The selective funding problem: Abortions and religious schools

Harvard Law Review

Volumn 104, Issue 5, 1991, Pages 989-1049

  McConnell, Michael W ^a  

^a UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ANALYTICAL APPROACH; ARTICLE; CONSTITUTIONAL LAW; COUNSELING; EDUCATION; EQUAL PROTECTION; FINANCIAL MANAGEMENT; GENETICS AND REPRODUCTION; GOVERNMENT; GOVERNMENT REGULATION; HARRIS V. MCRAE; HEALTH CARE FACILITY; HEALTH CARE ORGANIZATION; HUMAN RIGHTS; HYDE AMENDMENT; INDIGENTS; INDUCED ABORTION; JURISPRUDENCE; LEGAL APPROACH; LEGAL RIGHTS; LEMON V. KURTZMAN; MANAGEMENT; POLICY; POLICY ANALYSIS; POVERTY; PRIVACY; RELIGION; RELIGIOUS APPROACH; RESOURCE ALLOCATION; SOCIAL CONTROL; UNITED STATES;

ANALYTICAL APPROACH; CONSTITUTIONAL LAW; EQUAL PROTECTION; FEDERAL GOVERNMENT; GENETICS AND REPRODUCTION; GOVERNMENT REGULATION; HARRIS V. MCRAE; HYDE AMENDMENT; INDIGENTS; LEGAL APPROACH; LEGAL RIGHTS; LEMON V. KURTZMAN; POLICY ANALYSIS; RELIGIOUS APPROACH; RESOURCE ALLOCATION; SUPREME COURT DECISIONS; UNITED STATES;

ABORTION, INDUCED; CIVIL RIGHTS; COUNSELING; EDUCATION; FINANCING, GOVERNMENT; GOVERNMENT; HEALTH CARE RATIONING; HEALTH FACILITIES; JURISPRUDENCE; POLICY MAKING; POVERTY; PRIVACY; PUBLIC POLICY; RELIGION; SOCIAL CONTROL, FORMAL; STATE GOVERNMENT; UNITED STATES;

EID: 0026125853     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341670     Document Type: Article

References (257)

1. The Hyde Amendment has been reenacted each year since 1976 as a rider to the Department of Health and Human Services appropriation bill. For a recent version, see Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act of 1990, Pub. L. No. 101-166, § 204, 103 Stat. 1159, 1177 (1989), which provides that "[n]one of the funds contained in this Act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term." Id. In the version before the Court in Harris v. McRae, 448 U.S. 297 (1980), the Hyde Amendment also permitted the use of federal funds for abortions if the pregnancy had been caused by rape or incest that had been reported promptly to the authorities. See id. at 302.
2. 403 U.S. 602 (1971).
3. The religious school funding cases are vastly more complicated than this simple description implies, but those complications do not affect the analysis here. For more detailed descriptions and analyses of the cases, see Garvey, Another Way of Looking at School Aid, 1985 SUP. CT. REV. 61; McConnell, Political and Religious Disestablishment, 1986 B.Y.U. L. REV. 405; McConnell & Posner, An Economic Approach to Issues of Religious Freedom, 56 U. CHI. L. REV. 1, 25-26 (1989); and McKeever, "Forbidden Fruit": Governmental Aid to Nonpublic Education and the Primary Effect Test Under the Establishment Clause, 34 VILL. L. REV. 1079 (1989).
4. The religious school funding cases are vastly more complicated than this simple description implies, but those complications do not affect the analysis here. For more detailed descriptions and analyses of the cases, see Garvey, Another Way of Looking at School Aid, 1985 SUP. CT. REV. 61; McConnell, Political and Religious Disestablishment, 1986 B.Y.U. L. REV. 405; McConnell & Posner, An Economic Approach to Issues of Religious Freedom, 56 U. CHI. L. REV. 1, 25-26 (1989); and McKeever, "Forbidden Fruit": Governmental Aid to Nonpublic Education and the Primary Effect Test Under the Establishment Clause, 34 VILL. L. REV. 1079 (1989).
5. The religious school funding cases are vastly more complicated than this simple description implies, but those complications do not affect the analysis here. For more detailed descriptions and analyses of the cases, see Garvey, Another Way of Looking at School Aid, 1985 SUP. CT. REV. 61; McConnell, Political and Religious Disestablishment, 1986 B.Y.U. L. REV. 405; McConnell & Posner, An Economic Approach to Issues of Religious Freedom, 56 U. CHI. L. REV. 1, 25-26 (1989); and McKeever, "Forbidden Fruit": Governmental Aid to Nonpublic Education and the Primary Effect Test Under the Establishment Clause, 34 VILL. L. REV. 1079 (1989).
6. The religious school funding cases are vastly more complicated than this simple description implies, but those complications do not affect the analysis here. For more detailed descriptions and analyses of the cases, see Garvey, Another Way of Looking at School Aid, 1985 SUP. CT. REV. 61; McConnell, Political and Religious Disestablishment, 1986 B.Y.U. L. REV. 405; McConnell & Posner, An Economic Approach to Issues of Religious Freedom, 56 U. CHI. L. REV. 1, 25-26 (1989); and McKeever, "Forbidden Fruit": Governmental Aid to Nonpublic Education and the Primary Effect Test Under the Establishment Clause, 34 VILL. L. REV. 1079 (1989).
7. 448 U.S. 297 (1980).
8. Id. at 333-34 (Brennan, J., dissenting) (citation omitted).
9. Tushnet, Religion and Theories of Constitutional Interpretation, 33 LOY. L. REV. 221, 228 n.27 (1987).
10. See Harris, 448 U.S. at 326-27; accord Webster v. Reproductive Health Servs., 109 S. Ct. 3040, 3050-53 (1989) (plurality opinion); Williams v. Zbaraz, 448 U.S. 358, 369 (1980); Poelker v. Doe, 432 U.S. 519, 521 (1977); Maher v. Roe, 432 U.S. 464, 470 (1977).
11. See Lemon, 403 U.S. at 625; accord Aguilar v. Felton, 473 U.S. 402, 409 (1985); Grand Rapids School Dist. v. Ball, 473 U.S. 373, 392-93 (1985). Harris and Lemon are not, of course, exactly parallel. Harris holds that the government is not required to fund abortions when it funds childbirth, whereas Lemon holds that the government is forbidden to fund religious schools even though it funds secular schools. Lemon has two aspects: an explicit "establishment" holding that the Constitution forbids the government from funding reli-gious schools and an implicit "free exercise" holding that this selective funding does not violate the rights of religious adherents who include religious education as part of their exercise of religion.
12. Justices Brennan, Marshall, Blackmun, and Stevens dissented in relevant part in Harris and Webster but joined the majority in the most recent religious school aid cases, Aguilar and Grand Rapids. Chief Justice Rehnquist and Justices White, O'Connor, Scalia, and Kennedy voted to uphold the abortion funding restrictions in Webster; then-Justice Rehnquist and Justices White and O'Connor dissented in relevant part in Aguilar and Grand Rapids, and Justices Scalia and Kennedy have signaled their agreement. See Bowen v. Kendrick, 487 U.S. 589, 624 (1988) (Kennedy, J., joined by Scalia, J., concurring). Justice Souter has not taken a position.
13. 410 U.S. 113 (1973).
14. 268 U.S. 510 (1925). Pierce also recognized a right to send one's child to a nonreligious private school, namely a military academy. See id. at 535. That is obviously not a free exercise right, and any discussion of that right is beyond the scope of this Article.
15. See Committee for Pub. Educ. v. Nyquist, 413 U.S. 756, 788 (1973). Even after Employment Division v. Smith, 110 S. Ct. 1595 (1990), which severely curtailed protections under the free exercise clause, parents' free exercise right to "'direct the religious upbringing of their children'" remains of the highest order and overrides even "a neutral, generally applicable regulatory law" to the contrary. Id. at 1601 & n.1 (quoting and reaffirming Wisconsin v. Yoder, 406 U.S. 205, 233 (1972)).
16. That is, Lemon's implicit rejection of the free exercise claim to funding is correct.
17. In the political climate since Roe, opponents of abortion have tended to support returning the issue to the state governments, but in most cases this is no more than a tactical judgment. If a fetus is a person, majoritarian government has no right to refuse to extend protection to it. See Finnis, Natural Law and the Rights of the Unborn, in ABORTION AND THE CONSTITUTION 115, 119 (D. Horan, E. Grant & P. Cunningham eds. 1987); Noonan, The Root and Branch of Roe v. Wade, 63 NEB. L. REV. 668, 679 (1984). The principled argument for returning the issue to the states is based, like Roe itself, on "agnosticism" about the moral-legal status of the fetus or unborn child. It holds that our decentralized, state-by-state political process is the best available means for reaching a broadly satisfactory and peaceful compromise on this explosive question.
