The Battle over Abortion

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decided, lay in a clause of the 14th Amendment that gives Congress the power to enforce the amendment's due process and equal protection guarantees. The high court has broadly interpreted this enforcement power before in allowing Congress to extend voting rights. In 1959, the court ruled that literacy tests do not discriminate. But Congress later decided that, in fact, they do—and banned them by law. The court went along. To Galebach, this shows that the court is willing to defer to Congress's factual determination of the scope of constitutional rights or, in the abortion issue, the fundamental question of when life begins.

Most constitutional law scholars, however, believe that Galebach is wrong and that the Helms-Hyde bill is flatly unconstitutional. Allowing Congress to define the meaning of life as it relates to the 14th Amendment, say these experts, would set a dangerous precedent. It would undermine the Judiciary's capacity to protect the rights of individuals from the whims of the majority. Even conservative scholars are upset by this attempt to get around Roe vs. Wade. Says Nixon's Solicitor General, Robert Bork, one who strongly disagrees with the Roe vs. Wade decision: "If the Human Life Statute becomes law, you've got a constitutional crisis. In the guise of gesticulating facts, it would be changing the court's constitutional role." Says Harvard Law Professor Laurence Tribe: "If Congress can do this, then there is no limit on how far it can go to destroy any right." Protests Duke Law Professor William Van Alstyne: "Nothing like it has happened in 180-plus years. It would mean the end of the Bill of Rights guarded by the Judiciary."

Galebach thinks that the scholars are overreacting. Says he: "The bill doesn't impair the Supreme Court's ability to review Congress. It's just that this time around, they'll have to take into account the legislative determination. They can decide to follow it or not, but they have to give it due respect." Responds Bork: "The court won't let Congress make a determination of what the facts are, when the facts are the crucial facts for constitutional purposes. I think the court will gather itself to strike this law down."

That outcome would hardly surprise the bill's supporters. Nor would it necessarily upset them. A negative decision by the court would only increase the frustration of the pro-lifers and build momentum toward a constitutional amendment. Moreover, the Human Life Statute, if passed by Congress, could provoke a number of state bills that will have to go through the long process of court challenges. While the lawyers argued, abortions would be temporarily outlawed in some communities. Says Helms; "This is a necessary step to have some movement on this question prior to the adoption of a constitutional amendment."

Each year since 1976, Hyde has successfully sponsored amendments, cutting off most federal funds for abortions, to appropriations bills. A Supreme Court ruling in 1980 upheld these restrictions as constitutional. New Health and Human Services Secretary Richard Schweiker, an ardent foe of abortion, has proposed eliminating federal financing even in cases of rape or incest. This would make funds available only for abortions that would save the life of the mother. Federally financed abortions