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Any such allocation of roles would operate to the serious detriment of women as a class, given the multitude of ways in which unwanted pregnancy and unwanted children burden the participation of women as equals in society. Even a woman who is not pregnant would inevitably be affected by her knowledge of the power relations thereby created. 179

Quite a different argument would be presented if the prospective father were truly to undertake the burdens of parenthood himself rather than expecting the unwilling mother to bear all or most of those burdens. In such a case, the state might wish to confer a veto over abortion on the theory that the man's right to raise his own child is important enough to justify the burdens of coerced pregnancy for the woman. Although the prospective father's claim should almost certainly be subordinated to the woman's decision to terminate her pregnancy if they are not married,180 resolution of the issue raised if the parties are already married or otherwise committed to one another in a long term relationship will be complicated by arguments as to the alternative of adopting a child, the expectations with which a state may presume that its citizens enter upon marriage, and the obligations it may attach to the marital relationship.181

fact that the real decision, so long as only an agreeable doctor is required, will be her own. No comparable assurance could be offered were the power of decision delegable by state law to the woman's parents, to her husband, or to the prospective father.

179 For a classic discussion of social roles, including the patterns of expectations and interests implicit in their structure, see R. DAHRENDORF, Homo Sociologicus: On the History, Significance, and Limits of the Category of Social Role, in ESSAYS IN THE THEORY OF SOCIETY 19, 36, 79-82 (1968). Had the Court conceived the question before it in role-allocation terms, it might not have dismissed so readily the complaints of those plaintiffs who indicated that they were presently injured by the Texas law despite their lack of current pregnancy, see 410 U.S. at 127-29, and it might at least have recognized the continuing effect on roles as a potential basis for its finding of nonmootness as to certain other plaintiffs. Id. at 125.

For an expression of skepticism about whether the Court's decisions in Roe and Doe will in fact transfer real decisionmaking power from those who now hold it, see Stone, supra note 159, at 37. But cf. R. DAHRENDORF, supra, at 48-51; Cox, The Supreme Court, 1965 Term - Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 HARV. L. REV. 91, 97 & n.41 (1966).

180 See Jones v. Smith, 278 So. 2d 339 (Fla. App. 1973) (putative potential father has no right to restrain woman from terminating first-trimester pregnancy resulting from their cohabitation notwithstanding his expressed desire to marry the woman and to assume all obligations for care and support of the unborn child). But cf. Stanley v. Illinois, 405 U.S. 645 (1972) (invalidating presumption that all unwed fathers are unfit parents).

181 Although a Canadian court has enjoined an abortion at the request of a husband, see N.Y. Times, Jan. 29, 1972, at 4, col. 4, at least two courts in the United States have ruled against the husband's veto. See Coe v. Gerstein, Civil No. 72-1842 (S.D. Fla., Aug. 9, 1973); Coe v. District of Columbia Gen. Hosp.,

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D. The Required Role of the State: Ensuring Minimal Access

Vastly more important as a practical matter than the possibility of a father's veto 182 is the economic issue: what of women too poor to exercise the abortion choices constitutionally entrusted to them by Roe and Doe? The Court's plain concern in cases like Roe and Griswold v. Connecticut 183 has not been with affirmative access but with freedom from governmental intrusion.18 Just as the Court in Doe would have accepted "no argument that because the wealthy can afford better physicians, the poor should have. non-physicians made available to them," 185 it would certainly have rejected an argument that the state must remove the dollar sign from medicine by making the quality of care received independent of financial resources. Whatever one may think of fully socialized medicine, the Burger Court will not hold that it is constitutionally required.