18. In the political climate since Roe, opponents of abortion have tended to support returning the issue to the state governments, but in most cases this is no more than a tactical judgment. If a fetus is a person, majoritarian government has no right to refuse to extend protection to it. See Finnis, Natural Law and the Rights of the Unborn, in ABORTION AND THE CONSTITUTION 115, 119 (D. Horan, E. Grant & P. Cunningham eds. 1987); Noonan, The Root and Branch of Roe v. Wade, 63 NEB. L. REV. 668, 679 (1984). The principled argument for returning the issue to the states is based, like Roe itself, on "agnosticism" about the moral-legal status of the fetus or unborn child. It holds that our decentralized, state-by-state political process is the best available means for reaching a broadly satisfactory and peaceful compromise on this explosive question.
19. By "agnosticism" I mean the position that the government itself does not and cannot know. I do not mean the position that no one can know.
20. Roe v. Wade, 410 U.S. 113, 159 (1973).
21. The significance of this "agnosticism" is best seen by contrasting the position of government toward abortion as defined in Roe with the position of government toward racial discrimination. Just as the government must not interfere with abortion rights, it must not discriminate on the basis of race. But the government has no obligation to remain "agnostic" about racial discrimination or to accord respect to racism. The government may - subject to the limits of other constitutional provisions - use its full powers to eradicate racism in our society.
22. As an attempt to encapsulate the entire principle of church-state relations, the term "separation" can often be misleading. See McConnell, Accommodation of Religion, 1985 SUP. CT. REV. 1 13-14; McConnell, Why "Separation" Is Not the Key to Church-State Relations, Christian Century, Jan. 18, 1989, at 43. Here, it is used in its most normative, attractive sense, as suggesting that religion must be autonomous and independent of government - not in its more rigid and formalistic sense, in which it can resemble an ideological preference for secularism over religion in the public sphere.
23. As an attempt to encapsulate the entire principle of church-state relations, the term "separation" can often be misleading. See McConnell, Accommodation of Religion, 1985 SUP. CT. REV. 1 13-14; McConnell, Why "Separation" Is Not the Key to Church-State Relations, Christian Century, Jan. 18, 1989, at 43. Here, it is used in its most normative, attractive sense, as suggesting that religion must be autonomous and independent of government - not in its more rigid and formalistic sense, in which it can resemble an ideological preference for secularism over religion in the public sphere.
24. Indeed, the Court has used the same language of "privacy" in both contexts. Compare Lemon, 403 U.S. at 625 ("The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice . . . ." (emphasis added)) with Roe, 410 U.S. at 154 ("[T]he right of personal privacy includes the abortion decision . . . ." (emphasis added)).
25. Lemon, 403 U.S. at 612.
26. On the idea of a "burden under the free exercise clause, see Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 HARV. L. REV. 933 (1989); and McConnell & Posner, supra note 3, at 38-45. The concepts of penalty and subsidy are notoriously slippery. See Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1433-42 (1989); Sunstein, Why the Unconstitutional Conditions Doctrine Is an Anachronism (with Particular Reference to Religion, Speech, and Abortion), 70 B.U.L. REV. 593, 601-04 (1990). However, they can be given reasonably workable and consistent definitions. See Baker, The Prices of Rights: Toward a Positive Theory of Unconstitutional Conditions, 75 CORNELL L. REV. 1185, 1246-57 (1990); McConnell, Unconstitutional Conditions: Unrecognized Implications for the Establishment Clause, 26 SAN DIEGO L. REV. 255, 261-63 (1989). There is no need to define these terms precisely here in order to demonstrate that Harris and Lemon use irreconcilable definitions.
27. On the idea of a "burden under the free exercise clause, see Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 HARV. L. REV. 933 (1989); and McConnell & Posner, supra note 3, at 38-45. The concepts of penalty and subsidy are notoriously slippery. See Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1433-42 (1989); Sunstein, Why the Unconstitutional Conditions Doctrine Is an Anachronism (with Particular Reference to Religion, Speech, and Abortion), 70 B.U.L. REV. 593, 601-04 (1990). However, they can be given reasonably workable and consistent definitions. See Baker, The Prices of Rights: Toward a Positive Theory of Unconstitutional Conditions, 75 CORNELL L. REV. 1185, 1246-57 (1990); McConnell, Unconstitutional Conditions: Unrecognized Implications for the Establishment Clause, 26 SAN DIEGO L. REV. 255, 261-63 (1989). There is no need to define these terms precisely here in order to demonstrate that Harris and Lemon use irreconcilable definitions.
28. On the idea of a "burden under the free exercise clause, see Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 HARV. L. REV. 933 (1989); and McConnell & Posner, supra note 3, at 38-45. The concepts of penalty and subsidy are notoriously slippery. See Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1433-42 (1989); Sunstein, Why the Unconstitutional Conditions Doctrine Is an Anachronism (with Particular Reference to Religion, Speech, and Abortion), 70 B.U.L. REV. 593, 601-04 (1990). However, they can be given reasonably workable and consistent definitions. See Baker, The Prices of Rights: Toward a Positive Theory of Unconstitutional Conditions, 75 CORNELL L. REV. 1185, 1246-57 (1990); McConnell, Unconstitutional Conditions: Unrecognized Implications for the Establishment Clause, 26 SAN DIEGO L. REV. 255, 261-63 (1989). There is no need to define these terms precisely here in order to demonstrate that Harris and Lemon use irreconcilable definitions.
29. On the idea of a "burden under the free exercise clause, see Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 HARV. L. REV. 933 (1989); and McConnell & Posner, supra note 3, at 38-45. The concepts of penalty and subsidy are notoriously slippery. See Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1433-42 (1989); Sunstein, Why the Unconstitutional Conditions Doctrine Is an Anachronism (with Particular Reference to Religion, Speech, and Abortion), 70 B.U.L. REV. 593, 601-04 (1990). However, they can be given reasonably workable and consistent definitions. See Baker, The Prices of Rights: Toward a Positive Theory of Unconstitutional Conditions, 75 CORNELL L. REV. 1185, 1246-57 (1990); McConnell, Unconstitutional Conditions: Unrecognized Implications for the Establishment Clause, 26 SAN DIEGO L. REV. 255, 261-63 (1989). There is no need to define these terms precisely here in order to demonstrate that Harris and Lemon use irreconcilable definitions.
30. On the idea of a "burden under the free exercise clause, see Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 HARV. L. REV. 933 (1989); and McConnell & Posner, supra note 3, at 38-45. The concepts of penalty and subsidy are notoriously slippery. See Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1433-42 (1989); Sunstein, Why the Unconstitutional Conditions Doctrine Is an Anachronism (with Particular Reference to Religion, Speech, and Abortion), 70 B.U.L. REV. 593, 601-04 (1990). However, they can be given reasonably workable and consistent definitions. See Baker, The Prices of Rights: Toward a Positive Theory of Unconstitutional Conditions, 75 CORNELL L. REV. 1185, 1246-57 (1990); McConnell, Unconstitutional Conditions: Unrecognized Implications for the Establishment Clause, 26 SAN DIEGO L. REV. 255, 261-63 (1989). There is no need to define these terms precisely here in order to demonstrate that Harris and Lemon use irreconcilable definitions.
31. On the idea of a "burden under the free exercise clause, see Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 HARV. L. REV. 933 (1989); and McConnell & Posner, supra note 3, at 38-45. The concepts of penalty and subsidy are notoriously slippery. See Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1433-42 (1989); Sunstein, Why the Unconstitutional Conditions Doctrine Is an Anachronism (with Particular Reference to Religion, Speech, and Abortion), 70 B.U.L. REV. 593, 601-04 (1990). However, they can be given reasonably workable and consistent definitions. See Baker, The Prices of Rights: Toward a Positive Theory of Unconstitutional Conditions, 75 CORNELL L. REV. 1185, 1246-57 (1990); McConnell, Unconstitutional Conditions: Unrecognized Implications for the Establishment Clause, 26 SAN DIEGO L. REV. 255, 261-63 (1989). There is no need to define these terms precisely here in order to demonstrate that Harris and Lemon use irreconcilable definitions.
32. See Committee for Pub. Educ. v. Nyquist, 413 U.S. 756, 788 (1973) (recognizing tension between the religion clauses but maintaining that the establishment clause prevents the government from aiding religious schools). Why the establishment clause takes precedence in this context is unexplained; most cases go the other way. See, e.g., McDaniel v. Paty, 435 U.S. 618, 627-29 (1978) (recognizing that the free exercise right of a minister to participate in politics overrides any establishment clause concern to avoid religious power in government); Sherbert v. Verner, 374 U.S. 398, 409 (1963) (holding that the free exercise clause requires a state to provide unemployment benefits for those out of work for religious but not secular reasons); see also Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 18 n.8 (1989) (plurality opinion) (noting that the Court has permitted benefits that would otherwise be forbidden under the establishment clause because they "were designed to alleviate government intrusions that might significantly deter adherents of a particular faith from conduct protected by the Free Exercise Clause"). Professor Laurence Tribe has concluded that "the free exercise principle should be dominant when it conflicts with the anti-establishment principle." L. TRIBE, AMERICAN CONSTITUTIONAL LAW §14-8, at 1201 (2d ed. 1988).
