fetus until after fetal viability.' In Casey, the Court revised that approach, suggesting that it was legitimite for government to act to undermine abortion, so long as it did not prohibit pre-viability abortion or "unduly burden" the woman's ability to choose it. 112 Moreover it held for the first time that from the beginning of pregnancy the state has a "legitimate" interest in preserving fetal life. 3 But the extent of the change of course is not clear, because at the same time the Court said that if the state's regulation had either the purpose or the effect of unduly burdening the woman's right to 4 choose pre-viability abortion, it could still be unconstitutional." Assuming that Casey is not soon overturned, whether its change is momentous depends on how the Court in future cases resolves the open issues. Most noticeably, the Court did not reveal how it would decide what was or was not an undue burden or how strict a standard of proof it would require in order to find purpose or effect. Nor did the Court share its calculus in concluding that the state's interest in the fetus, though "profound,"" 5 could not outweigh the woman's right not to be unduly burdened in the exercise of her right to choose. The specific regulations upheld in the Pennsylvania statute involved in Casey and rejected earlier were a mandatory, anti-abortion lecture as a prerequisite to "informed consent,"11 6 a twenty-four-hour waiting period between the lecture and any abortion," 7 and comprehensive reporting requirements." 8 between these cases and the Spending Clause cases, which suggested it was legitimate for the government to act to undermine abortion, so long as it did not prohibit abortion. See Harris, 448 U.S. 279, 316-18; Maher, 432 U.S. 464, 473-75. The Court reaffirmed the Harris-Maherapproach in Casey and applied it to state regulation of abortion. Casey, 112 S. Ct. at 2821. 110Roe, 410 U.S. at 149-50. MId. at 163-64. 112 Casey, 112 S. Ct. at 2821. 113

Id. at 2808.

14 Id. at 2821. 115Id.

116 See Akron v. Akron Ctr. for Reproductive Health, 462 U.S. 416, 444 (1983) (striking down provisions of an Ohio law requiring a similar lecture to constitute "informed consent"); Richard Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 762 (1986) (rejecting a similar Pennsylvania "informed consent" requirement). The Casey Court specifically overruled Akron and Thornburgh on this point. Casey, 112 S. Ct. at 2873. 117 Akron, 462 U.S. at 450 (holding 24-hour waiting period unconstitutional); Casey, 112 S. Ct. at 2825. 118Thornburgh, 476 U.S. at 767 (striking down reporting requirements similar to those at issue in Casey); Casey, 112 S. Ct. at 2872.

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These are important unsettled issues concerning the extent of the right to abortion in United States law today. But it is clear that in any event the argument concerns how pervasive the right must be, and not whether any right exists. All Supreme Court opinions, including dissents, have consistently maintained that abortion must be available to save the life of the mother, for example, even though that places her life above that of the fetus.11 9 The Court's position is clearly not that the Constitution is neutral with respect to abortion. And ever since Roe, when the Supreme Court rejected the theory that the embryo-fetus is protected life from the moment of conception, the Court has not seriously dealt with arguments that the U.S. Constitution actually forbids abortion. 2. The Contrast with Baby Doe In cases involving newborns with disabilities, on the other hand, the issue has been whether federal law forbids such a "right to choose" even when the state has opted to allow it. The counterpart argument in the abortion context would be that the Federal Constitution forbids abortion. One way to support that position would be to find the fetus a "person" within the meaning of the Fourteenth Amendment and to place upon states an obligation to protect fetal life on the same basis as born life.120 That position would truly result in no nontherapeutic abortion being legal in this country. The doctrinal underpinnings for this fetal rights view were rejected by the Supreme Court in Roe, without dissent, and the true right-to-life approach has not surfaced in U.S. Supreme Court opinions since. 121 Instead most anti-abortion advocates in recent years have argued only for neutrality-that states should be able to do as they want on the subject of nontherapeutic abortion. Their argument for federal consti119See Doe v. Bolton 410 U.S. 179, 222 (1973) (White, J. and Rehnquist, J., dissenting). 120For example, some of the amici briefs in Webster argued for a fetal right to life. See, e.g., Brief of the Knights of Columbus as Amicus Curiae in Support of Appellants, Webster v. Reproductive Health Services, 492 U.S. 490 (1989) (No. 88-605) reprinted in 183 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES: CONSTITUTIONAL LAW 1988 TERM SUPPLEMENT (Gerhard Casper & Philip B. Karland eds., 1990) 645-60 [hereinafter LANDMARK BRIEFS]. Other anti-abortion briefs argued only for federal constitutional neutrality, however, and those participating in the Supreme Court oral argument in defense of the state statute argued only for neutrality. See, e.g., Brief Amicus Curiae of the National Right to Life Committee, Inc. in Support of Appellants, Webster v. Reproductive Health Services reprinted in 183 LANDMARK BRIEFS 872-81; Brief for Appellants, Webster v. Reproductive Health Services reprinted in 183 LANDMARK BRIEFS 100-02. 121At the time of Judge Thomas's confirmation, one of the more alarming aspects of his record were some statements apparently supportive of an affirmative fetal right to life. See, e.g., A Quota for Abortion Questions?, N.Y. TIMES, Sept. 15, 1991, § 4, at 16.

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tutional neutrality lost in Casey. The vote was only five to four, however, and until the 1992 presidential election many predicted that a neutrality approach to non-medically necessitated abortion would soon prevail in the U.S. Supreme Court. Even if that had transpired, some states still would have allowed abortion. Many in the right-to-life movement would be enthusiastic about the Constitution actually forbidding abortion. But the theory that the embryo-fetus is protected life from the moment of conception would wreck havoc with many laws-state tort and inheritance laws, and equal protection laws, to name but a few examples. That may be part of the reason it has never been taken seriously by many legislative or judicial lawmakers. B. DiscriminatoryAbortion Laws We saw earlier that the nonexistence of a parental right to choose in the Baby Doe context is independent of the existence of a right to choose abortion. In contrast, the principle of nondiscrimination, so helpful in resolving the Baby Doe issue, applies also in the context of abortion. Moreover, the argument is important in assessing the legitimacy of abortion laws currently in existence and still being passed today; it provides an avenue of attack on abortion legislation that has not before been adequately explored. An argument based upon discrimination against the handicapped does not dictate whether there will be any abortion right or how long any such right will last. It only maintains that the same rules must be adopted without regard to whether the child-to-be is projected to have a disability. Under this view, states could not prohibit third-trimester abortion while making an exception for disability. Nor could they make any exception for disability if they were able to and did prohibit abortion generally. When the nondiscrimination principle is applied to abortion, several standard state and federal regulations seem vulnerable. For example, some statutes permit most nontherapeutic abortion only until viability or the end of the second trimester but make an exception and allow 2 post-viability or third-trimester abortion when disability is projected. Kansas law, for example, allows third-trimester abortion only if the pregnant woman's life is threatened, or "the fetus is affected by a severe

"2See Richard G. Wilkins et al., Mediating the Polar Extremes: A Guide to PostWebster Abortion Policy, 1991 B.Y.U. L. REV. 403, 480.

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or life-threatening deformity or abnormality. 123 But such a statute is not legitimate, because, as I shall discuss, it constitutes impermissible discrimination. Similar problems were raised by other statutes enacted in response to Webster's invitation to the states again to initiate abortion regulation at all stages of pregnancy. The Utah statute, for example, prohibited all abortions except those "necessary to save the pregnant woman's life" or to "prevent grave damage" to her health; those resulting from promptly reported rape or incest "reported to a law enforcement agency prior to the abortion"; and abortions performed "to prevent the birth of a child that would be born with grave defects."' 124 Another way in which states sometimes allow abortion for handicap under current law is by calling such abortions "therapeutic."' 125 As a matter of constitutional law, "medically necessary" abortion must be available throughout pregnancy, in contrast to other "nontherapeutic" or "elective" abortions. 126 Iowa's statute, for example, includes as a "medically necessary" abortion one in which "the attending physician certifies that the fetus is physically deformed, mentally deficient, or 27 afflicted with congenital illness.' Abortion for handicap should not qualify for therapeutic abortion unless the life or health of the mother is at stake. Some try to fit abortion for handicap into that formulation, opining that the mother's psychological health will be greatly damaged if she is forced to bear a child who has serious disabilities. To the extent that this broad view of ,23 1992 KAN. SESS.

LAWS

183. A similar Tennessee law defines fetal handicap to include

"severe physical deformities or abnormalities or severe mental retardation." 1991 TENN. PUB. AcTs 509. See also MD. CODE ANN. § 20-209 (Supp. 1992), which prohibits the

state from "interferling]" with a post-viability decision to abort where the life or health of the pregnant woman is at stake, or where "the fetus is affected by genetic defect or serious deformity or abnormality." All other post-viability abortions are prohibited in Maryland. Missouri proposed, but did not pass, a bill allowing abortion for "severe fetal

deformity." 1991 Mo. H.B. 75, available in LEXIS, States library, Trck9l file. A quite different bill was introduced in the Mississippi state legislature, one designed to prohibit abortions that are "discriminatorily based on disability," 1992 Miss. H.B. 1373, available in WESTLAW, BILLS-OLD database. 124 UTAH CODE ANN. §§ 76-7-301, -302 (Supp. 1992). ,15 See Nancy K. Rhoden, Trimesters and Technology: Revamping Roe v. Wade, 95 YALE L.J. 639, 685 (1986). 26 See Roe v. Wade, 410 U.S. 113, 163-64 (1973) ("If the State is interested in protecting

fetal life after viability, it may go as far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother."); see also Planned Parenthood v. Casey, 112 S. Ct. 2791, 2804 (1992).