The role-allocation concept developed in this Foreword enables one to accept this conclusion but to argue nonetheless that minimal access to abortion might be constitutionally guaranteed. Perhaps the best way to make the argument is to begin with the case that might be regarded as its antithesis: San Antonio Independent School District v. Rodriguez,186 which sustained against equal protection attack public school finance schemes using local property taxation as a base and thereby forcing districts with lower property values to make more effort than others in order to raise the same amount of money per pupil for educational purposes. The Rodriguez Court concluded that education is not a "fundamental right or liberty" for purposes of subjecting its distribution by the state to strict judicial scrutiny under the equal protec

No. 1477-71 (D.D.C., June 5, 1972), noted in Boston Globe, June 6, 1972, at 5, col. 1. A state might nonetheless attempt to codify the childbearing obligations attendant upon marriage unless the parties specify otherwise. Exploring the many issues involved in giving prospective fathers a veto over previability abortions is beyond the scope of this Foreword. After viability, however, even a state which chooses not to forbid abortion altogether could presumably confer upon potential fathers the power to prevent fetal destruction, though not fetal separation as such. Cf. p. 29 supra.

182 The pressure to enact and enforce laws in this area comes principally from groups who regard fetal life as sacred, not those who are concerned with the values of fatherhood. But see Pastoral Message of the Administrative Committee, National Conference of Catholic Bishops, Feb. 13, 1973, in 19 CATH. LAWYER 29, 31 (1973). The nature of intrafamily decisionmaking may in any event be quite impervious in all but the rarest cases to formal rules about who may decide which questions.

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tion clause,187 because there is no "right to education explicitly or implicitly guaranteed by the Constitution." 188 Purporting to distinguish Roe and related cases, the Court said that "the right of procreation," unlike education, "is among the rights of personal privacy protected under the Constitution." 189 Yet the Court in Roe had cited Pierce v. Society of Sisters 190 and Meyer v. Nebraska 191 for its conclusion that the "right of personal privacy . . has some extension to activities relating to child rearing and education," ," 192 a conclusion on which the Roe Court expanded in affirming the woman's right to decide "whether or not to terminate her pregnancy. " 193 Did the Rodriguez Court silently overrule Meyer and Pierce shortly after citing them with approval? 194

The answer, I think, is not hard to find. Education and procreation are both "fundamental" in the sense that the Constitution severely limits the power of government to usurp the family's central decisionmaking role with respect to either. Nothing in Rodriguez contradicts that view. On the contrary, the Court praises the values of maintaining a link between education and the home so as to allow parental "control over decisions vitally affecting the education of one's children . . . ." 195 Indeed, it is the value of maintaining such parental control that the Court identifies as the "legitimate state purpose" furthered by the local tax scheme which Rodriguez upholds.196

But the fundamentality of both education and procreation as a matter of role-allocation between family and state need not imply their fundamentality for purposes of role-allocation between legislature and court- that is, for purposes of deciding how "strictly" the judiciary should scrutinize the legislature's performance of a concededly appropriate role. Since the legitimacy of legislative decisionmaking with respect to the financing of public

192

(1973).

410 U.S. at 152-53. See also United States v. Orito, 93 S. Ct. 2674, 2677

193 410 U.S. at 153.

194 See 411 U.S. at 30.

195 Id. at 49, quoting Wright v. Council of the City of Emporia, 407 U.S. 451, 469 (1972).

196 411 U.S. at 49-50, 54-55. Justice Powell's separate opinion in Keyes v. School Dist., 93 S. Ct. 2686, 2715-17 (1973), is even more explicit in stressing the centrality of neighborhood school systems to "the interest of the parent in the enhanced parent-school and parent-child communication allowed by the neighborhood unit. . . .”

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[Vol. 87:1 school education was not questioned in Rodriguez, the Court was being asked to supervise the performance of a role undeniably belonging to the state-a request it predictably construed as seeking "judicial intrusion into otherwise legitimate state activities." 197 Obviously, the constitutional considerations favoring the removal of a decisional role from government and its location in the private sphere such concerns as religious disentanglement and associational integrity — may have nothing whatsoever to do with the issue of whether an area of decision related to that role should be partially shifted from state legislatures to the federal judiciary by the invocation of "strict review" in the context of an equal protection claim. The Rodriguez Court's attempt to distinguish Roe and Skinner v. Oklahoma 198 because they both involved procreation rather than education was therefore misguided; they were distinguishable because they involved the question of who should make reproductive decisions, not the question of what criteria should be used in making and reviewing properly governmental decisions about the distribution of public resources related to sexual reproduction. The distinction is important because the "fundamental” nature of a role in the sense of its constitutional immunity from governmental interference does not support strict judicial scrutiny of every governmental program which distributes benefits relating to that role.200