33. To be sure, the Court in Roe did not address this question. Indeed, the opinion approvingly cited Buck v. Bell, 274 U.S. 200 (1927), the infamous decision approving involuntary sterilization. See Roe v. Wade, 410 U.S. 113, 154 (1973). If Buck is good law, maybe forced abortions would be constitutional as well. But if one treats the citation of Buck as thoughtless, it seems far more consistent with the theory of Roe to hold that the government can neither prevent nor require abortion.
34. See, e.g., Perry, Why the Supreme Court Was Plainly Wrong in the Hyde Amendment Case: A Brief Comment on Harris v. McRae, 32 STAN. L. REV. 1113, 1117-18 (1980).
35. See Project Grants for Family Planning Services, 42 C.F.R. §§59.1-59.17 (1990).
36. See infra pp. 1023-25.
37. Tribe, The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence, 99 HARV. L. REV. 330, 336 (1985) (emphasis in original).
38. Marshall, Towards a Nonunifying Theory of Unconstitutional Conditions: The Example of the Religion Clauses, 26 SAN DIEGO L. REV. 243, 245 (1989).
39. See, e.g., Aguilar v. Felton, 473 U.S. 402, 413-14 (1985).
40. Bowen v. Kendrick, 487 U.S. 589, 615 (1988).
41. See Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481, 489 & n.5 (1986) (finding it unnecessary to address "entanglement" from nondiscriminatory funding of vocational education for blind persons in religious or nonreligious colleges in absence of a trial record); Mueller v. Allen, 463 U.S. 388, 403 (1983) (finding no excessive entanglement from administration of tuition tax credits).
42. 33 Id. at 318.
43. Id. at 317 n.19.
44. See DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 198-200 (1989).
45. See, e.g., Douglas v. California, 372 U.S. 353 (1963); Gideon v. Wainwright, 372 U.S. 335 (1963); Griffin v. Illinois, 351 U.S. 12 (1956). Although Griffin and Douglas invoked the equal protection clause, the more apt doctrinal basis is due process. See Lassiter v. Department of Social Servs., 452 U.S. 18, 24-33 (1981); Ross v. Moffitt, 417 U.S. 600, 609-11 (1974).
46. See, e.g., DeShaney, 489 U.S. at 198-200; Estelle v. Gamble, 429 U.S. 97, 103 (1976) (holding that the government must provide medical care to incarcerated prisoners); Katcoff v. Marsh, 755 F.2d 223, 232 (2d Cir. 1985) (holding that the government must provide chaplains to military personnel).
47. Professor Kathleen Sullivan's test for conditions that require strict constitutional scrutiny thus seems overbroad. She contends that the courts should strictly scrutinize "any government benefit condition whose primary purpose or effect is to pressure recipients to alter a choice about exercise of a preferred constitutional liberty in a direction favored by government." Sullivan, supra note 21, at 1499-1500. Perhaps the terms "primary" or "pressure" in this formulation are intended to delimit the analysis in some unspecified way; but if Professor Sullivan means that strict scrutiny is triggered by pure "effects" on the margin, her test sweeps too widely.
48. See id. at 1498 ("From the perspective of liberty, all conditions on benefits may look alike: government pressures the speech of the indigent through conditions on welfare no more or less than it pressures the speech of the rich through conditions on capital gains tax benefits or oil depletion allowances." (emphasis in original)).
49. See Michelman, The Supreme Court, 1968 Term - Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7 (1969); Michelman, Welfare Rights in a Constitutional Democracy, 1979 WASH. U.L.Q. 659. But see Bork, The Impossibility of Finding Welfare Rights in the Constitution, 1979 WASH. U.L.Q. 695; Winter, Poverty, Economic Equality, and the Equal Protection Clause, 1972 SUP. CT. REV. 41.
50. See Michelman, The Supreme Court, 1968 Term - Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7 (1969); Michelman, Welfare Rights in a Constitutional Democracy, 1979 WASH. U.L.Q. 659. But see Bork, The Impossibility of Finding Welfare Rights in the Constitution, 1979 WASH. U.L.Q. 695; Winter, Poverty, Economic Equality, and the Equal Protection Clause, 1972 SUP. CT. REV. 41.
51. See Michelman, The Supreme Court, 1968 Term - Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7 (1969); Michelman, Welfare Rights in a Constitutional Democracy, 1979 WASH. U.L.Q. 659. But see Bork, The Impossibility of Finding Welfare Rights in the Constitution, 1979 WASH. U.L.Q. 695; Winter, Poverty, Economic Equality, and the Equal Protection Clause, 1972 SUP. CT. REV. 41.
52. See Michelman, The Supreme Court, 1968 Term - Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7 (1969); Michelman, Welfare Rights in a Constitutional Democracy, 1979 WASH. U.L.Q. 659. But see Bork, The Impossibility of Finding Welfare Rights in the Constitution, 1979 WASH. U.L.Q. 695; Winter, Poverty, Economic Equality, and the Equal Protection Clause, 1972 SUP. CT. REV. 41.
53. This analysis follows the economic understanding of taxes and subsidies. According to standard microeconomic theory, governmental funding of a substitute is equivalent to a tax, and governmental funding of a complement is equivalent to a subsidy.
54. Abortions are generally less expensive than childbirth. See Harris, 448 U.S. at 355 n.9 (Stevens, J., dissenting) (noting that the average cost of an abortion in Illinois in 1979 was $150, while the average cost for childbirth was $1350). And even if the medical costs of childbirth are paid by the government, the large part of the financial burden of child-rearing lies ahead. Thus, even under the Hyde Amendment, abortion is the cheaper option in strictly financial terms.
55. See McConnell & Posner, supra note 3, at 16-17.
56. See J. COLEMAN, T. HOFFER & S. KILGORE, HIGH SCHOOL ACHIEVEMENT: PUBLIC, CATHOLIC, AND PRIVATE SCHOOLS COMPARED 122-78 (1982) (summarizing research data). The average sophomore attending private school scored above the average public school sophomore in every tested area. See id. at 124. Moreover, private schools are especially beneficial for students of minority races and lower income and educational backgrounds; in private schools, these students tend to score higher than do similar students in the public schools. See id. at 144.
57. See Sonstelie, The Welfare Cost of Free Public Schools, 90 J. POL. ECON. 794, 803 (1982) (calculating that the cost of a private education is 37% of the cost of a public education of equivalent quality).
58. See Bush Rejects Tax Break for Private School Cost, N. Y. Times, Mar. 30, 1989, at A2o, col. 3.
59. See supra note 42. But see Hardy, Privacy and Public Funding: Maher v. Roe as the Interaction of Roe v. Wade and Dandridge v. Williams, 18 ARIZ. L. REV. 903, 926-27 (1976) (arguing that a systematic provision of abortions is more costly because of repetitive abortions and medical complications).
60. See Sonstelie, supra note 45, at 803.
61. One preliminary definitional point must be made. To claim that the reasons for selective funding must not arise from "hostility" to the right (whether abortion or religious education) is not to rely on subjective intent, in the sense that the legislators (or judges acting as decisionmakers) were personally hostile to the right. Claims of interference with substantive liberties, in contrast to equal treatment claims, have nothing to do with subjective legislative motivation. The proper question is whether there are reasons for funding childbirth and not abortion, and for funding secular schools and not religious schools, that could be accepted even by proponents of the affected rights. Reasons are "hostile" if they depend for their persuasive power upon antipathy to the exercise of the rights in question. Of course I do not mean that the reasons must be so powerful that proponents of the affected rights would necessarily agree that they outweigh other considerations; I mean only that a reason is not "hostile" if a proponent of the affected right would (or should) agree that the reason "counts" in favor of the decision to fund selectively.
62. Prry, supra note 24, at 1114.
63. Bea v. Doe, 432 U.S. 438, 455 (1977) (Marshall, J., dissenting); see also Maher v. Roe, 432 U.S. 464, 483 (1977) (Brennan, J., dissenting) ("None can take seriously the Court's assurance that its 'conclusion signals no retreat from Roe' . . . ." (quoting Maher, 432 U.S. at 475)).
64. See supra pp. 997-98.
65. MacKinnon, Roe v. Wade: A Study in Male Ideology, in ABORTION: MORAL AND LEGAL PERSPECTIVES 45, 52-53 (J. Garfield & P. Hennessey eds. 1984).
66. Harris, 448 U.S. at 348 (Marshall, J., dissenting).
67. Id. at 349 (Blackmun, J., dissenting) (quoting Beal, 432 U.S. at 463 (Blackmun, J., dissenting)).
68. Id. at 353 & n.5 (Stevens, J., dissenting).
69. Only Justice Brennan's dissent generally limited itself to the protection of the woman's right to choose. See id. at 329-30 (Brennan, J., dissenting).
