TESTIMONY OF UNITED STATES
CATHOLIC CONFERENCE
ON CONSTITUTIONAL AMENDMENT
PROTECTING UNBORN HUMAN LIFE
BEFORE THE SUB-COMMITTEE ON
CONSTITUTIONAL AMENDMENTS
OF THE SENATE COMMITTEE
ON THE JUDICIARY
March 7, 1974
On repeated occasions during the past ten years the National Conference of
Catholic Bishops has spoken on the security of life, the right of each
individual to life, and on the morality of abortion. Perhaps the most succinct
expression of these repeated statements is contained in the Second Vatican
Council's Pastoral Constitution on the Church in the Modern World, addressed to
all mankind:
"For God, the Lord of life, has conferred on men the surpassing
ministry of safeguarding life - a ministry which must be fulfilled in a
manner which is worthy of man. Therefore from the moment of its conception
life must be guarded with the greatest care, while abortion and infanticide
are unspeakable crimes. [no. 51]
"Furthermore, whatever is opposed to life itself, such as any type of murder,
genocide, abortion, euthanasia, or willful self-destruction, whatever violates
the integrity of the human person, such as mutilation, torments inflicted on
body or mind, attempts to coerce the will itself; whatever insults human
dignity, such as sub-human living conditions, arbitrary imprisonment,
deportation, slavery, prostitution, the selling of women and children; as well
as disgraceful working conditions, where men are treated as mere tools for
profit, rather than as free and responsible persons; all these things and others
of their like are infamies indeed. They poison human society, but they do more
harm to those who practice them than those who suffer from the injury. Moreover,
they are a supreme dishonor to the Creator." [no. 27]
These statements of the Council, and the many that have been issued by
the National Conference of Catholic Bishops, have enunciated two central
themes:
1. The right to life is a basic human right which should be protected by law.
2. Abortion, the deliberate destruction of an unborn human being
1, is contrary to the law of God and is a morally evil act.
In regard to the first point, the right to life is a basic human right,
proclaimed as such by the Declaration of Independence and Constitution of the
United States, and also by the United Nations Declaration of Human Rights. But
human life cannot be considered merely as an abstract notion, for human life
always exists in a human being. Thus, it is the life of each specific,
individual human being that must be protected and sustained, and the
responsibility falls equally on society and on individual persons within
society.
As for the second point, we wish to make it clear that we are not seeking to
impose the Catholic moral teaching regarding abortion on the country. In our
tradition, moral teaching bases its claims on faith in a transcendent God and
the pursuit of virtue and moral perfection. In fact, moral teaching may
frequently call for more than civil law can dictate, but a just civil law cannot
be opposed to moral teaching based on God's law. We do not ask the civil law to
take up our responsibility of teaching morality, i.e., that abortion is morally
wrong. However, we do ask the government and the law to be faithful to its own
principle -- that the right to life is an inalienable right given to everyone by
the Creator.
We also reject the argument that opposition to abortion is simply a Catholic
concern. The state abortion laws of the 19th century, although highly
prohibitive, did not represent Catholic morality.2
The proposed statute of the American Law Institute, a model on which some state
laws were revised in recent years, did not represent Catholic morality. The
rejection of liberal abortion laws in North Dakota and Michigan, by 78 and 62
percent vote of the people in a public referendum, cannot be attributed to
Catholic moral teaching, since in both states the Catholic population is less
than 30 percent.
Furthermore, in a religiously pluralistic society, government is not expected
to formulate laws solely on the basis of the religious teaching of any
particular Church. In the formulation of law, though, it is appropriate that the
convictions of citizens, and the principles from which they are derived, be
taken into consideration. There are certain principles of morality taught by the
various Churches that are part and parcel of the legal tradition of American
society. In our country, religious leaders are increasingly compelled to present
a moral argument in regard to legislation. Such was the case in regard to civil
rights, to anti-poverty legislation, and to other instances of the violation of
human rights.
The abortion decision is a complex web of many factors -- social, personal,
cultural, emotional, religious, etc. In its opinions in Roe v. Wade and Doe v.
Bolton, the Court overstepped its authority and made some apodictic moral
pronouncements. Morality was definitely imposed; the Court's own morality --
based on inaccuracy and error. That the Supreme Court would presume to usurp the
role of moralists and ethicians is telling cause for moral teachers to clearly
articulate their position -- that is, their reasons and the bases of their
reasons for legally protecting the unborn.
We appear here today in fulfillment of our considered responsibility to speak
in behalf of human rights. The right to life -- which finds resonance in the
moral and legal tradition -- is a principle we share with the society and the
one that impels us to take an active role in the democratic process directed
toward its clear and unequivocal articulation.
The Supreme Court of the United States has denied protection of the right to
life to the unborn, and the most realistic way to reverse that decision of the
Court is to amend the Constitution of the United States. Thus, we place before
this Committee our testimony in behalf of an amendment that will establish that
the unborn child is a person and is entitled by law to the protection of the
inalienable right to life, a right accorded by the Constitution to every human
being in this nation.
In this testimony we wish to address the following points:
I. The Human Dignity of the Unborn Child.
II. The Protection of Human Rights in Law.
III. The Right to Life of the Unborn in the Context of
American Law.
IV. A Review of the Court's Opinions in Roe v. Wade
and Doe v. Bolton.