Even in the case of medically necessary abortion, however, the state is not required to provide funding, and that is true even if the state funds all other medical care for indigents

through its Medicaid or similar program and also will fund more expensive childbirth when no abortion is obtained. See Harris v. McRae, 448 U.S. 297 (1980). 127 1991 IOWA AcTs 267 § 103.

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therapeutic abortions is limited to abortion for handicap, it is improper, because it is based on the view that having a child with a handicap is necessarily a terrible result. Of course, the same broad view of the woman's psychological health might legitimately be applied across the board, allowing abortion to any woman made to bear a child she did not want, without regard to handicap. But sometimes when abortions for handicap are called therapeutic, it seems to be the health of the fetus-the "defect" in the fetus-that is being referred to, rather than the health of the mother. This is a misuse of the term "therapeutic abortion." Even if it were appropriate to look to the fetus's health rather than the mother's, how can an abortion possibly be therapeutic to the very fetus it eliminates? In any event, government in the United States has sometimes adopted policies facilitating abortion for handicap in circumstances in which other elective abortion has not been permitted. Sometimes it has accomplished this result directly, and sometimes it has done so by calling the abortions therapeutic. I believe that such governmental action constitutes discrimination against handicap. If my position is accepted, the outer limits of its application are not clear. Even a provision like the one adopted in Pennsylvania forbidding "abortion which is sought solely because of the sex of the unborn child,' ' 128 could be considered problematic because it does not also prohibit abortion for handicap. 2 9 But though the outer bounds of the antidiscrimination principle are not altogether clear, surely if the norm is for abortion to be prohibited but abortion for handicap is allowed, there is discrimination. Another way government programs probably violate the nondiscrimination principle is by subsidizing abortions for handicap but not others. Virginia, for example, through its state medical assistance fund, pays for abortions when "the fetus will be born with a gross and totally incapacitating physical deformity or with a gross and totally incapacitating mental deficiency.' 30 It may even be discriminatory for the state to spend money promoting amniocentesis. A recent study has found

2s18 PA. CONS. STAT. ANN. § 3204 (1983 & Supp. 1992). The provision prohibiting abortion for gender selection is part of the statute challenged in Casey, but the plaintiffs did not challenge that feature of the Pennsylvania law, and it was not reviewed by the courts. 112 S. Ct. 2791. 129Conceivably, the statute could be viewed as "affirmative action" on behalf of females. The state could argue it was entitled thus to act to prevent discrimination against one disfavored group without being forced to legislate concerning all. 130VA. CODE ANN. §§ 32.1-92.2 (Michie 1992); see also 1991 IOwA. ACTS 267 § 103 (medical assistance available for abortion if fetus is "physically deformed, mentally deficient, or afflicted with congenital illness").

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that all fifty states pay for amniocentesis through their Medicaid programs, although many do not pay for abortions for fetal handicap.' 31 The limits on a principle that government cannot promote abortion for handicap, even through its spending programs, are far from self-evident. Even if it were accepted that government cannot take any position promoting abortion because of handicap, there would be disagreement on the application of the rule. C. Some Objections to the DiscriminationArgument in the Context of Abortion But is government sponsorship of such abortions discriminatory at all? To some it may seem so obvious as not to be worth stating that encouraging abortion when handicap is projected is discriminatory. But the position is by no means generally accepted. Indeed, some take the polar opposite position, claiming that specially favorable abortion rules when handicap is projected are not only permissible but even constitutionally required. They argue, for example, that abortion for handicap must be allowed in the third trimester of pregnancy even if abortion for other reasons is not permissible at that time.1 32 Part of the reasoning is that becoming a parent of a child with these characteristics is such an important life development that government must allow choice. Whether for this reason or in order to avoid public expense, many countries' abortion laws thus provide for abortion for handicap much later in the pregnancy than they allow other nontherapeutic abortions.1 33 131A 1988 study (which predates the Iowa law) found that 13 states paid for abortion for fetal handicap. Forty-one states and the District of Columbia paid for chorionic villus. See Study Tracks Medicaid Payments for Abortions, MODERN HEALTHCARE, June 4, 1990, at 12. 32

, See Curt S. Rush, Note, Genetic Screening, Eugenic Abortion, and Roe v. Wade: How Viable Is Roe's Viability Standard?, 50 BROOK. L. REV. 113, 142 (1983) (arguing

that a state should not be permitted to prohibit eugenic abortion of a "severely defective fetus" at any stage of pregnancy). See generally Sharon E. Rush, PrenatalCaretaking: Limits of State Intervention With and Without Roe, 39 U. FLA. L. REv. 55, 73-77 (1987)

(setting forth views of third-trimester eugenic abortion advocates). 33 , See MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN

LAW 145-50

(1987). Glendon describes several such laws, including those of Finland (allowing most

elective abortion through 16 weeks and abortion of a "seriously defective fetus" through 24 weeks); France (abortion for most reasons through 10 weeks, and abortion of a fetus with "serious disease or defect" after 10 weeks); Iceland (abortion for "social reasons" prohibited after the 16th week, after which abortion is still possible if "the child is likely to be born with defects or damage"); Portugal (abortion limited to first 12 weeks, but

allowed through 16 weeks if the fetus is afflicted with "serious disease or defect"); and Spain (allowing abortion in case of rape within the first 12 weeks and abortion for "severe physical or mental [fetal] defects" within the 22nd week). Id. at 145-50.

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The Model Penal Code proposed a similar approach for this country,13 4 but its suggestions in the area of abortion were displaced in 1973 when the Supreme Court constitutionalized the issue, adopting the trimester framework in Roe. One reason that could be put forward for allowing late abortion especially for handicap is that pregnant women may not learn of their fetus's "defect" until late in pregnancy. Unless they manage to obtain amniocentesis at the earliest possible moment, they may not receive 35 the results in time to make the abortion decision before viability. Therefore unless they have access to post-viability abortion, they do not have the option to abort for this reason at all. Accordingly, government might argue it can allow women to abort for reasons of handicap during the third trimester, even if they are not allowed to abort for other reasons, which could have been pursued earlier in pregnancy. One way to frame such a law would be to allow all abortions within a specified time after learning of the facts that make abortion desirable. But such an approach applied only to disability would still be discrim-

inatory. It would have to apply also to other factors that surface late in pregnancy that make a woman desire abortion. For example, a woman whose husband died late in pregnancy, or whose boyfriend left her, or who herself became incapacitated, would also have to be afforded the option to abort. 13 6 And handicaps discovered earlier in pregnancy134The

Model Penal Code would have permitted only "justifiable abortion" when there

is a substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother or that the child would be born with grave physical or mental defect, or that the pregnancy resulted from rape, incest, or other felonious intercourse [including any intercourse with a girl under 16]. Model Penal Code § 230.3(1), (2) (1962). 135Amniocentesis is generally done 16 to 20 weeks into the pregnancy, but it takes some time to obtain the test results, so a pregnant woman who is at all late in seeking the test may not receive the results until after fetal viability. See Curt Rush, supra note 132, at 127. A newer method of genetic sampling, chorionic villus, would provide earlier results; it can be performed as early as the ninth week of pregnancy. However, recent research suggests there may be an increased risk of birth defects associated with the test. See Gina Kolata, Amid Fears About a Fetal Test, Many Are Advising Against It, N.Y. TiMEs, July 15, 1992, at C13. Accordingly, it would not be appropriate to force women to use that test as a precondition to abortion for handicap. 136 When all possible reasons for a change of heart late in pregnancy are considered, it is questionable whether it would be worthwhile to make special rules for post-viability abortions, rather than allowing abortion on demand even during that period-for reasons of handicap as well as other reasons. After all, few women who could have had abortions early in pregnancy, but did not choose to, will want abortions late in pregnancy. State policy should concentrate on making it easier and more attractive for persons to have early abortions if they want them, rather than on finding nondiscriminatory ways to state