70. Harris, 448 U.S. at 314 (quoting Maher v. Roe, 432 U.S. 464, 474 (1977)).
71. U.S. CONST, art. I, §8, cl. 1.
72. See 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL CONSTITUTION 330 (J. Elliot 2d ed. 1836) (speech by Madison at the Virginia Ratifying Convention on June 12, 1788); THE FEDERALIST No. 84, at 513 (A. Hamilton) (C. Rossiter ed. 1961); see also McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1477-80 (1990) (discussing the Federalist argument against a free exercise amendment).
73. Act for Establishing Religious Freedom (1785), reprinted in 5 P. KURLAND & R. LERNER, THE FOUNDER'S CONSTITUTION 84, 84 (1987).
74. See Epstein, The Supreme Court, 1987 Term - Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 HARV. L. REV. 4, 92-94 (1988); Hardy, supra note 47, at 933-38; Sunstein, Is There an Unconstitutional Conditions Doctrine?, 26 SAN DIEGO L. REV. 337, 343 (1989). Professor Epstein goes so far as to argue that public funding of abortions would violate the free exercise rights of those who conscientiously oppose abortion. See Epstein, supra, at 92. This interpretation goes well beyond any free exercise right recognized by the Court. See, e.g., Tilton v. Richardson, 403 U.S. 672, 689 (1971) (holding that extension of federal construction grants to religious colleges did not violate the free exercise rights of objecting taxpayers).
75. See Epstein, The Supreme Court, 1987 Term - Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 HARV. L. REV. 4, 92-94 (1988); Hardy, supra note 47, at 933-38; Sunstein, Is There an Unconstitutional Conditions Doctrine?, 26 SAN DIEGO L. REV. 337, 343 (1989). Professor Epstein goes so far as to argue that public funding of abortions would violate the free exercise rights of those who conscientiously oppose abortion. See Epstein, supra, at 92. This interpretation goes well beyond any free exercise right recognized by the Court. See, e.g., Tilton v. Richardson, 403 U.S. 672, 689 (1971) (holding that extension of federal construction grants to religious colleges did not violate the free exercise rights of objecting taxpayers).
76. In arguing against Harris, Professor Tribe labeled the "grave moral or religious qualms that some people might entertain about performing, or even helping to finance, an abortion" as "irrelevant to the question of government funding of abortions through tax receipts." Tribe, supra note 27, at 339. This, he says, is because the tax dollars used for abortions are not "traceable" to persons who object to this use. Id. at 340. In a footnote, he argues in the alternative that objectors could be permitted to obtain refunds. See id. at 340 n.38. Nowhere does he explain why these methods of taxpayer disassociation, which have been emphatically rejected under the establishment clause, are more adequate in the abortion context. Under Professor Tribe's logic, there could be no conscientious objection to using general tax revenues to build a church, because this could be done "without necessarily using tax revenues traceable to objectors." Id. at 340. This view suggests, at a minimum, that Flast v. Cohen, 392 U.S. 83 (1968), which held that individual federal taxpayers are sufficiently injured by governmental expenditures in support of religion that they have standing to challenge such expenditures under the establishment clause, see id. at 103, was wrongly decided. On the "traceability" point, see McConnell, supra note 3, at 450-52. On the refund point, see id. at 448-50.
77. See, e.g., Keller v. State Bar, no S. Ct. 2228, 2231 (1990); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 232-37 (1977).
78. See, e.g., Cammarano v. United States, 358 U.S. 498, 513 (1959) (addressing lobbying expenditures).
79. 461 U.S. 574 (1983).
80. Id. at 604; cF. Roberts v. United States Jaycees, 468 U.S. 609, 620 (1984) (noting that some truly private organizations have a constitutional right to refuse to admit members on the basis of sex or other invidious characteristics).
81. Bob Jones, 461 U.S. at 592.
82. Id. at 591. Bob Jones University's sincere religious doctrine regarding race relations casts doubt on the Court's holding that the moral repugnance of the school's practices could be a proper basis for a tax penalty. See Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 67 (1983); Laycock, Tax Exemptions for Racially Discriminatory Religious Schools, 60 TEX. L. REV. 259, 263, 269 (1982). When free exercise considerations are not present, however, the government is undoubtedly entitled to withdraw tax exempt status from racially discriminatory institutions.
83. Id. at 591. Bob Jones University's sincere religious doctrine regarding race relations casts doubt on the Court's holding that the moral repugnance of the school's practices could be a proper basis for a tax penalty. See Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 67 (1983); Laycock, Tax Exemptions for Racially Discriminatory Religious Schools, 60 TEX. L. REV. 259, 263, 269 (1982). When free exercise considerations are not present, however, the government is undoubtedly entitled to withdraw tax exempt status from racially discriminatory institutions.
84. See United States v. Lee, 455 U.S. 252, 260 (1982) (stating that because of the high public interest in maintaining a sound tax system, religious beliefs in conflict with the government's use of tax monies afford no basis for resisting the tax).
85. Professor Tribe has pointed out that many liberal members of Congress were embarrassed in arguing against the Hyde Amendment because they had recently argued that opponents of the Vietnam War had a legitimate objection to being taxed to pay for governmental activity they found deeply immoral. See L. TRIBE, ABORTION: THE CLASH OF ABSOLUTES 158 (1990).
86. To be sure, one could believe that the population explosion is a grave threat and that bringing children into the world is morally problematic. But this view is flatly inconsistent with the privacy rationale of Roe. It is an argument for using governmental powers, including taxing and spending, to advance collective goals relating to population and reproduction.
87. For example, in the course of arguing against the Harris decision, Professor Tribe advocates "providing improved prenatal care, better financial support for women with infants, and expanded adoption opportunities." Tribe, supra note 27, at 341.
88. See Dent, Religious Children, Secular Schools, 61 S. CAL. L. REV. 863, 865-73 (1988); Gelfand, Of Monkeys and Men - An Atheist's Heretical View of the Constitutionality of Teaching the Disproof of a Religion in the Public Schools, 16 J.L. & EDUC. 271, 307-14 (1987); Note, The Myth of Religious Neutrality by Separation in Education, 71 VA. L. REV. 127 (1985).
89. See Dent, Religious Children, Secular Schools, 61 S. CAL. L. REV. 863, 865-73 (1988); Gelfand, Of Monkeys and Men - An Atheist's Heretical View of the Constitutionality of Teaching the Disproof of a Religion in the Public Schools, 16 J.L. & EDUC. 271, 307-14 (1987); Note, The Myth of Religious Neutrality by Separation in Education, 71 VA. L. REV. 127 (1985).
90. See Dent, Religious Children, Secular Schools, 61 S. CAL. L. REV. 863, 865-73 (1988); Gelfand, Of Monkeys and Men - An Atheist's Heretical View of the Constitutionality of Teaching the Disproof of a Religion in the Public Schools, 16 J.L. & EDUC. 271, 307-14 (1987); Note, The Myth of Religious Neutrality by Separation in Education, 71 VA. L. REV. 127 (1985).
91. See, e.g., Smith v. Board of School Comm'rs, 655 F. Supp. 939, 982, 987 (S.D. Ala.) (ruling that the use of public school textbooks advancing the religion of "secular humanism" violates the establishment clause), rev'd, 827 F.2d 684 (11th Cir. 1987). Several recent studies have concluded that the typical public school curriculum is in fact biased against religion. See P. VITZ, RELIGION AND TRADITIONAL VALUES IN PUBLIC SCHOOL TEXTBOOKS: AN EMPIRICAL STUDY 80-81 (1985); C. HAYNES, TEACHING ABOUT RELIGIOUS FREEDOM IN AMERICA (1986); cf. Educators Urge Turn to Studies About Religion, N.Y. Times, July 2, 1987, at A16, col. 6 (discussing a report by the Association for Supervision and Curriculum Development calling for an end to the neglect of religion in public school textbooks).
92. See Fullinwider, The State's Interest in Racially Nondiscriminatory Education, in PUBLIC VALUES, PRIVATE SCHOOLS 21, 27-30 (N. Devins ed. 1989) (arguing that diversity in the public school system instills the democratic value of mutual respect and that this diversity should be required even of private schools); Levin, Educational Vouchers and Social Policy, in CARE AND EDUCATION OF YOUNG CHILDREN IN AMERICA 103, 116-20 (R. Haskins & J. Gallagher eds. 1980); Sunstein, supra note 21, at 609-10.
93. See Fullinwider, The State's Interest in Racially Nondiscriminatory Education, in PUBLIC VALUES, PRIVATE SCHOOLS 21, 27-30 (N. Devins ed. 1989) (arguing that diversity in the public school system instills the democratic value of mutual respect and that this diversity should be required even of private schools); Levin, Educational Vouchers and Social Policy, in CARE AND EDUCATION OF YOUNG CHILDREN IN AMERICA 103, 116-20 (R. Haskins & J. Gallagher eds. 1980); Sunstein, supra note 21, at 609-10.