V. Proposal for a Constitutional Amendment.
VI. Conclusion.
I. THE HUMAN DIGNITY OF THE UNBORN CHILD
Newly conceived human life should be reverenced as a gift from God and from
nature. The dignity of the unborn child is neither conferred nor taken away by
any man or woman or by any government or society. That dignity is rooted in an
objective individuality that inherently tends toward the openness and
transcendence men commonly call personhood.
The developing unborn child has increasingly been an object of study of a
variety of empirical sciences, such as genetics, biology and fetology. The
scientific evidence thereby accumulated should form an integral part of the
human assessments that any man or any government makes regarding the reality and
worth of the unborn child.
Life's Beginnings
It is an accepted biological fact that human life begins at
fertilization. Subsequent to the Supreme Court's abortion decisions the
noted fetologist, Dr. Landrum B. Shettles,3
submitted a public letter to the New York Times (February 14, 1973)
in which he accused the Supreme Court of denying the truth about when life
begins. The doctor stated in part:
"Concerning when life begins, a particular aggregate of hereditary
tendencies (genes and chromosomes) is first assembled at the moment of
fertilization when an ovum (egg) is invaded by a sperm cell. This restores
the normal number of required chromosomes, 46, for survival, growth, and
reproduction of a new composite individual.
"By this definition a new composite individual is started at the moment of
fertilization. However, to survive, this individual needs a very specialized
environment for nine months, just it requires sustained care for an indefinite
period after birth. But from the moment of union of the germ cells, there is
under normal development a living, definite, going concern. To interrupt a
pregnancy at any stage is like cutting the link of a chain; the chain is broken
no matter where the link is cut. Naturally, the earlier a pregnancy is
interrupted, the easier it is technically, the less the physical, objective
encounter. To deny a truth should not be made a basis for legalizing abortion."
Such conclusions, the doctor noted, were based "on twenty years' work in
this field, apart from any known religious influence."
The Supreme Court has ruled that the unborn child does not deserve the full
protection of society's laws until the time of birth. Yet, some years ago Life
magazine, in a special feature on the unborn child, stated:
"The birth of a human life really occurs at the moment the mother's
egg cell is fertilized by one of the father's sperm cells."4
The remarkable advances in modern times in the sciences of embryology,
fetology and genetics have dispelled many ancient falsehoods about the
nature of life in the womb -- that in its early stages of development the
embryonic human life possesses an inert plant-like character, or that the
male sperm determines the make-up of the child while the mother only
passively nurtures the child, or that male children develop faster than
female children, etc.
Dr. H .M. I. Liley, the New Zealand pediatrician,5
has cogently expressed the marked effect the advances in biology have had
on the traditional notions of life in the womb:
"Because the fetus is benignly protected, warmed and nourished within
the womb, it was long thought that the unborn must have the nature of a
plant, static in habit and growing only in size. Recently through modern
techniques of diagnosing and treating the unborn baby, we have discovered
that little could be further from the truth.
"The fluid that surrounds the human fetus at 3, 4, 5 and 6 months is
essential to both its growth and its grace. The unborn's structure at this early
stage is highly liquid, and although his organs have developed, he does not have
the same relative bodily proportions that a newborn baby has. The head, housing
the miraculous brain, is quite large in proportion to the remainder of the body
and the limbs are still relatively small. Within his watery world, however
(where we have been able to observe him in his natural state by closed circuit
x-ray television set), he is quite beautiful and perfect in his fashion, active
and graceful. He is neither an acquiescent vegetable nor a witless tadpole as
some have conceived him to be in the past, but rather a tiny human being as
independent as though he were lying in a crib with a blanket wrapped around him
instead of his mother."6
Evidence from Genetics
Genetics tells us that at fertilization a new human individual begins. A
standard text book on genetics gives the following technical explanation:
"A human being originates in the union of two gametes, the ovum and
the spermatozoon. These cells contain all that the new individual inherits
organically from his or her parents. The hereditary potentialities present
in the fertilized ovum are unfolded, as cell divisions succeed each other,
in an environment first prenatal and then postnatal, free to vary at all
stages within narrow or wide limits. The child, and finally the adult, is
what he is at any time during his existence because of the hereditary
constitution which he originally received, and the nature of the environment
in which he has existed up to that time."7
The newly conceived life is human because it is from human parents and it
is alive in a distinctively human way because, unlike the sperm and ova
that, unfertilized, necessarily die, the fertilized ovum has the ability
from within itself to reproduce itself and, if no untoward events occur, it
will develop through the various embryonic and fetal stages to birth. The
fertilized ovum represents a full human genetic package of 46 chromosomes.
While half of these chromosomes is derived from each of the parents, the
newly conceived life differs genetically from its parents as a unique
combination of genes.