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through chorionic villus or through other tests for disorders that are available early in preganancy' 37 -would not qualify for late abortion. But applying discrimination principles at all in the context of abortion rules arouses opposition on many grounds-especially from the "prochoice" community. The argument against discrimination is deemed to presuppose other troubling propositions. The thesis is sometimes attacked, for example, on grounds that (1) it treats the fetus as a person; (2) it suggests that it is immoral to abort for reasons of handicap; (3) it suggests that individuals cannot legally and constitutionally abort for reasons of handicap; (4) it suggests that government cannot legally work to cure handicap or disease, for the same reasons that it cannot promote abortions because of handicap or disease; and (5) it suggests that handicap is legally an altogether neutral fact, like race or gender. I do not believe, however, that acceptance of the antidiscrimination position as applied to handicap requires acceptance of any of the above 8 assertions.13 Sometimes it is asked why rules allowing abortion for handicap constitute discrimination at all against persons with handicaps. Doesn't this argument assume that the fetus is a person? 139 Does it not thereby depend on the anti-abortion position that the Court rejected in Roe and has rejected ever since? The best response is that regulation singling out the handicapped population as singularly abortable hurts the handicapped population in a cognizable and illegal way. It does not harm just the fetus that is aborted but also the existing citizenry who have handicaps. 40

an exception to a post-viability abortion ban that would nonetheless allow abortion for newly discovered handicap. 137Such tests exist for cystic fibrosis, thalassemia, phenylketonuris, and muscular dystrophy, for example. 138Another question often posed is whether rules making it especially easy to abort in cases of rape or incest are vulnerable on the same basis as rules allowing abortion for handicap. The cases seem different. Persons who have been produced by incestuous sexual relationships, or by rape, would not be considered "discrete and insular minorities" in any sense. United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). They have not traditionally been subjects of discrimination, as racial minorities and persons with handicaps have been, largely because the circumstances of their conception are not

apparent and may not be commonly known. Indeed many persons who would be members of any such class do not themselves know the circumstances of their conception. 139Finding discrimination in the abortion context is more difficult than in the newborn context because of this problem in identifying the "person" discriminated against. But it is easier in the sense that the state action problem caused by the under-the-table nature of nontreatment of newborns, see supra note 79 and accompanying text, does not exist in the abortion context, where the discriminations are explicitly written into statutes. 110One situation in which the United States Supreme Court has repeatedly recognized a similar type of discrimination against an existing citizenry is in the jury selection process. In Larry Joe Powers v. Ohio, 111 S. Ct. 1364 (1991), the Court reiterated its earlier

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Instead of this law with respect to handicap, imagine a law prohibiting abortion of caucasians after viability and simultaneously allowing thirdtrimester abortion of children of other races. Or a rule allowing abortion especially liberally when it was known that the child to be born would be a mixed-race child. St. Thomas Aquinas suggested that the soul enters male fetuses at forty days (thereby "forming" them and causing the beginning of life), while the life of a female fetus does not begin until eighty days after conception. 141 Adopting this view today, abortion law could make female fetuses abortable for twice as long as male fetuses. With today's technology, gender can be determined early in pregnancy, and such an abortion rule could be put into practice. 142 Such a law would, of course, be politically unthinkable in the United States today. It also would constitute sex discrimination. If such a rule were put into effect, it is safe to predict that existing women would be outraged that their gender was the more susceptible to extermination. They would feel devalued by the regulation; they would feel it as a slur upon them, which it would doubtless be. Parents of Down's syndrome children who value their own child's life feel the same way, as amniocentesis becomes part of the dominant culture at least for pregnant women over thirty-five and as those who do not want amniocentesis, or who do not want to abort because of mental retardation, are increasingly considered odd, or even socially irresponsible. 43 decision that "a prosecutor's discriminatory use of peremptory challenges harms [not only] the excluded jurors [but also] the community at large," (citing James Kirkland Batson v. Kentucky, 476 U.S. 79, 87 (1986)). The community at large is harmed because [t]he very fact that colored people are singled out and ... denied ... all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race ... equal

justice ....

Strauder v. West Virginia, 100 U.S. 303, 308 (1880) (striking down a state statute that allowed only white males to serve as jurors). See Appendix.

'41

142Chorionic

villus can determine gender as early as 56 days into the pregnancy. See

supra note 135.

143 The current enthusiasm for prenatal screening and abortion for eugenics reasons has created a situation where women who have "defective" children are objects of criticism. After all, a child born with an "undesirable" trait that was detectable in pregnancy is to some extent produced by choice. If the choice is viewed as a wrong one, then the child is to some extent "her fault." See Margery W. Shaw, Conditional ProspectiveRights of the Fetus, 5 J. LEGAL MED. 63 (1984) (reflecting the point of view that it is the mother's fault); see also BARBARA KATZ ROTHMAN, THE TENTATIVE PREGNANCY: PRENATAL

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And existing persons who have disabilities, whether mental or physical, are hurt in other, very tangible ways when government promotes abortion of persons with their disability. To take the example of mental retardation, persons with retardation are hurt as a group if the numbers in their group substantially diminish. At this moment in time, anyway, it seems clear that growth or at least maintenance of their numbers and the resultant increased visibility of persons with retardation would benefit members of the group as a whole. More than any other group in our society, this one has been historically segregated and set apartoften committed to institutions in which the public took little interest. Occasionally even today there are rude reminders of a public attitude of a right to be oblivious of such persons. On January 19, 1993, the New York Times reported a recent court award of damages in Flensburg, Germany, to a vacationing couple who claimed "that their holiday had 144 been ruined by the presence of handicapped guests in their hotel." One reason many people are so fearful of-even repulsed by-persons with handicaps, and so unaware of their humanity, is that they have never known such persons and have not seen them functioning in the community. The transition back into the community that started with deinstitutionalization for disabled persons has had many successes and has shown many that, when offered opportunity, disabled persons can be productive and valuable community members. 145 Their presence and visibility in the community have also caused more educational, recreational, social and vocational services to be developed for them, thus enabling them to have fuller and more productive lives. Many individuals with disabilities and groups that support them are deeply concerned that increasing attempts to eliminate persons with their disability will result in societal disregard for the lives of those who remain. 146 As prenatal testing for a particular condition becomes widespread, less is spent on cure, treatment and social services for existing persons with that condition. The same phenomenon is associated with DIAGNOSIS AND THE FUTURE OF MOTHERHOOD (1986) (commenting on the existence of this point of view); the story about Bree Walker, infra note 158 and accompanying text. 144Craig R. Whitney, DisabledGermans Fear They'll Be the Next Target, N.Y. TIMES, Jan. 19, 1993, at A3.

145See CIVIL RIGHTS COMMISSION, supra note 3, at 34-47 (finding a positive quality of life for persons with a variety of disabilities, including Down's syndrome and spina bifida); MAHNKE, supra note 3, at 46-74 (discussing press coverage of the Baby Doe case, including responses from members of the disabled community and their families in op-

position to the non-treatment of Baby Does); Lyon, supra note 12, at 113 (comparing two

women's experiences raising severely handicapped children). 146See, e.g., R.B. Zachary, Life With Spina Bifida, 2 BRIT. MED. J. 1460, 1462 (1977) (warning that increased "elimination" of spina bifida babies results in disregard for the lives of existing persons with spina bifida).

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handicap. Persons who have experience with disability, even very serious disability, are more likely to appreciate the aspects of life that can be positive nonetheless and also to appreciate what persons with handicaps have to offer.25 They also understand that persons with disabilities are "normal" in a great many ways-and indeed that "normal" people are "handicapped" in many ways. Drawing sharp and significant dis26 tinctions between the two groups is problematic. In short, one problem with recognizing a parental-medical, or a judicial, right to decide in favor of death in Baby Doe cases is that their decisions are often based upon prejudice and ignorance. Even when acting in total good faith, parents and judges will often project onto the infant their own horror of handicap. 27 It is wrong to conceptualize the Baby Doe problem as a euthanasia or right-to-die problem because many-indeed most-of the newborns who will die, from their own '28 point of view, are not "better off dead. 2 For example, on January 5, 1993, USA TODAY reported: Yvonne and Yvette McCarther, who led a life of song, study and laughter despite being joined at the head, died at age 43, in Long Beach, Calif., apparently of natural causes, a friend said. They were among the world's oldest unseparated Siamese twins. Sean McNamara, Twins Dead, USA TODAY, Jan. 5, 1993, at 3A. Persons lacking association with Siamese twins would probably not imagine that such a happy life was possible. Uninformed persons who gave birth to Siamese twins joined at the head might even think that their offspring-or at least one of the twins-was "better off dead." 26In spite of these facts, this Article plays into popular misconceptions when it uses terms like "handicap" or "disability"--even though sometimes the term "persons with unusual conditions" or "different from the majority" would be more appropriate. It also sometimes refers to "the handicapped population" or "the community of persons with disabilities" as though it were a distinct and separate entity. I regret the use of this terminology, which some quite rightly will find offensive. Yet a failure of imagination, and perhaps of common parlance, prevents the use of more accurate terms that succinctly convey the thought. 27For other criticisms of the use of substituted judgment in this context, see Carl E. Schneider, Rights Discourse and Neonatal Euthanasia,76 CAL. L. REV. 151, 165 (1988); Martha Minow, Beyond State Intervention in the Family: For Baby Jane Doe, 18 U. MICH. J.L. REF. 933, 974 (1985); Abigail Lawlis Kuzma, The Legislative Response to Infant Doe, 59 IND. L.J. 377, 381-86 (1983). 21Indeed there is no inherent reason why persons with handicaps should not be as happy as others. They do have fewer options, but as long as sufficient options are made available, the reduction of choices does not necessarily lead to unhappiness. In fact, a paramount problem of the successful executive, for example, is the very plethora of choices with the attendant difficulties of choosing between them and of properly apportioning one's time. A life with many possibilities and opportunities is as likely to result in unhappiness and self-doubt as is the life of a typical person with handicaps, if that person is raised in a loving and productive environment. One mother with a child who was born "normal" but because of staphylococcal septicaemia suffered paralysis and other problems from age six describes him as "happy just

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tional handicap discrimination, just as similar gender-based distinctions 53 and race-based distinctions would. Although I am suggesting that abortion for handicap can be harmful to persons with disabilities, I am not suggesting that individual women in today's legal environment cannot permissibly abort upon learning that their child will be born with mental retardation or other perceived handicaps. Whether a woman should abort for this reason is an issue on which there is strong difference of opinion. I am not even stating that it is immoral to abort for eugenics reasons--or that all persons in the disability community would agree that it is undesirable to do so. 54 In my own view the morality of a particular abortion depends upon a host of circumstances, many of them having to do with the particular situation and capabilities of the particular woman involved. 55 And more relevant, the whole thrust of abortion law is that it is the individual's own moral view that is relevant to the decision, and not the morality of others, even if they are the majority or have a well-reasoned position. Rather than to preach the immorality of abortion for handicap, my purpose has been to introduce the reader to a perspective-a legitimate perspective that should be contemplated and respected, even though neither it nor a contrary perspective should be mandated or endorsed by government. It is a point of view that makes abortion for reasons of handicap seem undesirable, unfair, even offensive to some, including persons not morally opposed to all abortion. 56 What it states is a moral position, not the moral position.