94. See Rebell, Values Inculcation and the Schools: The Need for a New Pierce Compromise, in PUBLIC VALUES, PRIVATE SCHOOLS, supra note 76, at 37, 41 (arguing that the public schools increasingly fail to perform their "traditional socialization function" and may no longer be able to inculcate community values effectively); cF. Arons, Educational Choice as a Civil Rights Strategy, in PUBLIC VALUES, PRIVATE SCHOOLS, supra note 76, at 63, 72 (contending that public schools disempower minorities and suppress their viewpoints because public school systems are majoritarian institutions).
95. See Rebell, Values Inculcation and the Schools: The Need for a New Pierce Compromise, in PUBLIC VALUES, PRIVATE SCHOOLS, supra note 76, at 37, 41 (arguing that the public schools increasingly fail to perform their "traditional socialization function" and may no longer be able to inculcate community values effectively); cF. Arons, Educational Choice as a Civil Rights Strategy, in PUBLIC VALUES, PRIVATE SCHOOLS, supra note 76, at 63, 72 (contending that public schools disempower minorities and suppress their viewpoints because public school systems are majoritarian institutions).
96. African-Americans make up only five percent of the private school population at grade 12 (as compared to 12.2% in public schools), but the level of integration within individual private schools is significantly higher, so that the two tendencies approximately cancel each other out. See J. COLEMAN, T. HOFFER & S. KILGORE, supra note 44, at 29-37. Similarly, though the median income of private school students' families ($23,200) is higher than that of public school families ($18,700), see id. at 38, "the degree of economic segregation is lower in the private sector as a whole, and in the Catholic and other private sectors separately, than in the public sector." Id. at 41. Perhaps most significantly, the educational achievement levels of black and white students are far closer in Catholic than in public schools. See id. at 143-46.
97. Id. at 144.
98. When the state of Oregon sought to defend its law outlawing parochial schooling struck down in Pierce, it made the following argument to the Supreme Court: The voters in Oregon might also have based their action in adopting this law upon the alarm which they felt at the rising tide of religious suspicions in this country, and upon their belief that the basic cause of such religious feelings was the separation of children along religious lines during the most susceptible years of their lives, with the inevitable awakening of a consciousness of separation, and a distrust and suspicion of those from whom they were so carefully guarded. Pierce v. Society of Sisters, 268 U.S. 510, 525 (1925) (argument for Governor Pierce).
99. See infra p. 1044.
100. See Sherbert v. Verner, 374 U.S. 398 (1963).
101. 312 U.S. 569 (1941).
102. Id. at 577 (quoting State v. Cox, 91 N.H. 137, 144, 16 A.2d 508, 513 (1940)).
103. 358 U.S. 498 (I958).
104. 461 U.S. 540 (1983).
105. 468 U.S. 364 (1984).
106. Id. at 400.
107. 408 U.S. 593 (1972).
108. Professor Lynn Baker has applied a similar analysis to public assistance cases under a variety of constitutional provisions. See Baker, supra note 21, at 1213-46. The analysis also resembles Professor Ken Simons' distinction between "offers" and "threats." See Simons, Offers, Threats, and Unconstitutional Conditions, 26 SAN DIEGO L. REV. 289, 291-92 (1989).
109. Harris, 448 U.S. at 317 n.19.
110. See, e.g., A. GREELEY & P. ROSSI, THE EDUCATION OF CATHOLIC AMERICANS 190-98 (1966) (observing that religious instruction outside the regular classroom is less likely to inculcate religious values than full-time religious schooling).
111. See supra p. 1012.
112. Lemon, 403 U.S. at 610.
113. See McConnell & Posner, supra note 3, at 17, 18; West, An Economic Analysis of the Law and Politics of Non - Public School "Aid" 19 J.L. & ECON. 79, 87-89 (1976).
114. See McConnell & Posner, supra note 3, at 17, 18; West, An Economic Analysis of the Law and Politics of Non - Public School "Aid" 19 J.L. & ECON. 79, 87-89 (1976).
115. See H. BUETOW, THE CATHOLIC SCHOOL 102-12 (1988). Some of the religious schools in Grand Rapids School District v. Ball, 473 U.S. 373 (1985), for example, took the position that "'it is not sufficient that the teachings of Christianity be a separate subject in the curriculum, but the Word of God must be an all-pervading force in the educational program.'" Id. at 379 (emphasis omitted) (quoting a handbook from one of the schools). This is not to say that in most religiously affiliated schools, in actual practice, the religious elements are fully integrated into the curriculum.
116. See McConnell, supra note 3, at 439-40.
117. Hunt v. McNair, 413 U.S. 734, 743 (1973); accord Roemer v. Board of Pub. Works, 426 U.S. 736, 755-59 (1976).
118. Lemon, 403 U.S. at 657 (Brennan, J., concurring); accord Grand Rapids, 473 U.S. at 384; Meek v. Pittenger, 421 U.S. 349, 366 (1975).
119. See Choper, The Establishment Clause and Aid to Parochial Schools - An Update, 75 CALIF. L. REV. 5, 14 (1987).
120. 474 U.S. 481 (1986).
121. See Committee for Pub. Educ. v. Nyquist, 413 U.S. 756, 783 n.38 (1973); Americans United for Separation of Church & State v. Blanton, 433 F. Supp. 97, 102-05 (M.D. Tenn.), aff'd mem., 434 U.S. 803 (1977); Smith v. Board of Governors of the Univ. of N.C., 429 F. Supp. 871, 877-79 (W.D.N.C.), aff'd mem., 434 U.S. 803 (1977).
122. The great practical advantage of "indirect" aid is that the funding mechanism guarantees that individual choice, and not governmental favoritism, will dictate the allocation of funds. The potential for such governmental favoritism might be sufficient justification for excluding religious organizations from discretionary grant programs. But if funds for parochial schools are allocated on a per-pupil basis, there is no more danger of allocative distortion than with an "indirect" funding scheme.
123. The sole exception in the Supreme Court is Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646 (1980), which upheld a statute reimbursing parochial schools for the cost of administering state-prepared standardized tests. See id. at 660-61.
124. Everson v. Board of Educ., 330 U.S. 1, 60 (1947) (Rutledge, J., dissenting).
125. See id.; see also Roemer v. Board of Pub. Works, 426 U.S. 736, 747 (1976) (rejecting the position that the state cannot provide basic services to religious institutions).
126. Lemon, 403 U.S. at 619.
127. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 56-61 (1985); Webster v. New Lenox School Dist. No. 122, 917 F.2d 1004, 1007-08 (7th Cir. 1990); Steele v. Van Buren Pub. School Dist., 845 F.2d 1492, 1495-96 (8th Cir. 1988); Roberts v. Madigan, 702 F. Supp. 1505, 1518-19 (D. Colo. 1989), aff'd, No. 89-1014 (10th Cir. Dec. 17, 1990) (1990 U.S. App. LEXIS 21,683); Breen v. Runkel, 614 F. Supp. 355, 357-60 (D. Mich. 1985).
128. 109 S. Ct. 3040 (1989) (plurality opinion).
129. Mo. REV. STAT. § 188.205 (1986).
130. See id. § 188.210; Webster, 109 S. Ct. at 3053. The law also forbade any such encouragement or counseling in public facilities, see Mo. REV. STAT. § 188.215 (1986), a restriction considered below, see infra pp. 1032-33. The Eighth Circuit in Webster struck down all three provisions, but the state appealed only the provision pertaining to counseling with public funds, See 109 S. Ct. at 3053. Accepting the state's claim that this provision is directed only to disbursing officers, the Supreme Court concluded that there was no actual case or controversy pertaining to this portion of the statute. See id. at 3053-54.
131. See Massachusetts v. Secretary of Health & Human Servs., 899 F.2d 53, 72-75 (1st Cir. 1990), petition for cert, filed, 59 U.S.L.W. 3037 (U.S. June 8, 1990) (No. 89-1929); see also Note, The Title X Family Planning Gag Rule, 41 STAN. L. REV. 401, 408-22 (1989) (arguing that title X imposes an unconstitutional condition on family planning counselors' free speech).
132. See, e.g., Smith v. Blue Valley Unified School Dist., 9 Religious Freedom Rptr. (Campbell Univ.) 120 (D. Kan. Apr. 24, 1989) (1989 U.S. Dist. LEXIS 4067) (granting summary judgment against an assistant principal who raised a free speech challenge to his dismissal for discussing religious subjects with students); Roberts v. Madigan, 702 F. Supp. 1505, 1518-19 (D. Colo. 1989), aff'd, No. 89-1014 (10th Cir. Dec. 17, 1990) (1990 U.S. App. LEXIS 21,683) (denying a teacher's asserted right to read the Bible during silent reading periods). See generally J. WHITEHEAD, THE FREEDOM OF RELIGIOUS EXPRESSION IN THE PUBLIC HIGH SCHOOLS 34-42 (1983) (discussing the first amendment rights of teachers).