Biologically every living being is assigned to only one species, e.g.,
Homo sapiens, regardless of its developmental stage. Such species
differentiations are genetically determined. "Its [a living being's] designation
[to a species] is determined not by the stage of development, but by the sum
total of its biological characteristics -- actual and potential -- which are
genetically determined. However, if we say it [the fetus] is not human, i.e.,. a
member of Homo sapiens, we must say it is of another species. But this
cannot be." 8
The mysteries of life being revealed to us by genetics should not be
underestimated. We are told that a single thread of DNA (Deoxyribonucleic
acid, the chemical material of which the information-carrying material or
genes are composed) from a human cell contains information equivalent to six
hundred thousand printed pages with five hundred words on a page. Such
stored information at conception has been estimated to be fifty times more
than that contained in the Encyclopedia Britannica.9
Dr. Hymie Gordon, Chief Geneticist at the Mayo Clinic, comments on the
genetic facts:
". . . . from the moment of fertilization, when the deoxyribose
nucleic acids from the spermatozoon and the ovum come together to form the
zygote, the pattern of the individual's constitutional development is
irrevocably determined; his future health, his future intellectual
potential, even his future criminal proclivities are all dependent on the
sequence of the purine and pyrimidine bases in the original set of DNA
molecules of the unicellular individual. True, environmental influences both
during the intra-uterine period and after birth modify the individual's
constitution and continue to do so right until his death, but it is at the
moment of conception that the individual's capacity to respond to these
exogenous influences is established. Even at that early stage, the
complexity of the living cell is so great that it is beyond our
comprehension. It is a privilege to be allowed to protect and nurture it."10
The wonder evoked by life's beginnings does not abate during the
subsequent development of the unborn child. Fertilization is followed by
three basic biological activities: cell division, growth, and systematic and
orderly differentiation of the various parts of the embryo to form the organ
systems.11
Scientists and researchers caution that our empirical knowledge
regarding the world of the developing child is dependent upon the scientific
methods and accumulated results of today.12 The
data is fragmentary. Nonetheless, we can anticipate greater and not less
empirical verification of the humanity of the unborn child in the future. As
the fetologist, A. W. Liley notes, "Most of our studies of foetal behavior
have been later in pregnancy, partly because we lack techniques for
investigation earlier and partly because it is only the exigencies of late
pregnancy which provide us with opportunities to invade the privacy of the
foetus." 13
The traditional understanding of the fetus as a "passive, dependent,
nerveless, fragile vegetable," 14 is
understandable because the only serious students of the fetus were
embryologists and physicians concerned with childbirth. "The accoucher was
concerned primarily with mechanical problems in delivery, so that the only
aspects of the foetus which mattered were the presenting part and its
diameters in relation to the diameters of the birth canal . . . . The
embryologists studied dead, static tissue and attempted to deduce function
from structure . . . ."15
The question of scientific methodology reaches to the question of
prejudice and misconception. The humanity of the unborn child is sometimes
demeaned with abusive descriptive terms.16 The
distinctly human features of the unborn child possess an alien character as
compared to the comfortable and familiar world of the adult. From the
perspective of the various scientific disciplines Dr. A. W. Liley remarks:
". . . In the present century, many disciplines have extended their
interests to include the foetus, but in fields from surgery to psychiatry
the tendency has been to start with adult life and work backwards -- knowing
what the adult state was, one worked back to what seemed a reasonable
starting point to reach that goal. Therefore, in fields from physiology and
biochemistry to education and psychology, there has grown up the habit of
regarding the foetus and the neonate as a poorly functioning adult rather
than as a splendidly functioning baby."17
Early Fetal Development
From fertilization the child is a complex, dynamic, rapidly growing
individual. At seven to nine days after fertilization implantation in the
uterine wall begins.18 By the end of the first
month the child has completed the period of relatively greatest size
increase and physical change of a lifetime. A primary brain is present and
the heart, though incomplete, is pumping the child's own blood with a
regular pattern.
From the beginning of the second month the external features of the child
take on distinctly human appearances. As one commentator states:
"By the end of the seventh week we see a well-proportioned small-scale
baby. In its seventh week, it bears the familiar external features and all
the internal organs of the adult, even though it is less than an inch long
and weighs only 1/30th of an ounce. The body has become nicely rounded,
padded with muscles and covered by a thin skin. The arms, only as long as
printed exclamation marks, have hands with fingers and thumbs. The slower
growing legs have recognizable knees, ankles and toes [references cited].
Shettles and Rugh describe the child at this point of its development as a
one-inch miniature doll with a large head, but gracefully formed arms and
legs and an unmistakably human face [reference cited]."19
The brain is now sending out impulses that coordinate the function
of the other organs. Reflex responses are present as early as forty-two
days. The brain waves have been noted (EEG) at forty-three days.
After the eighth week no further primordia will form. Until adulthood,
when full growth is achieved somewhere between twenty-five and twenty-seven
years, the changes in the body will be mainly growth and gradual
refinement of working parts.20
In recent years a variety of photographs have visually documented the
human development of the unborn child. The most famous of these are the
Nilsson photos.21 However, such photos,
striking evidence that they are, are generally pictures of embryos and
fetuses that have died. The eight week old fetus presents an unmistakable
human being with blunt features and extremities.22
As Dr. Paul E. Rockwell, Director of Anesthesiology at Leonard Hospital in
Troy, New York reports, a fetus of eight weeks, while actually alive,
appears to be perfectly developed. It is death which superimposes the
bluntness of appearances.
"Eleven years ago while giving an anesthetic for a ruptured ectopic
pregnancy (at two months gestation) I was handed what I believe was the
smallest living human being ever seen. The embryo sac was intact and
transparent. Within the sac was a tiny (approx. 1 cm.) human male swimming
extremely vigorously in the amniotic fluid, while attached to the wall by
the umbilical cord. This tiny human was perfectly developed, with long,
tapering fingers, feet and toes. It was almost transparent, as regards the
skin, and the delicate arteries and veins were prominent to the ends of the
fingers.