"I For a discussion of why this is true despite the fact that gender and race are deemed to require heightened scrutiny as a matter of constitutional law while handicap is not, see supra note 62 and accompanying text. 114Indeed, R. M. Forrester, Perspectives in Spina Bifida, 2 BR. MED. J. 1571 (1978), sets forth the reaction of a group of children with spina bifida who were shown a television program about the ethics of saving fetuses with spina bifida. Their "clear cut and unanimous" reply was that they would advise abortion for spina bifida. 15 See discussion infra part IV.D. 156Moreover, viewpoints common in the disability community are new and surprising to many others. Besides right-ta-life issues, there are also other issues on which the perspective of the community of persons with disabilities and their friends differs from that of the average person, and the public is largely unaware of the disabled community's view. One example appeared in relation to Jerry Lewis's annual Labor Day Telethon for Muscular Dystrophy. A group of former poster children for the Muscular Dystrophy Association charged that the telethon fosters an "outdated image of disabled people as pitiful and childlike" and should "convey a more realistic picture of disability as a normal part of life rather than as a tragedy;.., reduce the role of children; and ... put somewhat less emphasis on finding a cure and more emphasis on improving disabled people's lives." Susan Harrigan & Paula Yoo, Backstage Bickering Mars Lewis' "Labor Day Love-In", SEATrLE TIMES, Sept. 1, 1992, at Fl. The reaction of Evan Kemp, Jr., Chairman of the Equal Employment Opportunity Commission, who happens to have muscular dystrophy,

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The point of view I describe is not uncommon in the disabled community. One woman, for example, describes her painful realization that her aunt had undergone an abortion upon learning that the child, like the author, would be born with a handicap: "With great sadness, I realized that I lost to abortion the only cousin I would have had who was similar to me."'1 57 Others stress not so much their personal loss as the disparagement of the disabled community that such abortions entail-particularly official or public encouragement of such abortions. The issue was dramatically raised recently as the public debated whether a woman with a genetic disease should have the right to become pregnant and produce a child who might suffer from the same disease. Bree Walker, a successful and attractive television anchorwoman, has a genetic disease called ectrodactylism, which results in the absence of digits in hands and feet, or the fusing of fingers or toes. Offspring have a fifty-percent chance of inheriting the disorder. When Ms. Walker was seven months pregnant, a radio talk show host questioned the fairness of her becoming pregnant and taking the chance of passing on her disfiguring disease. 158 Ms. Walker called the show "a harassment of her unborn child and a sweeping blow to a disabled community struggling for social acceptance and civil rights."'159 Even though some persons have deeply felt beliefs that such abortions are insulting and wrong, there is no legal problem with individual women was that "[s]tereotyping, which the pity approach reinforces, leads to all kinds of discrimination ....For why should an employer hire someone who, admired public figures on the telethon tell them, is really helpless?" Id. Another telling example of a difference in perspective between the disabled community and the general public emerged when Lloyds of London offered insurance coverage against giving birth to children affected by certain disabilities. Sharon Kingman, Health: InsuringAgainst a Parent'sGreatestFear,THE INDEPENDENT, June 9, 1992, at 13. From the point of view of the "average" parent-to-be, such insurance may be beneficial protection against their "greatest fear," but the reaction of the disabled community and their supporters was not so affirmative. Lydia Sinclair, Legal Director of Mentally Handicapped Children and Adults ("MENCAP"), declared, "We would not want to associate ourselves with any scheme which implied that having a disabled child was a bad and negative event. That undervalues and devalues those born with disabilities." Anna Khan, Director of the Down's Syndrome Association, decries the scheme as "compensation for having a Down's child." According to Brian Lamb of the Spastics Society (as persons with cerebral palsy are referred to in England), "You only insure against undesirable events. This Society is about promoting the value of disabled people." Id. 157Lillibeth Navarro, People Don't Want a Child Like Me, L.A. TIMES, Sept. 4, 1991, at B7. 18 Jay Mathews, The Debate Over Her Baby, WASH. POST, Oct. 20, 1991, at Fl. '19Cerone, supra note 149, at 1. See Joanne Dlugozima & Chris Hassan, When "Tragedy" Gives a Chance to Love, NEWSDAY, Aug. 11, 1988, at 85 (in which a grandmother and mother of children with multiple handicaps express their love for these children and their sadness and anger that others assume that such children are better off dead); see also MAHNKE, supra note 3, at 46-74; Lyon, supra note 12 at 113.

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deciding today to abort because of a prognosis of fetal handicap. Today, the government leaves the choice of when and whether to abort up to the individual woman.1 60 In the United States and elsewhere, many women currently obtain amniocentesis, chorionic villus, or other tests in order to ascertain whether their baby will be born with certain disabilities. Typical tests can disclose whether the child will have Down's syndrome or spina bifida, and also what the gender will be. Many women decide to abort upon learning that their child will be born with genetic defects. 1 61 Indeed, some physicians counsel not to submit to amniocentesis unless one would abort for handicap. Women today can legally abort for this reason because they can abort for any reason; the decision whether to abort is made not by the state but is left to the woman herself. For the moment, the commitment of the decision to the discretion of the woman is protected up until the time when the fetus might be considered viable. For about five months of pregnancy, a woman has the right to choose abortion for her own reasons. If many or most women believe that abortion for handicap is desirable, then many such abortions will continue to take place, 162 and nothing stated in this Article would interfere with individuals exercising that choice. Similarly, if women believed that abortion of male fetuses was desirable, or that abortion of all pregnancies in women over thirty years of age was desirable, or if they did not want to give birth to interracial babies, then many such abortions would take place. When the choice is left to the individual woman and is not taken over by government, there is no problem of illegal discrimination. 163 ,60See discussion supra part IV.A.1. 161See Sandra Blakeslee, Genetic Discoveries Raise Painful Questions, N.Y. TIMES, Apr. 21, 1987, at Cl (outlining ethical dilemmas posed by medicine's increased ability to identify genetic characteristics); see also Curt Rush, supra note 132, at 125-30. 162It is likely in fact that many more abortions would take place because of some handicaps than others. For example, more women might decide to abort for Tay Sachs, which results in the death of the child by about age four, than for Down's syndrome, which typically involves some mental retardation but often does not interfere with a normal life span.

163With Roe and Casey as the law-leaving women free at least in theory to choose abortion up until fetal viability-government does not take a position on abortion because of handicap. Problems arise only when the state begins to pick out abortion because of handicap to sponsor; then the state is chargeable with discrimination against persons who

have handicaps. One way a state plays this sponsorship role is when it allows abortion

only for particular reasons, and handicap is one of the reasons. It also plays this role when it subsidizes abortion for handicap without subsidizing all abortion, or when it pays for amniocentesis more generally than it pays for other medical procedures. Women's choices concerning abortion need respect and protection from coercion by private actors who wield power over them, as well as from government coercion. Physicians and health maintenance organizations should not be coercive in their recommendations of procedures like amniocentesis, as they frequently are today. See, e.g., Lipp-

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I do not assert therefore that individuals cannot or necessarily should not abort because of handicap. Nor do I take the ridiculous position that government cannot attempt to prevent handicap-by encouraging physicians to guard against oxygen deprivation in the birthing process; by requiring changes in the diet that will prevent retardation in children born with phenylketonuris ("PKU"); by punishing parents for inflicting head injuries upon their children; or by moving to halt a measles epidemic, for example. And I do not take the equally absurd position that government cannot act to cure handicap where that is a possibility. True, such governmental actions if successful would decrease the size of the population that has disabilities and to that extent could harm the situation of persons with disabilities by decreasing their numberslessening their visibility and their lobbying power. With respect to Ducheenes muscular dystrophy and cystic fibrosis, for example, effective therapies are being developed through genetic research.164 The muscular dystrophy and cystic fibrosis communities appreciate and fear that existing persons may not be cared for once real cures develop. 65 But government can invest in prevention and cure even though its actions may be harmful to some. The legitimacy of such governmental actions makes it clear that government need not regard handicap or disease as neutral factors. They are traits that government can legitimately strive to eradicate, even though it is not legitimate for government to try to eradicate persons, or persons-to-be, because they possess those traits. The distinction may seem a fine one, but it is common both in our jurisprudence and in our daily life. The state may prefer individuals not to become public charges,

man, supra note 147; KATZ ROTHMAN, supra note 143. Nor should they be coercive in their promotions of abortions for handicap. Moreover, women's access to all points of view should be encouraged, in the interest of fully informing those who are to make the ultimate decision. For example, physicians should allow any group-including advocates for "the handicapped"---to make literature available in the medical office, acquainting patients with that group's perspective. See generally Anne Finger, Claiming All of Our Bodies:Reproductive Rights and Disability, in TEST TUBE WOMEN: WHAT FUTURE FOR

MOTHERHOOD? (Rita Arditti et al. eds., 1984) (arguing that women with disabled children should be available as role models for women deciding whether to parent a child with a disability); Marsha Sexton, Born and Unborn: The Implications of Reproductive Technologiesfor People with Disabilities, in TEST TUBE WOMEN, supra, at 298 (arguing that

women should be informed about disability and available resources). 164See Alice Wexler, Dangerous Diagnostics:The Social Power of Biological Information, NATION, Feb. 4, 1991, at 133. 165To date, the cystic fibrosis community has largely prevented neglect of the needs of the existing population by political organization. Interviews with Karen Rothenberg, Professor of Health Law, University of Maryland Law School (Apr. 16, 1992 and Dec.