133. The First Circuit's contrary argument in Massachusetts overlooks the difference between privately funded and publicly funded activity: "[I]f information restrictions are invalid in general [that is, as applied to private physicians], how can they be valid in the limited situations of public funds? It is axiomatic that the government cannot do indirectly (i.e. through funding decisions) what it cannot do directly. " Massachusetts, 899 F2d at 72. Similar logic would suggest that if the government does not have the right to dictate the curriculum of private schools, it does not have the right to dictate the curriculum of public schools. This "reasoning " is an example of the unconstitutional conditions doctrine run riot. If the public-private distinction has any validity (and the privacy-separation rationale rests on just such a distinction), the government's authority to regulate private speech is an entirely different matter from its authority to regulate its own speech through its agents.
134. Some have argued that the nature of the physician-patient relationship sets the title X restrictions apart, but as a constitutional matter there is no difference between the relationship of a government-funded physician to his patients with respect to abortion counseling and the relationship of a public school teacher to his students with respect to religious communications. Both are professionals. Both have a certain degree of professional autonomy, whether called "medical judgment " or "academic freedom. " Both are limited in that autonomy if they work for the government, insofar as the government's authority with respect to "private " matters is limited.
135. 487 U.S. 589 (1988). The author of this Article argued the case in the Supreme Court on behalf of the private intervenors.
136. See 42 U.S.C. §§ 3002 to 3002-10 (1988).
137. Kendrick, 487 U.S. at 621.
138. The ACLU Reproductive Freedom Project has conducted the litigation in both Kendrick and the title X cases, taking inconsistent positions on free speech rights of grantees depending on whether the speech is in favor of abortion or religion.
139. See 42 C.F.R. § 59.5(a)(5) (1987) (providing that grant recipients may not "provide abortions as a method of family planning ").
140. 42 C.F.R. § 59.9 (1989).
141. See, e.g., 1980 Ariz. Sess. Laws 842, 860.
142. See Child Care and Development Block Grant Act of 1990, enacted in Omnibus Budget Reconciliation Act of 1990, §§ 5081-5082, Pub. L. No. 101-508, 1990 U.S. CODE CONG. & ADMIN. NEWS 625 (104 Stat. 1388). It has been reported that about one-fourth to one-third of day care centers are now church-affiliated. See Congressional Research Serv., Constitutionality of Possible Amendment to S. 5 Removing Certificates From § 19(a), at 7 (May 9, 1989) (on file at the Harvard Law School Library).
143. Interestingly, even statutory construction is distorted by the strong differences in perception regarding abortion and religion. Section 1008 of title X of the Public Health Service Act provides that "none of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning. " 42 U.S.C. § 300a-6 (1988). This language, on its face, incorporates restriction (2): publicly funded family planning services may not be offered in the same program in which abortions are performed. Notwithstanding this language, the First Circuit held that such an interpretation "violates congressional intent because of the effect it would have of limiting family planning programs. " Massachusetts v. Secretary of Health & Human Servs., 899 F.2d 53, 60 (1st Cir. 1990), petition for cert, filed, 59 U.S.L. W. 3037 (U.S. June 8, 1990) (No. 89-1929). By contrast, § 658M(a) of the Child Care and Development Block Grant Act provides that "[n]o financial assistance provided under this subchapter shall be expended for any sectarian purpose or activity, including sectarian worship and instruction " in child care centers receiving funds directly from government agencies. This appears to incorporate restriction (1): public funds may not be used for religious worship or instruction. (The restriction does not apply to the use of certificates or vouchers given to parents.) Ironically, the Committee Report accompanying the Act, under the chairmanship of Senator Edward Kennedy, rejected this reading of the restriction as too "narrow " and "technical " and instead found that "an entity receiving any form of financial assistance under this Act shall not include any sectarian activities, worship or instruction in providing child care services under this Act. " S. REP. No. 17, 101st Cong., ist Sess. 48-49 (1989). Thus, the Committee interpreted the language of the Act as if it incorporated restriction (2) - no day care centers receiving federal funds may engage in religious activities while providing day care services. Thus, the two statutory provisions have been interpreted in a manner precisely opposite from what their language commands: the narrowly drawn religion restriction is interpreted in a "broad " fashion, while the broader abortion restriction is interpreted in a "narrow " and "technical " fashion. One is forced to conclude that in applying principles of statutory construction, as in interpreting constitutional doctrine, legal consistency has been subordinated to ideology.
144. See Bowen v. Kendrick, 487 U.S. 589, 610-14 (1988); Roemer v. Board of Pub. Works, 426 U.S. 736, 759-61 (1976); Hunt v. McNair, 413 U.S. 734, 744-45 (1973); Tilton v. Richardson, 403 U.S. 672, 677-80 (1971).
145. 1980 Ariz. Sess. Laws 842, 860.
146. Planned Parenthood v. Arizona, 718 F.2d 938, 941 (9th Cir. 1983).
147. Id. at 945.
148. See id. at 946.
149. See, e.g., Bowen v. Kendrick, 487 U.S. 589, 608-09 (1988); Hunt v. McNair, 413 U.S. 734, 742-43 (1973); Everson v. Board of Educ., 330 U.S. 1, 16-18 (1947); Bradfield v. Roberts, 175 U.S. 291, 299-300 (1899).
150. See 42 C.F.R. § 59.9 (1989).
151. See 42 C.F.R. §§ 59.5, 59.208, 59-212 (1987).
152. 42 C.F.R. § 59.9 (1990).
153. Compare Massachusetts v. Secretary of Health & Human Servs., 899 F.2d 53, 72-75 (1st Cir. 1990) (holding the regulations unconstitutional), petition for cert, filed, 59 U.S.L. W. 3037 (U.S. June 8, 1990) (No. 89-1929) and Planned Parenthood Fed'n v. Bowen, 680 F. Supp. 1465, 1477-78 (D. Colo. 1988) (same) with New York v. Bowen, 690 F. Supp. 1261, 1272-74 (S.D.N. Y. 1988) (upholding the constitutionality of the regulations).
154. 473 U.S. 373 (1985). The author of this Article prepared a brief and presented oral argument in Grand Rapids on the losing side.
155. See id. at 397.
156. See id. at 388-89, 391, 396 (limiting the rationale of the Court to activities on the premises of religious schools).
157. Id. at 388.
158. Id. at 392.
159. See id. at 396.
160. See McConnell, supra note 3, at 435-40, 456-59.
161. Standard of Compliance for Family Planning Services Projects, 52 Fed. Reg. 33,210, 33,211 (1987).
162. Id. at 33,212.
163. Id.
164. Id. Indeed, HHS may have undersold its case. Even in theory, the sharing of joint and common costs will have the effect of making the provision of abortions cheaper than it would be without government funding of the family planning project.
165. Grand Rapids, 473 U.S. at 385.
166. Compare Regan v. Taxation with Representation, 461 U.S. 540, 544-46 (1983) (finding that a tax provision forbidding substantial political lobbying by nonprofit organizations is constitutional because another provision of the tax code permitted such organizations to establish a separate affiliated entity that could engage in lobbying) with FCC v. League of Women Voters, 468 U.S. 364, 395 (1984) (striking down a law forbidding broadcasters from editorializing apparently because it was impossible for such broadcasters to establish a separate affiliated station to present editorials).
167. See Joint Appendix at 360, Grand Rapids (No. 83-990) (reporting effects in Grand Rapids); Joint Appendix at 66-67, 68, Aguilar (No. 84-237) (reporting effects in St. Louis and New York).
168. See Joint Appendix at 35-36, Aguilar (No. 84-237).
169. Compare Massachusetts v. Secretary of Health & Human Servs., 899 F. 2d 53, 72-75 (1st Cir. 1990) (invalidating the title X regulation on analogy to League of Women Voters), petition for cert. filed, 59 U.S.L.W. 3037 (U.S. June 8, 1990) (No. 89-1929) with New York v. Sullivan, 889 F.2d 401, 412-14 (2d Cir. 1989) (upholding the title X regulation on analogy to Taxation with Representation), cert. granted, 110 S. Ct. 2559 (1990).
170. 613 F.2d 931 (D.C. Cir. 1979).
171. Id. at 936.
172. See id. at 933, 936.
173. Id. at 936.
174. See id. at 935-36.
175. 454 U.S. 263 (1981).
176. The Court recently extended its reasoning to high school groups. See Board of Educ. v. Mergens, no S. Ct. 2356, 2372-73 (1990).
177. Widmar, 454 U.S. at 274.
178. Id. at 271.
179. See id. at 269.
180. See, e.g., Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 575-77 (1987); Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 652-53 (1981); Poulos v. New Hampshire, 345 U.S. 395 (1953); Fowler v. Rhode Island, 345 U.S. 67, 69 (1953); Kunz v. New York, 340 U.S. 290, 293 (1951); Niemotko v. Maryland, 340 U.S. 268, 272-73 (1951); Marsh v. Alabama, 326 U.S. 501, 504-05 (1946); Largent v. Texas, 318 U.S. 418, 422 (1943); Jamison v. Texas, 318 U.S. 413, 416-17 (1943); Cox v. New Hampshire, 312 U.S. 569, 578 (1941); Schneider v. State (Town of Livingston), 308 U.S. 147, 157-65 (1939); Lovell v. City of Griffin, 303 U.S. 444, 451 (1938). See generally Laycock, Equal Access and Moments of Silence: The Equal Status of Religious Speech by Private Speakers, 81 Nw. U.L. REV. 1, 9-35 (1986).