"The baby was extremely alive and swam about the sac approximately one time
per second, with a natural swimmer's stroke. This tiny human did not look at all
like the photos and drawings and models of 'embryos' which I have seen, nor did
it look like a few embryos I have been able to observe since then, obviously
because this one was alive!
". . . When the sac was opened, the tiny human immediately lost its life and
took on the appearance of what is accepted as the appearance of an embryo at
this age (blunt extremities, etc.)."23
The Life of the Unborn Child
The notion that the developing child is part of the mother like the
tissue of a maternal organ has been thoroughly disproven. The unborn child
is not only independently alive, growing and active, but it is now thought
to be "very much in command of the pregnancy."24
Perhaps even from the preimplantation stage,25
the fetus guarantees the endocrine success of pregnancy, and thereby induces
all manner of change in maternal physiology to make the mother a suitable
host, e.g., stops menstrual flow so that blastocyst can implant in the
uterine wall. The fetus single handedly solves the homograph problem;
determines the length of pregnancy; determines which way he will lie in
pregnancy (seeks position of comfort) and which way he will present in
labor; and he is not entirely passive in labor.26
The fetus exhibits a complex of behavioral characteristics. The fetus
demonstrates a cyclic pattern of drowsiness and activity; is responsive to
pressure and touch; evidences pleasurable and bitter taste reactions;
swallows, an activity which probably provides nourishment; sucks his thumb;
responds to external light; is startled by sudden noises. The fetus also
exhibits pain responses. Dr. A. W. Liley comments:"
"The foetus responds with violent movement to needle puncture and to the
intramuscular or intraperitoneal injection of cold or hypertonic solutions.
Although we would accept, rather selfishly, that these stimuli are painful
for adults and children and, to judge from his behaviour painful for the
neonate, we are not entitled, I understand, to assert that the foetus feels
pain. In this context I think Bertrand Russell's remark in his Human
Knowledge, its Scope and Limitations rather apt -- he relates 'A fisherman
once told me that fish have neither sense nor sensation but how he knew this
he could not tell me.' It would seem prudent to consider at least the
possibility that birth is a painful experience for a baby. Radiological
observation shows foetal limbs flailing during contractions and if one
attempts to reproduce in the neonate by manual compression a mere fraction
of the cranial deformation that may occur in the course of a single
contraction the baby protests very violently. And yet, all that has been
written by poets and lyricists about cries of newborn babies would suggest
that newborn babies cried for fun or joie de vivre -- which they never do
afterwards -- and in all the discussions that have ever taken place on pain
relief in childbirth only maternal pain has been considered."27
The fetus begins moving limbs and trunk from about eight weeks.
However, it is normally not until the 16-22 week period before the mother
perceives such movement. Historically this phenomenon has been called
"quickening," and it was identified as the time at which the fetus becomes
an independent human being possessed of a soul. It is now apparent that
"quickening" is a function of maternal perceptions. "Quickening is a
maternal sensitivity and depends on the mother's own fat, the position of
the placenta and the size and strength of the unborn child."
28
In a speech at a medical convention Dr. Liley, addressing the question
of the personality of the fetus, stated:
". . . We may not all live to grow old but we were each once a foetus
ourselves. As such we had some engaging qualities which unfortunately we lost as
we grew older. We were physically and physiologically robust. We were supple and
not obese. Our most depraved vice was thumbsucking, and the worst consequence of
drinking liquor was hiccups not alcoholism.
"When our cords were cut, we were not severed from our mothers but from our
own organs -- our placentae -- which were appropriate to our old environment but
unnecessary in our new one. We do not regard the foetal circulatory system,
different as it is from the child's or adult's, as one big heap of congenital
defects but as a system superbly adapted to his circumstances. We no longer
regard foetal and neonatal renal function, assymetric as it is by adult
standards, as inferior, but rather entirely appropriate to the osmometric
conditions in which it has to work. Is it too much to ask therefore that
perhaps we should accord also to foetal personality and behaviour, rudimentary
as they may appear by adult standards, the same consideration and respect?"
(emphasis added) 29
The perception of the humanity of the unborn child is embedded in a
variety of human contexts, scientific, medical, legal, artistic, etc. A full
personal response to the various contexts is required in a well-ordered
society:
"Response to the fetus begins with a grasp of the data which yield the
fetus' structure. That structure is not merely anatomical form; it is
dynamic -- we apprehend the fetus' origin and end . . . . Seeing, we are
linked to the being in the womb by more than an inventory of shared physical
characteristics and by more than a number of made-up psychological
characteristics. The weakness of the being as potential recalls our own
potential state, the helplessness of the being evokes the human condition of
contingency. We meet another human subject.30
(emphasis added)
The Valuation of Unborn Human Life
Honesty compels us all to admit that in the abortion debate the
question of when human life begins is not the central issue in dispute.
Rather, the main question is: how should society value the unborn human life
that is present? Even this broader question, however, should be rooted in a
lively cognizance of the reality of the life being valued. Often, however,
this valuation process is characterized by a schizophrenia that denies,
distorts or dismisses as "mere fact" the reality of the unborn life being
assessed so as to advance other particular values.
An editorial in the September, 1970 issue of California Medicine (the
official journal of the California Medical Association), accepting as necessary
fact what it calls the ongoing demise of the traditional Western ethic that "has
always placed great emphasis on the intrinsic worth and equal value of every
human life regardless of its stage or condition," acknowledged that "human life
begins at conception and is continuous whether intra- or extra-uterine until
death." At the same time the editorial defended the quite common denial of this
fact as part of the strategy whereby the "new ethic" would gradually replace the
traditional ethic.