22, 1992).

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but it is not thereby entitled to discriminate against persons who are public charges. 16 And anyone can see the difference between wishing that one's child did not have a broken leg and wishing that the child with the broken leg did not exist-or "curing" a migraine by killing the victim rather than curing it by administering appropriate medication that leaves the victim alive and headache-free.167 Groups representing persons with disabilities do not oppose either cure or prevention of the disability that leaves the person intact, despite their realization that societal neglect of persons who cannot be cured may result. But many self-respecting persons with disabilities do oppose prevention by eradication. 168 Research and other efforts either to find therapies and cures or to prevent the occurrence of disability while preserving the person who would otherwise have the disability do not raise the same problems as government programs to detect "deficiencies" through prenatal screening and then to promote abortion. In today's technology, we do not know how to eliminate some conditions without eradicating the child or fetus. These include some chromosomal conditions, such as Down's syndrome, Tay Sachs and Huntington's disease, to name just a few. Moreover, once brain damage is caused, whether in utero or afterwards, it is not reversible. Government cannot legitimately pursue "solutions" that avoid an undesired condition only by eliminating potential or actual life. Individuals have the right in our law to eliminate potential life for this reason, but government cannot without itself disparaging existing persons with that condition by suggesting an official position that life with that disability is worse than no life at all and that persons who have that disability lack value. 169 Such an extermination program is objectionable

I6 Nor could the state force the abortion of fetuses likely to become public charges, as fetuses that would be born into extreme poverty might be adjudged to be. 167Most parents also would prefer that their offspring not have handicaps, but that does not mean they would be willing to discard offspring who do have irreversible handicaps.

Some persons, however, have actually expressed a preference for offspring with condi-

tions commonly perceived to be handicaps-especially some persons with disabilities. See, e.g., Adrienne Asch, Reproductive Technology and Disability, in REPRODUCTIVE LAWS FOR THE 1990s 69, 81 (Sherrill Cohen & Nadine Taub eds., 1989) (citing Deaf

Pride, INSIGHT, Nov. 24, 1986). '6 Telephone Interview with Joan 0. Weiss, Executive Director of the Alliance of Genetic Support Groups for Individuals and Families with Genetic Disorders (Dec. 22, 1992). 169A similar distinction emerges when one considers the moral duties of the pregnant woman toward the conceptus she is carrying. Many believe that even though a woman has the right to abort during much of pregnancy, she does not have any "right"--moral or otherwise-to conduct herself in such a way as to produce a "defective" child-by excessive alcohol or drug use, for example. A decision to produce a child entails at least

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in part because the view "that disability is unmitigated disaster.., and ...we would be better off if people with disabilities did not exist" ties today's clinical genetics to the coercive genetics practiced by the Nazis.170

Government may legitimately view handicap as a condition to be avoided, because there are some genuine differences in the abilities and potentials of persons who have handicaps. At the same time, it is important not to lose sight of the fact that much of "disability" is socially constructed. If persons with disabilities are treated badly by society, they will indeed have unhappy lives. If they are not educated, they will indeed prove incapable. And if persons with disabilities are better treated by the larger society, they can have both much happier and more productive lives. An obvious illustration is the improved situation of persons with mental retardation in this country since they have been provided with education and training and permitted, even helped, to function as members of the workforce and the community. (Of course their status and abilities could be still further improved by additional services and understanding.) Another example occurred in a community on Martha's Vineyard Island, in Massachusetts, which had a great many residents with hearing impairments. Because those residents were accepted as "normal," and because everyone in the community learned sign language, persons with hearing impairments were not truly disabled.171

The illegality of government discrimination against handicap, even in the abortion context, carries its own implications. The most important may be that legislation (or court decisions) allowing abortion only for specified reasons that include handicap-or even "for good reasons" in the judgment of some government official-are unconstitutional and discriminatory.

a moral duty to exercise care so that the child will be born "normal" and healthy and will remain in good health. Such a duty clearly does not, however, encompass an obligation to abort a fetus that has an incurable or unavoidable "defect." Even if women could be held liable in a tort action for negligently causing physical damage to the child who was born-with fetal alcohol syndrome, for example-such a cause of action would not and should not extend to the woman who decides to give birth to a child who has Down's syndrome or spina bifida, even though she was fully aware of the child's condition within the permissible time for abortion. She has a right to give birth to the child regardless of the defects; law cannot presume that the child would be "better off dead." But see Shaw, supra note 143, at 93 (suggesting that the pregnant woman has a duty to avoid producing a child with a disorder and if she chooses not to abort in those circumstances, she should be held accountable to the child). 170 Ruth Hubbard, Eugenics: New Tools, Old Ideas, 13 WOMEN & HEALTH 225, 232 (1988). ,7, See NORA E. GROCE, EVERYONE HERE SPOKE SIGN LANGUAGE (1985).

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D. Abortion Only for Good Reason: The Government as Decisionmaker The argument is that allowing individuals to abort for handicap and allowing them to abort on demand go hand in hand in our legal system. A jurisdiction that wants to allow one must accept the other. Moreover, in the United States today, all states must accept both up until fetal viability, because pre-viability abortion is required to be available on demand. 172 States retain the option during the last part of pregnancy whether to accept both abortion on demand and abortion for handicap or to allow neither. In this part, I undertake to demonstrate that, at least before viability, abortion on demand is preferable social policy. Not only does current constitutional interpretation require such a policy; it also is central to the abortion right our Constitution recognizes that each adult woman be able to choose her own reasons whether to abort, without having someone else adjudicate their correctness. Indeed, it is central that she not even be made to explain her reasoning to anyone. Not all agree with this position. Indeed, most European nations allow fully elective abortion for a much shorter period than pre-viability, and thereafter they limit abortion to certain "good reasons" (usually explicitly including handicap). 173 In this country too, some have objected from the outset that abortion should not be allowed for mere whim.174 The suggestion is that the discretion should not be the woman's but the government's-even though the woman better knows her own circumstances and whether she is able to care adequately for the child that would be born. Many persons object to some reasons for selecting abortion-the "mere convenience" of the mother; her unwillingness to get fat; her preference for a child of another gender than the one she is carrying, etc. 175 But the reason it does not offend the law to allow the mother to abort for handicap is because it is permissible to abort for all these other reasons as well. Under the discrimination argument developed above, if the state allows abortion only for good reasons, it cannot constitutionally consider handicap one of those reasons. '7 Planned Parenthood v. Casey, 112 S. Ct. 2791, 2821 (1992). See infra text accompanying notes 206 and 207.

173See

supra note 133.

174See Doe v. Bolton, 410 U.S. 179, 221 (1973) (White, J., dissenting). 175The Pennsylvania statute, supra note 128, specifically prohibits abortions based on

sex selection. Other "whims" or "bad reasons" for abortion have been included in bills proposed by state legislatures, including "concern for damage to reputation" of the woman. 1991 Mo. H.B. 751 available in LEXIS, States library, Trck9l file.

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In the wake of Webster v. Reproductive Health Services, 176 many state legislatures debated, and a few enacted, new abortion regulations. The most restrictive prohibited nontherapeutic abortion "for purposes of contraception." For example, Guam's law made an exception only where there is serious risk of death or "gravely impair[ed] health" of the pregnant woman. 177 Louisiana made an exception when the life (but not the health) of the pregnant woman was threatened and also added an exception for promptly reported rape 78 and for reported incest. Utah allowed abortions on the same basis as Guam and Louisiana and also added an exception for "grave" fetal "defects.' 1 79 A few legislatures in other states as well drafted and approved restrictive abortion laws after Webster, only to have them killed by gubernatorial veto. 81 0 Such statutes adopt a reasons-only approach, and they are independently very strict, in that the reasons that make abortion permissible are very narrowly drawn. Even if the government were to become the arbiter of when abortion were permissible, the reasons for allowing abortion could be substantially broader than in the Louisiana or Utah law. Whether permissible reasons are broad or narrow, the good-reasons approach depends on an assumption that appropriate and inappropriate reasons for abortion are identifiable by lawmakers and can be categorized, and that lawmakers' views and reasoning should displace the views and reasoning of the woman whose body is at issue. Can we articulate any consensus about when abortion is and is not morally permissible-sufficient consensus that we would be comfortable with embodying that judgment in law? In his 1990 Holmes lecture at Harvard Law School,' 8' Ronald Dworkin took the position that the Supreme Court had exacerbated our differences by seeing abortion as a "rights" issue and that in fact there is deep societal consensus on abortion. He proceeded to set out our consensus as he saw it. One item of consensus

176492 U.S. 490 (1989). 1"9 GUAM CODE ANN. § 31.20-.23 (1990).

178"Promptly reported" means "within seven days" for rape, with a medical examination "within five days" in order "to determine whether [the victim] was pregnant prior to the rape." LA. REV. STAT. ANN. § 14:87 (West 1991). 179UTAH CODE ANN. §§ 76-7-301, -302 (1991). 11oSee, e.g., 1990 Idaho H.B. 625 available in LEXIS, States library, Trck9O file (allowing only "non-birth control abortion," limited to instances of rape, incest, "profound" fetal deformity and pregnancies that pose a "physical threat" to the woman); 1991 N.D. H.B. 1515 available in LEXIS, States library, Trck91 file (allowing abortion only

in the case of reported rape, incest or threat to the woman's life). Both bills were passed by the state legislature and vetoed by the governor. "8 Ronald Dworkin, The Sanctity of Human Life, Oliver Wendell Holmes Lecture, Address at Harvard Law School (Sept. 24, 1990).

