Article by Basile J. Uddo
Roe v. Wade and Doe v. Bolton, decided by the Supreme Court in 1973, effectively nullified as unconstitutional the antiabortion laws of all fifty states. The public and scholarly reactions to those opinions were tumultuous and, for the most part, highly critical of the Court. But, for all that those opinions did to frustrate the historical protection of the unborn child, their constitutional and methodological infirmities necessarily left unanswered a broad spectrum of abortion related questions. Predictably, there have been many subsequent attempts to legislate and regulate consistent with the hazy holdings of the abortion cases. These demonstrably legitimate attempts to reconcile the states' remaining police power in the area with the Roe and Doe decisions have been met with an unfortunate hostility in the lower federal courts.
This current phenomenon of consistently pro-abortion results in the lower federal courts is uncomfortably similar to the anti-union bias expressed by these same courts during this country's struggle toward unionization in the early part of the twentieth century. Then, the problem loomed so large that Congress finally stemmed the tide by enacting the Norris-LaGuardia Act, a bill seriously restricting federal court jurisdiction in labor disputes, with special emphasis on the dreaded labor injunction. The time has come for Congress to recognize a similar problem in the area of abortion litigation and to take steps to remove abortion cases from the jurisdiction of the lower federal courts.
The ensuing discussion will focus on three major points: first, the power vel non of Congress to legislate in this area; second, the propriety of treating the labor context as a valid paradigm for the suggested action; and third, the problem of the federal courts' treatment of abortion legislation and the need for congressional intervention.
About the Author
Basile J. Uddo. Associate Professor of Law, Loyola University School of Law, New Orleans, Louisiana. B.B.A. 1970, Loyola University; J.D. 1973, Tulane University; L.L.M. 1974, Harvard University.
Citation
53 Tul. L. Rev. 398 (1979)