"The process of eroding the old ethic and substituting the new has
already begun. It may be seen most clearly in changing attitudes toward
human abortion . . . . Since the old ethic has not yet been fully displaced
it has been necessary to separate the idea of abortion from the idea of
killing, which continues to be socially abhorrent. The result has been a
curious avoidance of the scientific fact, which everyone really knows, that
human life begins at conception and is continuous whether intra- or
extra-uterine until death. The very considerable semantic gymnastics which
are required to rationalize abortion as anything but taking a human life
would be ludicrous if they were not often put forth under socially
impeccable auspices. It is suggested that this schizophrenic sort of
subterfuge is necessary because while a new ethic is being accepted the old
one has not yet been rejected." (emphasis added)
The value of the individual human life no longer possesses an inalienable
character that gives rise to such procedural rights as due process and equal
protection. Individual worth is, under the "new ethic," to be determined by the
vision of "a biologically oriented world society." In this new world in which
"hard choices will have to be made with respect to what is to be preserved and
strengthened and what is not," it is the medical profession that possesses the
greatest competence and expertise to provide leadership for us all.
Parallels between this editorial and the Supreme Court rulings on abortion
are disturbing. The Supreme Court effectively denied the "well-known facts of
fetal development" (Wade, p. 41) by consigning them to the realm of
speculation and theory: "We need not resolve the difficult question of when life
begins. When those trained in the respective disciplines of medicine,
philosophy, and theology are unable to arrive at any consensus, the judiciary,
at this point in the development of man's knowledge, is not in a position to
speculate as to the answer" (Wade, p. 44). Having avoided a full and open
discussion of the question of the objective humanity of the unborn child, the
Supreme Court ruled, on moral grounds, that life effectively begins under
the law no earlier than viability "because the fetus then presumably has the
capability of meaningful life outside the mother's womb" (Wade, p.
48--emphasis added). The fetus is perfectly viable in utero and only a
disease process or attack renders it non-viable.
When the objective reality of individual human life is either denied or
reduced to simple factuality, those values that men commonly perceive to flow
from the personal transcendence that inheres in the individual (e.g., an
inalienable right to life, liberty, pursuit of happiness) are replaced by other
values ("meaningfulness," "a biologically oriented world society") that tend to
possess a high degree of arbitrariness, caprice, or personal or group bias.
The concept of "meaningfulness" espoused by the Court as the criterion for
determining whether any value should be attached to the unborn child raises the
specter of the "life devoid of value" ethic that was operative in the genocide
and euthanasia programs of Nazi Germany. That ethic is reputed to have been
nurtured since the early 1920's by a significant part of the legal and medical
professions of Germany.31 Both the California
Medicine editorial and the Supreme Court decisions place heavy reliance on the
medical profession to exercise judgments that extend beyond their area of
medical competence.
On August 7, 1972, Dr. Walter Sackett, a Representative to the Florida
legislature, testified before a U.S. Senate Committee on the topic of death with
dignity. At that time Dr. Sackett approvingly quoted a statement made to him by
a medical director of a Florida hospital for the care of the severely mentally
retarded, to the effect that 90% of the 1500 mentally retarded now in two
Florida hospitals should be allowed to die. Dr. Sackett invoked the cost-benefit
model. The money now used to care for these severely retarded individuals could
be more usefully diverted to other causes.32
Culturally our society has moved from limited abortion to
abortion-on-demand, and now, it appears, our society is moving to limited
euthanasia and limited elimination of the mentally retarded. A reasonable
man must ask: what are we doing? where are we going?
Perhaps this is the moment that we should seize to reflect on the immediate
past history of Western civilization, lest the words of George Santayana apply
to us: "Those who do not remember the past are condemned to relive it."
The Supreme Court, by denying the right to life to the unborn child, has rent
the fabric of human law whereby the inherent worth of every man is recognized.
Such an error, attacking the foundation of human society, must be remedied by
amendment to the government's Constitution.
II. THE PROTECTION OF HUMAN RIGHTS IN
LAW
Debates about the relationship of law to morality are complex. It is our
purpose simply to point to certain fundamental principles which must be
incorporated into the legal ethic of any just society.
First of all, there has been a growing awareness throughout the world that
the protection and promotion of the inviolable rights of man are essential
duties of civil authority, and that the maintenance and protection of basic
human rights is a primary purpose of law.
Throughout the 20th century there has been a growing recognition of basic
human rights by the United Nations and by individual countries. There has also
developed an acute awareness that the human rights of minorities are most easily
overlooked or ignored because most often they cannot articulate their
claims. Furthermore, there has been a continuing realization that human rights
are not subject to distinctions of race, age, sex or national heritage. Rather,
they are universal rights of all men and women which are inherent in the nature
of man and are the basis of human dignity.
But human rights give rise to duties and to responsibilities, both in the
person who possesses the right, and the society of which he is a part: Freedom
to exercise one's human rights is qualified by responsibility to society or to
another person. For the sake of order, society must have a way to adjudicate
apparent conflicts of rights. Thus, a well ordered society establishes laws that
will promote and protect human rights, maintain order among persons, and promote
the good of all. As Justice Holmes indicated, the First Amendment's guarantee of
free expression does not permit a person to yell "fire" in a crowded theater.