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for Dworkin was that there is not just a right but even a moral duty to abort if the child would be born "deformed." The existence of this Article attests that any consensus is at least not complete; if there is such a consensus, this Article aims to change it. But even more telling than his attitude toward "deformity," was Dworkin's example of the easy case for allowing abortion: To the academic Dworkin, the easy case for allowing abortion was posed by the woman who wants an abortion so that she can finish her education. Rather than showing broad agreement, to me this example showed how individualistic our reactions are and how much the product of our own narrow experience. To many mothers, a much more compelling example than the woman who wants to go to college would be the woman who will not be able adequately to care for the children she already has if she undertakes to care for another. We each have differing moral beliefs on when it would or would not be justifiable to abort, and attempts to describe consensus only serve to prove to some of us that no consensus exists. Moreover, many of the most compelling cases for abortion may turn on facts concerning the particular individuals involved that legislators cannot be expected to have contemplated in advance. Accordingly, to list in advance in law or regulations acceptable and unacceptable reasons for abortion is not a promising approach. A state could decide still to exercise control over the abortion decision without listing predetermined reasons by setting up a procedure to determine on a case-by-case basis whether an abortion was permissible. For example, a judge or appointed decisionmaker could have the task of deciding, on the basis of all the circumstances, whether the pregnant 82 woman's argument for abortion was reasonable-or even compelling. Making the pregnant woman obtain permission to abort from a disinterested decisionmaker does, of course, place the pregnant woman in an extremely demeaning position. For some, however, that is not sufficient reason to avoid such a system; it may indeed be reason to follow it and show women that abortion does not come easily. 8 3 The Supreme 182While such a system also would be likely to discriminate according to handicap, in

that projected handicap would almost always be considered a good reason, it would be difficult to prove discriminatory intent in the creation and administration of the system

and to find it unconstitutional. See Personnel Administrator v. Helen B. Feeney, 442 U.S. 256 (1979) (indicating the difficulty of proving discriminatory intent when state law is neutral on its face); Washington v. Davis, 426 U.S. 229 (1976) (same); Geduldig v. Carolyn Aiello, 417 U.S. 484 (1974) (same). But see Yick Wo v. Hopkins, 118 U.S. 356 (1886) (holding that discriminatory application of facially neutral law violates equal protection). 183In states that require a minor to appear before a judge if she wishes to have an abortion but does not want to ask her parent(s), judges sometimes use the hearing as an opportunity to lecture the minor about abortion. Other judges routinely deny these peti-

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Court has recently said, however, that it is not constitutionally permissible for states to treat pregnant women as children. 1 4 Prior to Roe, some states followed such an all-the-circumstances, case-by-case approach to allowing nontherapeutic abortion. In practice, a silent quota system resulted--only a certain number of abortions were to be allowed, but only loose standards, depending heavily on the discretion of the decisionmaker, determined which ones. Those with experience in the system report that the women given permission to abort were largely of the same socio-economic background as the decisionmaker. In California, for example, young, usually male, medical students were the decisionmakers, rather than judges. The women who succeeded in obtaining permission to abort were those who most resembled the decisionmakers' sisters. 85 A standardless, case-by-case process has the necessary flexibility that a predetermined-reasons approach does not, but only at the cost of fairness and equality. Our experience with custody contests should teach us to avoid systems based on judicial evaluation of family matters on the basis of all-the-circumstances determinations. 186 An additional danger of allowing government to take over the abortion decision-whether by listing predetermined acceptable reasons or by conducting case-by-case hearings-is that government may use its newfound authority not only to prohibit abortion but also sometimes to require it. 187 If we allow government to direct choice, it may prove a small step from forbidding some or most abortion to government requiring abortion for some persons or in some circumstances.' 88 Certainly there are areas in which forced abortion-or forced contraceptionalready has proved tempting to government: the pregnant woman who

tions, even in the face of overwhelming evidence that the minor is mature and competent. See, e.g., In re Matter of Anonymous, 515 So. 2d 1254 (Ala. Ct. Civ. App. 1987). 84Planned Parenthoodv. Casey, 112 S. Ct. 2791, 2831 (1992) ("A State may not give to a man the kind of dominion over his wife that parents exercise over their children."). 11 Norma Wikler, Comments at the Conference on Reproductive Issues in a Post-Roe World, Columbia Law School (Nov. 15-16, 1991). 18 See, e.g., MARTHA A. FIELD, SURROGATE MOTHERHOOD: THE LEGAL AND HUMAN IssuEs 111-50 (1990); Mnookin, supra note 39, at 289-91. I" Public opinion favoring eugenic abortion can also be coercive, even in a regime of choice, but the appropriate response for the opponents of such abortions is discussion, education and debate. 183

If indeed the woman's interest in deciding whether to bear and beget a child had not been recognized as in Roe, the State might as readily restrict a woman's right to choose to carry a pregnancy to term as to terminate it, to further asserted State interests in population control, or eugenics, for example. Casey, 112 S. Ct. at 2811.

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has mental retardation, 18 9 the pregnant alcoholic or drug user, 19° the pregnant woman who is HIV-positive,' 91 to name but a few examples. Increasing discoveries of genetic explanations for traits considered desirable or undesirable only increase the potential problems. We have already experienced in the context of disability and terminal illness a somewhat similar transformation of ideas. First the notion of allowable choice to refuse treatment for oneself, or to deny treatment to an incompetent, was put forward, and with some success. 92 But sometimes the principle, seemingly allowing private choice, has been transformed into compulsory denial of treatment, over the families' objection. For example, a Minneapolis hospital demanded that the husband of Helen Wanglie, a comatose woman in her eighties, consent to the withdrawal of her life support. 193 Her husband refused, on religious

and other grounds. The hospital then filed suit, asking the court to appoint a conservator who would consent to the withdrawal of life support. 194 The court refused. Helen Wanglie died three days later of natural causes.

95

In sum, there is a range of dangers in government taking from individuals the abortion decision. The rightness or the justice of obtaining an abortion depends very much on context-a context much better known, and much more important, to the woman than to the state. The woman's needs and desires and her own moral position, and not some predetermined legislative rule or some judicial finding, should determine 196 whether she has access to abortion. Some say, however, that such arguments for individual choice miss the point, because they presuppose no moral commitment against abortion as killing. To many who oppose abortion, it is irrelevant if there are all sorts of reasons favoring abortion; it still must be foresworn because it is morally wrong. 197 That position would also oppose any 119See Carrie Buck v. Bell, 274 U.S. 200 (1927); In re Moe, 432 N.E.2d 712 (Mass.

1982); In re Sterilization of Moore, 221 S.E.2d 307 (N.C. 1976) (all involving sterilization). 190See generally Martha A. Field, Pittingthe FetusAgainst Its Mother, in I EMERGING IssuEs IN BIOMEDICAL ETHICS (Robert H. Blank & Andrea Bonnicksen eds., 1992). 191See Martha A. Field, Pregnancy and AIDS, 52 MD. L. REV. (forthcoming 1993). 192See, e.g., Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417

(Mass. 1977); In re Quinlan, 355 A.2d 647 (N.J. 1976). 191See Thomas W. Case, Dying Made Easy, NAT'L REV., Nov. 4, 1992, at 25. 194Id. 195 Id.

196It is also important that social or economic views of the medical establishment should not control women's choices. See supra note 163. 297 Proponents of a "right to life" in the abortion context are often accused of imposing a religious orthodoxy, but with some force they can deny they are doing that any more than our murder statutes do today, which do not leave parents or other actors to decide on an all-the-circumstances basis. See supra note 53.