181. Webster v. Reproductive Health Servs., 109 S. Ct. 3040, 3052 (1989) (plurality opinion).
182. The same is not true for public employees who perform an abortion. The public employee imposes a marginal cost on the public and uses time which could have been used for other medical assistance.
183. Webster, 109 S. Ct. at 3052 (quoting Reproductive Health Serv. v. Webster, 851 F.2d 1071, 1083 (8th Cir. 1988)). This assumes that the hospital is not full. If it is full, the performance of the abortion would displace another medical procedure, which would impose a marginal cost.
184. Id.
185. Id. at 3052 n.8; cf. Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, 81 HARV. L. REV. 513, 522-23 (1968) (arguing that in a collectivist state, which owns and controls all resources, government "aid " to religion would be constitutionally required).
186. The issue may also be compared to the "state action " doctrine under the fourteenth amendment, where "liberal " Justices and commentators have tended to conclude more readily that various contacts between the government and ostensibly private institutions (financial assistance, presence on government property, and the like) require the attribution of private decisions to the government. See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1027-29 (1982) (Brennan, J., dissenting); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 362 (1974) (Douglas, J., dissenting); id. at 366-73 (Marshall, J., dissenting); Burton v. Wilmington Parking Auth., 365 U.S. 715, 721-26 (1961). Thus, there is irony in Justice Blackmun's complaint in Webster, joined by Justices Brennan and Marshall, that: by defining "public facility " as "any public institution, public facility, public equipment, or any physical asset owned, leased, or controlled by this state or any agency of political subdivision thereof, " . . . the Missouri statute prohibits the performance of abortions in institutions that in all pertinent respects are private, yet are located on property owned, leased, or controlled by the government. 109 S. Ct. at 3068 n.1 (Blackmun, J., concurring in part and dissenting in part) (quoting Mo. REV. STAT. § 188.200 (1986)).
187. Harris, 448 U.S. at 314 (quoting Maher v. Roe, 432 U.S. 464, 474 (1977)); see also Webster, 109 S. Ct. at 3052.
188. See supra pp. 1000-01.
189. 268 U.S. 510 (1925).
190. Id. at 535.
191. 262 U.S. 390 (1923).
192. See Arons, The Separation of School and State: Pierce Reconsidered, 46 HARV. EDUC. REV. 76, 77 (1976) (discussing the centrality of Pierce).
193. See Roe v. Wade, 410 U.S. 113, 153 (1973) (citing Pierce and Meyer as protecting "child rearing and education "); id. at 169 (Stewart, J., concurring) (citing Pierce and Meyer as protecting "personal choice in matters of marriage and family life ").
194. See supra pp. 994-96.
195. See Meyer, 262 U.S. at 401.
196. Id.
197. See id. at 402 (referring approvingly to "the State's power to prescribe a curriculum for institutions which it supports ").
198. Id. at 401.
199. 319 U.S. 624 (1943).
200. 110 S. Ct. 2404 (1990).
201. Id. at 2409; see also Gilbert v. Minnesota, 254 U.S. 325, 336-37 (1920) (Brandeis, J., dissenting) (arguing that government may not prohibit the teaching of pacifism, although it has the authority to promote the contrary view).
202. Sunstein, supra note 62, at 341.
203. Cf. Harris, 448 U.S. at 314 (stating that the state may prefer childbirth over abortion).
204. Professor Michael Perry's well-known article arguing that the Supreme Court was "plainly wrong " in the Hyde Amendment case, see Perry, supra note 24, appears to be predicated on the judgment that Roe limits governmental ends rather than governmental means: Once one concedes to government the authority to take action - any action (including a refusal to subsidize abortion), whether or not "unduly burdensome " - predicated on the view that abortion is per se morally objectionable, it necessarily follows . . . that a woman's interest in terminating her pregnancy is not only less weighty than government's interest in preventing abortion, but that it is not constitutionally protected at all - that it has no constitutional status. Id. at 1117-18 (emphasis in original). Professor Perry does not explain from whence this principle derives, though his analogies to other constitutional areas, including free speech, see id. at 1118-20, suggest that it is not a peculiarity of Roe. Unless the examples I have discussed (Pierce, Meyer, Eichman, Bob Jones) were wrongly decided, it is simply not true that the government necessarily lacks the power to attempt in non-coercive ways to discourage constitutionally protected behavior that the government views as immoral, unpatriotic, distasteful, or unhealthy. It would not follow, for example, that just because "hate speech " is constitutionally protected, a public university would be foreclosed from taking "action - any action " to discourage it. Without this unsupportable assumption, Perry's argument fails.
205. See, e.g., Webster v. Reproductive Health Servs., 109 S. Ct. 3040, 3077 (1989) (Blackmun, J., concurring in part and dissenting in part) (describing anti-abortion legislation as "conscrip[ing] a woman's body "); Tribe, supra note 27, at 337 (suggesting there is a "strong parallel between a woman's right not to remain pregnant and every person's inalienable right not to be enslaved ").
206. Thomson, A Defense of Abortion, 1 PHIL. & PUB. AFF. 47 (1971).
207. See Regan, Rewriting Roe v. Wade, 77 MICH. L. REV. 1569, 1571-1610 (1979) (applying good samaritan law to the abortion context).
208. Indeed, Professor Tribe devotes a section of his article against Harris to the proposition that the government should (and may have a constitutional duty to) protect the unborn in ways that do not invade the freedom of their mothers. See Tribe, supra note 27, at 340-43.
209. This would require reconsideration of portions of City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 443-44 (1983).
210. Likewise, this would require reconsideration of Akron. See id. at 449-51.
211. That is, Lemon's implicit rejection of the free exercise claim was right; the anti-coercion rationale does not support the establishment clause holding in the case.
212. For elaboration of this equal protection approach to abortion rights, see, for example, C. MACKINNON, FEMINISM UNMODIFIED 93-102 (1987); L. TRIBE, supra note 22, § 15-10, at 1353-56; Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C.L. REV. 375, 382-86 (1985); Karst, The Supreme Court, 1976 Term - Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 57-59 (1977); Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 1016-28 (1984); and Olsen, The Supreme Court, 1088 Term - Comment: Unraveling Compromise, 103 HARV. L. REV. 105, 117-26 (1989).
213. For elaboration of this equal protection approach to abortion rights, see, for example, C. MACKINNON, FEMINISM UNMODIFIED 93-102 (1987); L. TRIBE, supra note 22, § 15-10, at 1353-56; Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C.L. REV. 375, 382-86 (1985); Karst, The Supreme Court, 1976 Term - Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 57-59 (1977); Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 1016-28 (1984); and Olsen, The Supreme Court, 1088 Term - Comment: Unraveling Compromise, 103 HARV. L. REV. 105, 117-26 (1989).
214. For elaboration of this equal protection approach to abortion rights, see, for example, C. MACKINNON, FEMINISM UNMODIFIED 93-102 (1987); L. TRIBE, supra note 22, § 15-10, at 1353-56; Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C.L. REV. 375, 382-86 (1985); Karst, The Supreme Court, 1976 Term - Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 57-59 (1977); Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 1016-28 (1984); and Olsen, The Supreme Court, 1088 Term - Comment: Unraveling Compromise, 103 HARV. L. REV. 105, 117-26 (1989).
215. For elaboration of this equal protection approach to abortion rights, see, for example, C. MACKINNON, FEMINISM UNMODIFIED 93-102 (1987); L. TRIBE, supra note 22, § 15-10, at 1353-56; Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C.L. REV. 375, 382-86 (1985); Karst, The Supreme Court, 1976 Term - Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 57-59 (1977); Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 1016-28 (1984); and Olsen, The Supreme Court, 1088 Term - Comment: Unraveling Compromise, 103 HARV. L. REV. 105, 117-26 (1989).
216. See Tribe, supra note 27, at 330-35.
217. Id. at 332-33.
218. Id. at 333.
219. Id.
220. Id. at 333-34.
221. Id. at 333 n. 14.
222. See id. at 333-34 & n.15.
223. See supra pp. 1006-11.
224. See H. RODMAN, B. SARVIS & J. BONAR, THE ABORTION QUESTION 141-43 (1987). For corroborating data, see the National Opinion Research Center of the University of Chicago, General Social Survey cumulative data file (1972-1989).
225. 417 U.S. 484(1974).
226. See Strauss, Discriminatory Intent and the Taming of Brown, 56 U. CHI. L. REV. 935, 993 (1989).
227. Congress reversed the result in Geduldig by passing the Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076 (codified at 42 U.S.C. 2000(k) (1988)).