The existence of human rights and the fragility with which they are
maintained places a claim on society to provide bulwarks of protection for
individuals. A society committed to justice, equality and freedom must establish
a system of law that protects the rights of each person while maintaining order
and promoting the common good.
This principle was declared by our founding fathers in the Declaration of
Independence:
"We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable
rights, that among these are life, liberty and the pursuit of happiness.
That to secure these rights, Governments are instituted among men, deriving
their just powers from the consent of the governed. That whenever any Form
of Government becomes destructive of these ends, it is the right of the
people to alter or to abolish it, and to institute new government, laying
its foundation on such principles and organizing its powers in such form, as
to them shall seem most likely to effect their safety and happiness."
Also, the United Nations Declaration of Human Rights affirms. as a
guiding principle that:
". . . it is essential, if man is not to be compelled to have
recourse, as a last resort, to rebellion against tyranny and oppression,
that human rights should be protected by the rule of law ...."
and the Declaration proclaims that:
"Everyone has the right to life, liberty, and security of person."
Finally, speaking to a world that welcomed his moral leadership, Pope
John XXIII in the great encyclical, Pacem in Terris, asserted that:
"Any human society, if it is to be well-ordered and productive, must
lay down as a foundation this principle, namely, that every human being is a
person, that is, his nature is endowed with intelligence and free will. By
virtue of this, he has rights and duties of his own, flowing directly and
simultaneously from his very nature.
"These rights are therefore universal, inviolable and inalienable.
[no. 9]
". . . Every man has the right to life, to bodily integrity, and to
the means which are necessary and suitable for the proper development of
life. [no. 11]
"It is generally accepted today that the common good is best safeguarded when
personal rights and duties are guaranteed. The chief concern of civil
authorities must therefore to be ensure that these rights are recognized,
respected, coordinated, defended and promoted, and that each individual is
enabled to perform his duties more easily. For 'to safeguard the inviolable
rights of the human person, and to facilitate the performance of his duties, is
the principal duty of every public authority.'" [no. 60]
As citizens of this Republic, and as religious leaders within it, we are
compelled to speak to society and to motivate people in behalf of the rights
of individuals. The scientific evidence confirms that unborn human beings
are members of the human race. Thus, we, as religious leaders, have a grave
responsibility to call for laws that will protect the right to life of the
unborn. We also see a duty to urge a legal-political order founded on
justice and truth that will protect and maintain the rights of all men. The
social encyclicals of the modern era, the teaching of the Second Vatican
Council, and the encyclicals and writings of Pope Paul VI on world
development, justice and peace are directed to that very end.
Anyone who retreats from the discussion of moral questions or pleads
noninvolvement when it comes to establishing a just social order by means of law
and public policy, may well be failing in his responsibilities as a citizen.
It must also be understood that law plays the role of teacher. In some cases,
the law teaches that certain actions are good and should be encouraged. In other
cases, it teaches that certain actions are wrong or dangerous for society, and
should be discouraged, and even prohibited. Increasingly, in a world in which
ideas are readily available and rapidly disseminated, the law cannot remain
silent without thereby failing to protect human values. This is especially true
in regard to the right to life. Unless the law expresses a commitment to
safeguarding the lives of all, it teaches that life itself is a nebulous value,
and one that can be denied. In regard to the right to life of the unborn child,
the Supreme Court has denied any value to that life during the first six months
of its existence in the womb and assigned only a relative value during the last
three months. And on the Court's sliding scale, the value of the life of a
viable fetus that can easily survive with ordinary care is second to the right
of privacy, socio-economic factors, health factors, or the age of its mother.
For practical purposes, the unborn child is often the victim of maternal
convenience or the individual physician's opinion that the mother may be
physically, emotionally or economically taxed by child care.
III. THE RIGHT TO LIFE OF THE UNBORN IN
THE CONTEXT OF AMERICAN LAW
Those measures designed to correct, through constitutional amendment, the
violence inflicted upon the Constitution and upon our entire jurisprudential
ethic by the decisions of the United States Supreme Court in Roe v. Wade and Doe
v. Bolton deserve to be supported from the perspective of developing American
law regarding the rights of the unborn child.
The opinion of the Supreme Court removing all legal protection for the unborn
child is regressive. Our legal tradition has shown a steady and increasing
concern to protect and extend the rights of the unborn child. As one legal
expert observed: "The progress of the law in recognition of the fetus as a human
person for all purposes has been strong and steady and roughly proportional to
the growth of knowledge of biology and embryology."33
If the unborn child can inherit, be compensated for pre-natal injuries, can be
represented by a guardian, can have his right to continued existence preferred
even to the right of the mother to the free exercise of her religion as in the
blood transfusion cases, and enjoy other such rights, then the law would be
schizophrenic to allow the unlimited destruction of that child.
From the Code of Hammurabi, discovered in 1901 and dating back to the third
millennium B.C., until the present, civilized nations have prohibited
abortion. In some cases the law sought to curb promiscuity, in some cases
it sought to protect women from medical quackery. But the law also sought to
protect the right to life of those members of society who were least capable of
protecting themselves. Thus, the United Nations Declaration of the Rights of the
Child, ratified in 1959, proclaimed that "the child, by reason of his physical
and mental immaturity, needs special safeguards and care, including appropriate
legal protection, before as well as after birth."