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government requirement of abortion; it militates against abortion, all abortion, whether chosen by the individual or the government. 193 But even if individual choice concerning abortion were not constitutionally compelled, anti-abortionists with strong moral beliefs against abortion would have to compromise-just as pro-choice advocates obviously must as well. Even if right-to-life forces triumphed completely in some state legal systems, 199 those who could afford to do so would be able to go out of state-or even out of the country-and obtain abortions more freely. Some right to elective abortion would always remain for those who can afford to avail themselves of it. And indeed illegal abortion will always remain, with the result-some say-that almost as many abortions will be performed. 200 Today, elective abortion is fully available as a matter of law up until viability. But in reality the struggle over abortion policy continues, and other factors help mold the degree of choice that actually is available to women in the United States. For instance, RU 486 and other drugs that promise to give women more private control over their abortion choices may soon be more generally available in this country.20° Such a development would make state-imposed deadlines on legal abortion much less relevant. 193The position is inconsistent with the exceptions for rape and incest that exist even in some of the most restrictive statutes, like Louisiana's and Utah's, supra notes 178, 179. The issue has been hotly debated as legislators in several states considered compromises and exceptions necessary to make the bills more politically palatable. See ABC News Nightline: Louisiana Abortion Bill Struggle (ABC television broadcast, July 9, 1990) (transcript on file with the Harvard Women's Law Journal). The debate in Utah over the rape and incest exceptions was resolved in the draft bill (although not the final product) by including a sentence distinguishing rape and incest from other situations because the pregnant woman had not consented to sexual intercourse, and therefore should be excused from its consequences: "It is recognized that, in cases of rape or incest, the fact that the woman has been an unwilling participant in the reproductive process may justify the preference for her rights over those of the unborn child." See Reva Siegel, Reasoning From the Body: A HistoricalPerspective on Abortion Regulation and Questions of Equal Protection,44 STAN. L. REv. 261 (1992). (Query whether this is necessarily true for incest cases.) Many right-to-life proponents believe that such exceptions are wrong in principle, but have come to accept them as necessary if a right-to-life bill is to be enacted. 199Prior to the November 1992 election victory of President Clinton, it seemed possible, perhaps even likely, that the Supreme Court would come to allow states wholly to prohibit nontherapeutic abortion. But actual constitutional protection for the pre-viable fetus-as distinct from constitutional neutrality and letting states do as they wished-was not imminent even then. m See Cass Sunstein, Neutrality in Constitutional Law (with Special Reference to Pornography,Abortion and Surrogacy), 92 COLUM. L. REv. 1, 37-38 (1992).

201President Clinton took a first step in this direction when on January 23, 1993, he celebrated the 20th anniversary of Roe by allowing importation of RU 486 for personal use. Robin Toner, Clinton OrdersReversal of Abortion RestrictionsLeft by Reagan and

Bush, N.Y. TIMEs, Jan. 23, 1993, at 1.

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While that development would further harm the "right-to-life" cause, in the interim it has found ways to triumph even while legal abortion remains widely available in theory. Most significant, right-to-life forces have driven physicians from this type of medical practice, in part by tactics like picketing their homes. 20 2 They have also had their successes in the courts: for example, in denying government assistance to persons who themselves cannot afford abortion, 20 3 and in requiring parents usually to be notified before minors can have an abortion. 204 Right-to-life forces are now engaged in a program of designing governmental obstacles to discourage abortion-through legislation and other avenues. Such obstacles may in fact be tolerated after Casey, absent a shift in 20 5 the current composition of the Supreme Court. Even the current Court does, however, support "abortion on demand" despite its critics; it opposes and prohibits government arrogation of the power to decide when pre-viability abortion is or is not legitimate. Casey held, albeit only by a vote of five to four, that pre-viability abortions cannot be forbidden by government and that until viability the choice whether to abort belongs to the woman and not to the state. Accordingly, statutes like those of Louisiana, Guam and Utah are unconstitutional interferences with the woman's right to choose pre-viability abortion. 20 6 Even if the reasons for permissible abortion were much broader, they would still be unconstitutional: A woman must be permitted to choose to abort for her own reasons up until the time of viability; states may not constitutionally adopt the approach of prohib20 7 iting abortion but allowing exceptions. Of course, the Casey majority is an unstable one. Moreover, the O'Connor-Kennedy-Souter opinion announcing the Court's approach did indicate that the necessity that pre-viability abortion be "on de202See, e.g., Judy Mann, Terrorism at the Clinics, WASH. POST, Mar. 12, 1993, at E3

(discussing pro-life activists' terrorist tactics, including the March 10 killing of David Gunn, a physician who performed abortions). 203See Harris v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977); Rust v. Sullivan, 111 S. Ct 1759 (1991). 2 See, e.g., Francis X. Bellotti v. William Baird (Bellotti 11), 443 U.S. 622 (1979); Jane

Hodgson v. Minnesota, 497 U.S. 417 (1990).

205See Jayne Bray v., Alexandria Women's Health Clinic, 113 S. Ct. 753 (1993).

206Sojourner T. v. Edwin W. Edwards, 974 F.2d 27 (5th Cir. 1992), cert. denied, 61 U.S.L.W. 3620 (U.S. Mar. 8, 1993); Guam Society of Obstetricians and Gynecologists v. Joseph Ada, 776 F. Supp. 1422 (D. Guam 1990), aff'd, 962 F.2d 1366 (9th Cir. 1992), cert.

denied 61 U.S.L.W. 3061 (1992). Following the Casey decision, the Governor of Utah conceded that Utah's ban on abortion prior to 20 weeks is unconstitutional. Conversation with Dianne Prescott, National Abortion Rights Action League (Nov. 24, 1992). 207"Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability." PlannedParenthoodv. Casey, 112 S.Ct. 2791, 2821 (1992).

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mand" a woman's was the principal subject on which they might not have agreed with Roe if the issues had been presented to them in the first instance. It was primarily because of stare decisis that the three Justices with the swing vote felt constrained to allow the woman to provide her own reasons. 2 8 Further support for leaving reasons for abortion to individuals rather than to government comes from the illegitimacy of government encouraging abortion for handicap. Even many abortion opponents would allow choice in the event of projected handicap, but the only way for government to allow it is to allow abortion on demand. V. CONCLUSION There is no inconsistency between supporting a right to choose in the context of abortion and defending the right to life of a newborn who happens to have a disability. A newborn is unquestionably entitled to constitutional protection and should not intentionally be deprived of life when his or her life can be saved without use of extraordinary measures or experimental procedures. However, during the pre-birth period, when the child-to-be or fetus is part of the mother's body, it is not nearly as obvious that it has a right to life. The United States Supreme Court has held there cannot be a fetal right to life prior to the moment of viability. Even more convincing than the due process arguments against allowing nontreatment of newborns with handicaps are the equal protection, antidiscrimination arguments. These arguments suggest that xhatever the moment at which a right to life begins for children who do not have handicap, the same stage of development defines the right to life of children who do have handicap. This antidiscrimination approach applies not only after birth, but even before. It suggests that state and federal governments are prohibited from making rules allowing abortion for disability more broadly than other abortion, or sponsoring or en-

208

We do not need to say whether each of us, had we been Members of the Court when the valuation of the State interest came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions. The matter is not before us in the first instance, and . . . the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding. Id. at 2817.

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couraging abortion for disability in any way. Any such rules impermissibly discriminate against the existing population of persons who have disabilities. Government is not required to forbid abortion for reasons of handicap; it simply cannot pick out such abortions to promote. APPENDIX The "right to choose" and the "right to life"--at what moment in time do the two intersect? At what moment does the parent lose the ability to choose whether or not she will have offspring? The following list presents some of the various possibilities that have been defended, ranging from conception to adulthood. 1. When the parent engages in sexual intercourse. This standard reflects the view that individuals should engage in sexual intercourse only for procreative purposes. Under this standard, any form of contraception would be impermissible. This is the vision that the Connecticut legislature implemented when it enacted the statute prohibiting contraception whose constitutionality was at issue in Griswold v. Connecti210 cut.20 9 The Supreme Court held the enactment unconstitutional. 2. Time of conception. Some support this standard because at the moment of conception a unique genetic individual is formed; therefore they believe at this moment protectible life begins. A literal adherence to the time of conception standard would make impermissible even accepted forms of birth control like the IUD ("intra-uterine device"). As a matter of constitutional law, this is the time when a man loses the right to decide whether he will become a father; after conception, only the pregnant woman has control over whether to continue the pregnancy. 211 She need not even notify the other contributor to the pregnancy that pregnancy has occurred or that she has decided upon 212 abortion. 3. Implantation (fourteen days after conception). This time is the commonly accepted cut-off for maintaining "extracorporeal embryos"-embryos that have been created in a Petri dish. Sometimes such embryos continue for fourteen days because they have not been implanted in a Griswold v. Connecticut, 381 U.S. 479 (1965). 210Id. at 485. 211See Planned Parenthood v. Danforth, 428 U.S. 52, 69 (1976). 212See Planned Parenthood v. Casey, 112 S. Ct. 2791, 2830 (1992). 20

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woman's uterus but have been used for research and experimentation. 213 But after that point England, Australia and the United States have decided that such embryos cannot continue to develop and must be 21 4 terminated. There are reasons for regarding the time of implantation as the significant date. The embryo up to this point is sometimes described as a "pre-embryo," 215 more similar to organs or tissue than to anything that is alive. The pre-embryo also has much less chance for survival than an implanted embryo. Before implantation, the fertilized ovum has a few undifferentiated cells but no organ structure and no spinal column, and not even the embryonic disc out of which the spinal column will eventually emerge if implantation successfully occurs. Twinning also can take place prior to implantation but not after. If state legislatures were given a free hand to cut back on abortion, a state might try to use this time as the cut-off for abortion. The embryo would be considered life but the pre-embryo would not be. 216 Banning abortion after fourteen days would be substantially more flexible than banning it from the moment of conception. "The right to choose" could remain through "morning after pills," drugs such as Ovral or RU 486 that can act during this period to prevent the embryo from implanting in the uterus. Such drugs, if they are safe, could take the pressure off much of today's abortion controversy by making early abortion in fact a private act-an act performed at home. Forms of birth control like the IUD that operate after the moment of conception would also be legitimate under this standard. 4. The end of the first trimester. All recognize the desirability of abortions occurring during the first third of pregnancy rather than later. The Court in Roe v. Wade217 allowed more regulation of pregnancy after the first trimester but held that abortions must be allowed during the second trimester as well. The Casey Court does not differentiate as sharply on the basis of trimesters of pregnancy-allowing the state from the mo213See

Tamara L. Davis, Comment: Protecting the CryopreservedEmbryo, 57 TENN.

