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The Grove City case, for example, decided last February, must have been a powerful lesson to the Court on how dangerous it is to buck that vision, even modestly. Grove City College, one of a handful of private colleges that have steadfastly refused to partake of federal education subsidies, insisted that it could not be required to comply with a 1972 law prohibiting sex discrimination in “any education program or activity receiving federal financial assistance.” The Court endorsed the Justice Department’s claim that so long as some student at the college received federal student loan funds, Grove City’s entire scholarship program must be considered a “recipient” of federal assistance, subject to the regulations on sex discrimination. But a majority also agreed with the Justice Department that all operations of the college as a whole could not fairly be considered a “program or activity receiving federal assistance” and the rest of the college could therefore be exempt from the regulations.
Feminist groups furiously denounced the Court’s decision and within three months liberal Democrats in the House of Representatives had whipped through a bill imposing the full panoply of “nondiscrimination” requirements on all aspects of any institution receiving even small, indirect federal assistance. This was an extreme response, especially given the extreme interpretation of “sex discrimination” adopted by the regulations — which seem to require, for example, that schools provide abortion services if they provide any other health facilities. No female student at (or applicant to) Grove City College had ever complained of sex discrimination there. Yet to satisfy feminist demands for a pure society, Congress was prepared to say that, if a young woman (or man) chooses to attend a school with some separate activities for men and women, she (or he) must be punished with denial of federal student loans. Very few conservatives in Congress dared to speak out for a narrower approach.
Hard as it may be, though, the Court has an obligation to resist this trend toward “social rights,” legal claims to a satisfying environment or a reassuring atmosphere. It is not merely a burden on liberty and diversity. Sometimes it can be quite sinister in its implications, as the Court itself illustrated in its decisions last year on abortion rights. Ten years ago, when the Court first discovered a right to abortion in the Constitution, its reasoning was based on a presumptuous non sequitur, but one which at least paid verbal respect to the moral qualms of abortion opponents. There is no agreement on when “life” begins in fetal development, the Court held in Roe v. Wade, and therefore (!?!) the state may not prevent the mother from terminating this possible life until the last stages of pregnancy. Plainly exasperated that this Solomonic decision failed to end charged public debate on the morality of abortion, the Court last year lashed out at a series of minor restrictions on access to abortion. In the Akron case, the Court even found unconstitutional a municipal ordinance requiring doctors to wait one day before performing a requested abortion. Plainly what the Court objected to in this ordinance was its implication that abortion is an act of great moral gravity, not to be undertaken lightly. The Court has never hinted at any constitutional difficulty with comparable state-imposed waiting periods before couples may marry or divorce (or unions may strike). But in the case of abortion, even a one day pause for reflection between the impulse and the act was too much for the Court. It might promote an uncomfortable atmosphere.
Indeed, in the same term the Court itself followed out the grim logic of this insistence on a state posture of rigid moral indifference toward the “right to life.” Two years ago, a new-born infant in Indiana was allowed to starve to death when his parents refused to authorize a minor surgical procedure to save him. Hospital officials sought a court order to save him but the state courts rejected all appeals, even the very minimal plea that the court appoint an official legal advocate for the baby. And the Supreme Court rejected the effort to bring this case before it. In the recent past, it has found that the Constitution requires a due process hearing before an unruly student can be suspended from school or an infraction-prone driver can have his license revoked. But the Court could not find room in its schedule even to consider whether a malformed infant had a right to a fair hearing before being starved to death. Perhaps the Court had other reasons, but it is hard to avoid the suspicion that it did not want this terrible case to receive more publicity lest it strengthen the claim of “right-to-life” groups that moral indifference to abortion would soon lead to moral indifference to infanticide. That might create an uncomfortable atmosphere.
Once again, it must be said, a large portion of liberal political activists support and demand this strange set of priorities. Judging from its reactions to the Grove City case, on the one hand, and the regulations and subsequent legislation to protect handicapped infants, on the other, the New York Times does indeed seem to regard federal power as more appropriately extended (and far more urgently needed) to prevent women’s athletic teams from being underfunded than handicapped infants from being starved to death. Perhaps they are jumping to wild conclusions, those right-to-life advocates who warn that enthusiasm for a planned society inevitably leans toward experimentation with eugenics and euthanasia, towards ridding society of the unplanned, undesirables. But surely there would be less resort to such wild speculation if the Supreme Court provided more assurance that fundamentals will always be safeguarded. There is a reason why the Constitution contains guarantees of life, liberty, and property — and none for a satisfying or comfortable social environment.
The latest term of the Supreme Court does not offer much ground for hope that the Court has come back to fundamentals. It does suggest that it will require more than a few new appointments to the Court in the next few years to bring it around.
Jeremy Rabkin is assistant professor of government at Cornell University. This article inaugurates an American Spectator department on constitutional issues, to feature Mr. Rabkin and William Kristol of Harvard’s Kennedy School.
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H/T to National Review Online