The Declaration of Independence, the document which establishes this country
as a nation, declares that all of us are "created equal" -- it does not state
that we are born equal, nor that we achieve equality after we have been in our
mother's womb for three months, or six months, or after we are capable of
"meaningful existence," but that we are "created equal" and endowed by our
Creator with the right to life. The Bill of Rights, a document
contemporaneous with the Declaration of Independence, states flatly that we may
not be deprived of life without due process of law. In order to understand the
violence done to the Constitution by these decisions of the Supreme Court, then,
it is only, necessary to appreciate the fact that the Court placed a penumbral
right -- the right to privacy which is nowhere mentioned in the Constitution but
has been enunciated by the Supreme Court -- over an explicit right, the right to
life itself, which is one of the most important guarantees which the
Constitution expresses.
The infliction of any misinterpretation upon the Constitution threatens each
of us in that particular area which has been so misinterpreted. For example, a
misinterpretation of the Free Exercise Clause as it applies to one religion
adversely affects all religions; or a misinterpretation of the right of an
alleged criminal to be free from unwarranted search and seizure, adversely
affects the right of all citizens to be free from unwarranted searches and
seizures. So too, then, does a misinterpretation of the Constitution guarantee
that none of us may be deprived of life without due process of law threaten the
fundamental right of life which each of us supposedly possesses.
Unborn children, by any reasonable biological standard, must be viewed as
growing, functioning, living human beings. The decisions of the Supreme Court in
Roe v. Wade and Doe v. Bolton effectively remove an entire class of human
beings from the protection of the Constitution and sanction the destruction of
these human beings without any semblance of due process. The Court's gratuitous
comments extending the protections of the Constitution only to those who, in the
Court's words are "capable of meaningful existence" or who are persons in the
"whole sense" pose obvious threats to other classes of citizens. It is the
violence done to the Constitution and our entire legal ethic by these decisions
that require an immediate excision of this misinterpretation from the body of
American law.
These are the more obvious points in the Court's opinions. The opinions deny
the personhood and the legally protected rights of the unborn. The Court has
also established a climate of permissiveness in regard to abortion. The Court
has set the stage for society -- or government -- to decide that some lives are
"devoid of value," are lacking in "meaningfulness," or are unworthy of
protection because their continuation is a threat to the convenience of others.
The Court has also set the stage for a possible coercive use of abortion by
government. By citing Buck v. Bell in an approving fashion, the Supreme
Court gives support to an expansion of government control of reproductive rights
for social reasons. The Court places itself in the tradition of justifying the
violation of individual human rights for social ends, rather than requiring a
greater commitment of society to find solutions to these problems that are in
accord with human dignity.
The simple fact is that abortion ends the life of a human being. It is an
unprecedented gesture to place the penumbral right of privacy, nowhere mentioned
in the Constitution, over the right to continued existence which the same
Constitution explicitly protects. These opinions do violence to the Constitution
and are reminiscent of the infamous decision in Dred Scott v. Sanford.
IV. A REVIEW OF THE COURT'S OPINIONS IN
ROE v. WADE, DOE v. BOLTON
Until January 22, 1973, the life of the unborn human being in the womb of
his or her mother was protected by state laws, and by the judgments of many
state and federal courts throughout the United States. On that date, the
United States Supreme Court struck down the abortion laws of Texas
and Georgia, and in a wide-ranging opinion, ended this nation's long
tradition of legally protecting unborn human life. We have already stated
our rejection of the Court's opinions, and we herewith provide some of the
salient reasons for that rejection.
1. The unborn child is not considered a person as the Fourteenth Amendment
understands the term and is therefore not entitled to constitutional
protection for his/her right to life.
In attempting to justify this position, Justice Blackmun acknowledges
that the personhood of the unborn child rests on two questions: (1) the
definition of person in the language and meaning of the Fourteenth
Amendment, and (2) when human life begins. Blackmun answers the first
question by admitting that "the Constitution does not define 'person' in so
many words" (Wade, p. 41). Citing a series of places where the term "person"
is used in the Constitution, Blackmun concludes that "none indicates, with
any assurance that it has any possible pre-natal application" (Wade, p. 42).
The Justice also cites an absence of case law indicating that the fetus is a
person within the meaning of the Fourteenth Amendment (Wade, p. 41).
Finally, he states that the Supreme Court "inferentially" held that the
unborn child is not a person in U.S. v. Vuitch (Wade, p. 43). No one
of these explanations proves conclusively that the unborn ever was -- or
must be -- excluded from personhood within the meaning and language of the
Fourteenth Amendment. One of the major criticisms of the Court's opinions in
Wade and Bolton is their unexplained inconsistency in adopting an
evolutionary concept of the Constitution on one point, i.e., that the
holding is consistent "with the demands of the profound problems of the
present day" (Wade, p. 50) and a static view of the Constitution on the
personhood issue -- "all this . . . persuades us that the word 'person' as
used in the Fourteenth Amendment does not include the unborn" (Wade, p. 43).
Justice Blackmun, in his analysis, ignored two other questions pertinent to
his opinion. Is it clear beyond a doubt that the Fourteenth Amendment excludes
the unborn as a person, and can the constitutional meaning of person under the
Fourteenth Amendment be read to include the unborn? An historical reading of the
views of the framers of the Fourteenth Amendment indicates that they equated the
terms "person," "human being" and "man." Moreover, they situated their
understanding of these terms in the Declaration of Independence that "all men
are created equal." The reference to creation, which was understood to mean a
divine act prior to birth, raised no question in their minds.