228. See supra p. 1041.
229. Professor Catharine MacKinnon has observed: Under conditions in which women do not control access to our sexuality, [abortion] facilitates women's heterosexual availability. In other words, under conditions of gender inequality, sexual liberation in this sense does not free women, it frees male sexual aggression. The availability of abortion thus removes the one remaining legitimized reason that women have had for refusing sex besides the headache. As Andrea Dworkin puts it, analyzing male ideology on abortion: "Getting laid was at stake. " MacKinnon, supra note 53, at 51 (quoting A. DWORKIN, RIGHT WING WOMEN 98-99 (1983)).
230. See id.
231. See Callahan, Value Choices in Abortion, in ABORTION: UNDERSTANDING DIFFERENCES 285 (S. Callahan & D. Callahan eds. 1984); Amicus Curiae Brief of Feminists for Life of America, Webster (No. 88-605).
232. See Developments in the Law - Religion and the State, 100 HARV. L. REV. 1607, 1648 n-38 (1987) (comparing feminist jurisprudence to a focus on minority religions under the first amendment).
233. For a review and assessment of these strands of feminist equal protection theory, see Becker, Prince Charming: Abstract Equality, 1987 SUP. CT. REV. 201, 228-37.
234. See C. GLENN, THE MYTH OF THE COMMON SCHOOL 146-78, 205-06 (1988); C. KAESTLE, PILLARS OF THE REPUBLIC: COMMON SCHOOLS AND AMERICAN SOCIETY, 1780-1860, at 75-103 (1983); J. SARNA, AMERICAN JEWS AND CHURCH-STATE RELATIONS 18-25 (1989); see also Lott, An Explanation for Public Provision of Schooling: The Importance of Indoctrination, 33 J.L. & ECON. 199 (1990) (arguing that indoctrination is the primary purpose of public education).
235. See C. GLENN, THE MYTH OF THE COMMON SCHOOL 146-78, 205-06 (1988); C. KAESTLE, PILLARS OF THE REPUBLIC: COMMON SCHOOLS AND AMERICAN SOCIETY, 1780-1860, at 75-103 (1983); J. SARNA, AMERICAN JEWS AND CHURCH-STATE RELATIONS 18-25 (1989); see also Lott, An Explanation for Public Provision of Schooling: The Importance of Indoctrination, 33 J.L. & ECON. 199 (1990) (arguing that indoctrination is the primary purpose of public education).
236. See C. GLENN, THE MYTH OF THE COMMON SCHOOL 146-78, 205-06 (1988); C. KAESTLE, PILLARS OF THE REPUBLIC: COMMON SCHOOLS AND AMERICAN SOCIETY, 1780-1860, at 75-103 (1983); J. SARNA, AMERICAN JEWS AND CHURCH-STATE RELATIONS 18-25 (1989); see also Lott, An Explanation for Public Provision of Schooling: The Importance of Indoctrination, 33 J.L. & ECON. 199 (1990) (arguing that indoctrination is the primary purpose of public education).
237. See C. GLENN, THE MYTH OF THE COMMON SCHOOL 146-78, 205-06 (1988); C. KAESTLE, PILLARS OF THE REPUBLIC: COMMON SCHOOLS AND AMERICAN SOCIETY, 1780-1860, at 75-103 (1983); J. SARNA, AMERICAN JEWS AND CHURCH-STATE RELATIONS 18-25 (1989); see also Lott, An Explanation for Public Provision of Schooling: The Importance of Indoctrination, 33 J.L. & ECON. 199 (1990) (arguing that indoctrination is the primary purpose of public education).
238. Common School J., Jan. 1, 1846, at 15 (authored by Horace Mann), quoted in C. GLENN, supra note 212, at 171-72. While opposing introduction of what he called "sectarian instruction or sectarian books " into the public schools, H. MANN, FOURTH ANNUAL REPORT OF THE SECRETARY OF THE BOARD 59 (1841), quoted in C. GLENN, supra note 212, at 164, Mann claimed that "[m]oral training, or the application of religious principles to the duties of life, " should be the "inseparable accompaniment " to education. H. MANN, NINTH ANNUAL REPORT OF THE SECRETARY OF THE BOARD 157 (1846), quoted in C. GLENN, supra note 212, at 165. "Nonsectarian " religious education "was in reality nondenominational Protestantism. " D. RAVITCH, THE GREAT SCHOOL WARS 9 (1974); accord C. GLENN, supra note 212, at 132.
239. The virulence of anti-Catholic feeling during this period is difficult for a person of today to imagine. For historical accounts, see S. AHLSTROM, A RELIGIOUS HISTORY OF THE AMERICAN PEOPLE 558-63, 852-54 (1972); R. BILLINGTON, THE PROTESTANT CRUSADE 1800-1860, at 345-79 (1938); and M. SCHWARTZ, THE PERSISTENT PREJUDICE: ANTI-CATHOLICISM IN AMERICA 38-101 (1984). Prominent works contending that Catholicism is antithetical to American values include L. BEECHER, PLEA FOR THE WEST 66-68 (1835); J. STRONG, OUR COUNTRY: ITS POSSIBLE FUTURE AND ITS PRESENT CRISIS 46-59 (1885); and R. THOMPSON, THE PAPACY AND THE CIVIL POWER 56-59 (1876). The anti-Catholic political movement included such notables as Presidents Grant and Hayes and presidential candidate James G. Blaine, all of whom made denial of funding to parochial schools a major part of their political programs. See D. RAVITCH, supra note 213; M. SCHWARTZ, supra, at 66-70.
240. See C. MOONEY, BOUNDARIES DIMLY PERCEIVED: LAW, RELIGION, EDUCATION, AND THE COMMON GOOD 52 (1990) ( "[Public schools] represented not a secularizing influence but a patriotic and civilizing influence, into which the Protestants who controlled them could inject the teachings, practices, and especially the morality of the mainline churches. "); Dolan, Freedom of Religion and American Catholicism, in FREEDOM OF RELIGION IN AMERICA 67, 68 (H. Clark ed. 1982) ( "Highly moral in purpose and visibly religious in practice, public education was schooling in a sectarian Protestant value system. "); see also C. GLENN, supra note 212, at 146-78 (discussing the influence of Protestant beliefs and practices over public education); J. SARNA, supra note 212, at 18-25 (same).
241. See C. MOONEY, BOUNDARIES DIMLY PERCEIVED: LAW, RELIGION, EDUCATION, AND THE COMMON GOOD 52 (1990) ( "[Public schools] represented not a secularizing influence but a patriotic and civilizing influence, into which the Protestants who controlled them could inject the teachings, practices, and especially the morality of the mainline churches. "); Dolan, Freedom of Religion and American Catholicism, in FREEDOM OF RELIGION IN AMERICA 67, 68 (H. Clark ed. 1982) ( "Highly moral in purpose and visibly religious in practice, public education was schooling in a sectarian Protestant value system. "); see also C. GLENN, supra note 212, at 146-78 (discussing the influence of Protestant beliefs and practices over public education); J. SARNA, supra note 212, at 18-25 (same).
242. See C. GLENN, supra note 212, at 219-34; J. HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM 1860-1925, at 28-29, 59-60 (1955). The laws struck down in Pierce and Meyer were products of this movement.
243. See supra p. 1013.
244. Cf. McGowan v. Maryland. 366 U.S. 420, 444 (1961) (upholding Sunday closing laws on the ground that they now have secular justifications even though their origins were religious).
245. See generally R. NAGEL, CONSTITUTIONAL CULTURES 22-26 (1989) (defending a restrained judicial role).
246. Becker, supra note 211, at 247; see also C. MACKINNON, supra note 193, at 40 (arguing that the "task [of the feminist analysis] is not to formulate abstract standards that will produce determinate outcomes in particular cases ").
247. See, e.g., Marshall, supra note 28, at 244; Sunstein, supra note 21, at 609-10, 615-20; Sunstein, supra note 62, at 339-44.
248. Sunstein, supra note 21, at 595.
249. Sunstein, supra note 62, at 343.
250. Id.
251. Sunstein, supra note 21, at 595.
252. Seidman, Reflections on Context and the Constitution, 73 MINN. L. REV. 73, 76 (1988).
253. Id.
254. Id. at 82.
255. Id. at 84.
256. See, e.g., South Dakota v. Dole, 483 U.S. 203 (1987) (Rehnquist, C.J.); Arnett v. Kennedy, 416 U.S. 134 (1974) (plurality opinion) (Rehnquist, J.).
257. See, e.g., Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 601-02 (1926) (Holmes, J., dissenting); Western Union Tel. Co. v. Kansas, 216 U.S. 1, 52-53 (1910) (Holmes, J., dissenting); Commonwealth v. Davis, 162 Mass. 510, 511, 39 N.E. 113, 113 (1895) (Holmes, J.), aff'd, 167 U.S. 43 (1897).