199

Thus, the role-allocation arguments advanced in this Foreword would not support equal protection strict scrutiny of varying support levels built into state financing schemes for publicly funded medical procedures which include abortions. But it need not follow that the Constitution guarantees indigent women no affirmative access whatsoever to abortions for which they are unable to pay, assuming that affirmative governmental obligations can ever be justified.

There have, of course, been theoretical attempts to provide such justification.201 The central problem to be solved by any such 197 411 U.S. at 36.

198 316 U.S. 535 (1942); see note 173 supra.

199

411 U.S. at 33-34. See also Lee, supra note 25, at 476-77.

200 See p. 50 & note 227 infra. For an analysis which assumes that one can define a single set of fundamental rights, valid for all constitutional purposes, see Goodpaster, supra note 7, at 515-16.

201 See, e.g., Michelman, supra note 75. See also Black, supra note 77; Karst & Horowitz, Reitman v. Mulkey: A Telophase of Substantive Equal Protection, 1967 SUP. CT. REV. 39; Sager, Tight Little Islands: Exclusionary Zoning, Equal Protection, and the Indigent, 21 STAN. L. REV. 767 (1969).

And even in Rodriguez, the Court leaves open the possibility that "some identifiable quantum of education" might be held "a constitutionally protected prerequisite to the meaningful exercise" of such other rights as the "rights to speak and to vote." 411 U.S. at 36. Whether the Rodriguez Court was right to conclude that

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attempt is to find sources of constitutional guidance in answer to the question: "why abortion and not golf?" 202 Why should some needs be singled out as justifying a constitutional demand for positive state action while others are relegated to governmental discretion and the impersonal verdict of the market?

Some help in answering this question may be found in the concept of role-allocation. For although it may be possible to derive a structure of affirmative obligation from purely individualistic moral premises,203 the idea that constitutional rights reflect protected social roles 204 rather than merely define "holes" in the fabric of state power seems a particularly suitable framework in which to articulate as obligatory those affirmative roles of government without which the social roles protected by limits on public authority could be emptied of significant content and reduced to the kinds of abstract liberty that courts enshrined in the Lochner era of the idealized minimal state.

Having concluded that government cannot usurp the woman's role of personal decision with respect to early abortion, one might ultimately be able to conclude that government must assume, directly or indirectly, the affirmative role of providing access to the means of preventing unwanted pregnancy and of terminating it if it occurs." 205 And the result of thus completing the role-allocation conception, by extending it to include obligatory as well as forbidden roles for the state, would be to make the individual, viewed as a social being, the repository of affirmative as well as negative freedoms.200

That the drawing of such a link between forbidden and mandatory governmental roles is not wholly alien to the Court's jurisprudence emerges from a consideration of several recent decisions bearing on the marital relationship. Having held that the selection of a marital partner 207 and the shaping of marital inti

the required minimum (if any) had been met in the case before is a question I do not consider here.

202 Cf. Michelman, supra note 75, at 59.

203 See id. at 9, 15-16; cf. Nagel, Rawls on Justice, 82 PHIL. REV. 220, 227-28 (1973).

204 By "protected social roles" I mean in this context not simply roles barred to government (for example, by the establishment clause), but roles as to which there exist affirmative grounds (for example, freedom of association) for entrusting them to a particular category of individuals or groups.

205 The idea of an affirmative duty as part of a "role" obviously requires a conception of roles broad enough to encompass obligations as well as powers of choice. For such a conception, see R. DAHRENDORF, supra note 179, at 36-37, 39-42 & n.15.

206 See generally I. BERLIN, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY 118 (1969).

207 Loving v. Virginia, 388 U.S. 1, 12 (1967).