L. REv. 507,519-21 (1990); John A. Robertson, ExtracorporealEmbryos and the Abortion Debate, 2 J. CONTEMP. HEALTH L. & POL'Y 57, 57-59 (1985). 214See Davis supra note 213 at 515-20. 215See id. at 511. 216Such a distinction had no relevance to abortion even before Casey, 112 S. Ct. 2791 (1992), because every U.S. jurisdiction allowed abortion at least for the first 20 weeks of pregnancy. Some-Utah, Louisiana and Guam-had enacted substantially more restrictive rules, but they were held in abeyance pending the Casey decision. See supra notes 177-179. Since Casey it has been national law that states must allow abortion on demand up until fetal viability.

217410 U.S. 113 (1973).

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ment of conception to regulate to promote its "profound interest in potential life" as long as it does not "unduly burden" the pregnant 218 woman's right to elect pre-viability abortion. 5. Forty days. St. Thomas Aquinas differentiates between the "unformed" and the "formed" fetus, equating the unformed fetus to "seed, not man." The soul enters the male fetus, and it is "formed" forty days after conception; the female fetus is not formed until eighty days after 21 9 conception. 6. Eighty days. According to St. Thomas Aquinas, female life begins eighty days after conception (although male life begins forty days 220 after). 7. Sentience. Some have suggested this as the appropriate outer limit for extracorporeal embryos, and if abortion were greatly cut back, presumably a state might attempt to use this as the limit for abortion as well-allowing abortion only prior to the time when the fetus is capable of feeling pain. The line makes sense in principle; it avoids the specter of the fetus actually being made to suffer during the abortion procedure. But one problem with this standard is that there is little agreement when sentience occurs; somewhere between the sixth and the twenty-fourth week after conception is likely. 8. Quickening. At common law it was not an offense to abort before "quickening," the time of the first recognizable movement of the fetus in utero, generally identified as between sixteen and eighteen weeks after conception. There is disagreement concerning whether the abor221 tion of a "quick" fetus was a common law offense. 9. Viability. Viability was associated with the end of the second trimester in Roe, but in the twenty years since Roe the time of viability has 218Casey, 112 S. Ct. at 2820.

219 Aristotle may have been the first to promote this idea. See Aristotle, Hist. Anim. at § 7.3.583b. 220See AQUINAS, I SUMMA THEOLOGIAE 186-93 (Dominican Fathers ed. 1922). But cf. Edward Steegman, Of History and Due Process, 63 IND. L.J. 369, 379 (stating that

Aquinas would not have supported abortion). 221 VILLIAM BLACKSTONE, COMMENTARIES

*125-30.

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moved forward by about two to three weeks. 22 2 Under Casey, viability is the factor that governs the constitutionality of outlawing elective abortion: Government may not prohibit pre-viability abortion but must leave the woman free to choose it for reasons of her own. After viability, states may if they wish prohibit elective abortion but not abortion for the purpose of saving the life or protecting the health of the pregnant woman. 10. End of the second trimester. This is the line that Roe made constitutionally significant; it held that states must afford abortion to the mother who wants it up until the end of the second trimester-which the Court identified as the point when the fetus would be viable even if separated from the mother's body-but that thereafter the state is free to prohibit abortion out of a desire to protect fetal life. 11. Birth. This is the line many feminists have consistently argued for, maintaining that even Roe did not go far enough in respecting women's abortion rights and that as long as the child was a part of her body the pregnant woman had the legal authority to choose whether to reproduce. I would maintain that the best reading of (admittedly underdeveloped) current law is that the parents' right to choose ends at least at birth, and from that moment on, the newborn has a constitutionally protectable right to life. 12. Three hours after birth. In 1982, a baby was born in Bloomington, Indiana who had both a blocked esophagus and Down's sydrome. Because of his projected mental retardation, the parents of the baby decided against surgery that would make it possible for him to ingest food and against intravenous feeding, and with the hospital's cooperation, the baby was left to starve to death. A pediatrician and nurse, along with others, sought a court order to feed the infant, but the judge permitted the parents and the hospital to let Baby Doe die. 223 Like the Bloomington Baby Doe, many other newborns with actual or projected 222The deterioration of the Roe trimester system of determining viability began in Webster when the Court held that Missouri's viability testing provision that required doctors to test for fetal viability at 20 weeks was constitutional. Webster v. Reproductive Health Services, 492 U.S. 490, 513 (1989). See generally Gary Gertler, Brain Birth: A Proposalfor Defining When a Fetus Is Entitled to Human Life Status, 59 S. CAL. L.

REV. 1061 (1986) (discussing the difficulty of viability terminology, and advocating the time of "brain birth" as the period after which abortion may be proscribed); Note, Medical Technology and the Law, 103 HARV. L. Rv. 1590 (1990).

See In re Infant Doe, No. GU 8204-004A (Cir. Ct. Monroe County, Ind. Apr. 12, 1982), cert. denied sub nom. State ex rel Infant Doe v. Bloomington Hosp., 464 U.S. 961 (1983); supra notes 3-13 and accompanying text.

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at birth are not babies from those categories but babies born very prematurely 3 7 -probably those with a birth weight under 500 grams. Some of those babies may indeed suffer severe handicap and retardation-more severe than is usually associated with Down's syndrome, spina bifida, or hydrocephalus. But "preemies" also have the possibility of being unaffected, of being "normal," and which way they will develop is often not apparent until some time after birth. These facts show that it is not appropriate to limit any parental discretion that is recognized to the first few days of newborn life. Yet even proponents of parental discretion would usually favor some time limit on the decision. Parents are often told that unless they choose death in the first few days after birth, the time for their discretion will have passed.3 8When parents of older children with handicaps have tried to deny needed treatment because they wish the child to die, physicians and hospitals have objected in court, and courts have denied parents 39 discretion to choose death at this stage. The Phillip Becker case in California is one heavily publicized example. 40 Phillip was a twelve-year-old boy with Down's syndrome, and his parents, a well-to-do attorney and his wife, did not want to consent to a heart operation Phillip needed in order to have normal life expectancy. The parents (who had institutionalized Phillip since birth) argued that they did not want Phillip to outlive them and that because of the quality of life of persons with an IQ of sixty, they should not be obliged to consent to the operation. At first, the California courts declined to appoint a guardian to consent to the operation, even though the early death Phillip would suffer without it would be a slow and painful one. 4' But after much litigation, another family was granted guardianship of Phillip, over the biological parents' objection, and the power to consent 42 to treatment. 37See, e.g., Albert R. Johnson, Ethics, the Law, and the Treatment of Seriously Ill Newborns, in LEGAL AND ETHICAL ASPECTS OF TREATING CRITICALLY AND TERMINALLY

ILL PATIENTS, 236, 237-41 (A. Edward Doudera & J. Douglas Peters eds., 1982) (claiming

that legal and philosophical consideration of withholding treatment from the "defective" or seriously ill newborn have missed the mark by not focusing on prematurity, the dominant problem in the newborn nursery). m See Frontline, supra note 23.

39See, e.g., Joan Barthel, Jimmy, MCCALLS, Nov. 1985, at 110 (describing parents who were refused the option of removing life-support equipment from their severely disabled four-month-old child); see also the New Jersey story recounted in supra note 29 (involving an adult child with mental retardation). 41Guardianship of Phillip B., 188 Cal. Rptr. 781 (Cal. Ct. App. 1983); In re Phillip B., 156 Cal. Rptr. 48 (Cal. Ct. App. 1979), cert. denied, 445 U.S. 949 (1980). See generally Robert H. Mnookin, In Memory of Jay M. Spears: The Guardianshipof PhillipB., 40

STAN. L. REV. 841 (1988) (relating the very moving Phillip Becker story). 41 In re Phillip B., 156 Cal. Rptr. at 48-52. 42Guardianship of Phillip B., 188 Cal. Rptr. 781.

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19. Sixty years after birth. Etc. This listing conveys two messages: (1) Everyone believes in a right to life and in a right to choose. The difference of opinion concerns when one ends and the other begins. (2) There is no one logically compelled point. Instead the choice becomes one between differing values. Viability is the line chosen by the current Supreme Court; indeed, it is the line that has prevailed in the United States for twenty years. The values it serves are: the value of compromise; respect for the woman's bodily integrity and equality of treatment; and appreciation of the importance of reproductive choice to all aspects of women's lives. The Court's position does respect the right to life of the child-to-be by allowing states to protect the fetus on the same basis as other human beings after viability and prior to birth. In allowing states to choose whether or not to outlaw elective abortion during the third trimester, the Court serves also values of federalism. During that fifteen-week period at least, it allows states to serve as laboratories of experimentation and to make different choices from each other.