Moreover, the law can declare certain beings -- inanimate as well as animate
-- to be persons, as was admitted by U.S. Supreme Court Justice James Wilson,
one of the framers of the Fourteenth Amendment. Finally, the argument has been
made that inanimate objects be accorded legal rights, and specifically that
trees be recognized as persons."34
Justice Blackmun admits that his observations concerning the personhood
of the unborn child in law are not conclusive, and thus he takes up the
question of the beginning of human life. In his investigation of this point
he ignores the impressive and unchallenged scientific evidence on the
existence of human life from conception; he misreads and erroneously
misinterprets the Roman Catholic teaching on the matter (Wade, p. 45); he
admits that "we need not resolve the difficult question of when life begins"
(Wade, p. 44); he leans to the position that "life does not begin until live
birth" (Wade, p. 44); and he concludes that "the fetus, at most, represents
only the potentiality of life" (Wade, p. 46). The conclusion
is not substantiated by the evidence, and it establishes a new term -- "the
potentiality of life" -- that is not supported by the empirical evidence on
when life begins.
It is difficult to pay credence to such fallacious reasoning, but it is
tragically unjust to deny the most fundamental human right to all unborn
children forever on such ambiguous and spurious grounds.
2. The woman's so-called "right to privacy" takes precedence over the
child's right to life and safety. According to the majority, the abortion
decision is primarily a medical decision, but one in which the woman's
personal interests are extensive and determining. The doctor's decision to
perform an abortion should be "exercised in the light of all factors --
physical, emotional, psychological, familial, and the woman's age relevant
to the well-being of the patient."
The majority opinion begins its discussion of privacy with the blunt
assertion that "(T)he Constitution does not explicitly mention any right of
privacy" (Wade, p. 37). Moreover, the Court disagrees with the contention
"that the woman's right is absolute" (Wade, p. 38). Without offering any
compelling. proof, the Court nonetheless elevates a penumbral right to the
status of a fundamental right. Yet mindful of the legal quicksand on which
the privacy doctrine rests, the Court attempts to salvage some control by
qualifying the personal right to privacy with a compelling state interest.
Having already denied personhood to the unborn, locating a state interest is
difficult. So the Court seizes upon protection of the woman's health, and
the protection of "potential life" after viability.
However, marriage and childbearing have always been recognized as matters
deserving state interest and state support. Thus we have a wide variety of
health programs to provide pre-natal, childbirth, and post-natal services to
mother and child. These include nutritional care for both mother and child, and
HEW has provided AFDC benefits on behalf of the unborn child throughout
pregnancy.
Moreover, the question of abortion necessarily involves the relationship
between the mother and her unborn child. In fact, medicine, psychology and
anthropology confirm that this is a highly important relationship in regard to
the development of personality. But this relationship creates rights and duties,
which, although they may change in the course of time, actually perdure while
both remain alive.
Finally, in basing the opinions on the nebulous right of privacy, the Court
entrapped itself in a maze of logical inconsistencies in regard to the mutual
responsibilities of the woman and her doctor. The majority asserts that the
right of privacy "is broad enough to encompass a woman's decision whether or not
to terminate her pregnancy" (Wade, p. 38). However, her right to obtain an
abortion is dependent on medical consultation, because "the abortion decision is
inherently and primarily, a medical decision, and basic responsibility for it
must rest with the physician" (Wade, p. 50). Thus, according to the majority
opinion, the woman has a right to abortion, but cannot effectuate that right
without medical consultation. After consultation, at least during the first
trimester, she may obtain the abortion at any time, at any place, from any
person regardless of whether that person is a doctor. Since "basic
responsibility for it [the abortion] must rest with the physician" (Wade, p.
50), presumably the physician can be sued if harm befalls the woman. Never
before has any Court or any legislature given such a broad grant
of power and responsibility to physicians, but this unprecedented grant also
reduces the physician to consultant and scapegoat at the very same time.
3. The state may not establish any regulations that restrict the practice
of abortion during the first three months of pregnancy. A woman, who in
consultation with her physician decides that abortion is advisable, may
obtain the abortion free of any interference by the State.
In granting this unlimited power to abort to women during the first
trimester, the Court necessarily denies the accumulated scientific evidence
on the growth and development of the unborn child. As indicated above this
scientific testimony leaves little doubt that the fetus is human, and that
the fetal stage of development is but one phase of a continued existence
beginning at conception and terminating at death. Death may occur at age one
or at any other chronological point, or it may occur prior to birth. It is
the same human being who dies, no matter when.
In holding that the decision to have an abortion must be left completely to
the woman and her doctor during the first three months of pregnancy, the Court
permits the abortion to be performed by anyone, and in any place. Thus the Court
allows precisely what everyone -- including those who endorsed liberal abortion
laws -- have continuously rejected, i.e., easily available abortion performed by
non-medical personnel outside medical facilities.
4. The state may establish some guidelines to protect the health of the
woman who decides on an abortion during the second three months of
pregnancy.
This concession of the Court is empty, since medical evidence has already
proven that second trimester abortions are risky, and that complications
during the first eight weeks are also quite high. The Court's concern about
the second trimester skirts the almost universal finding both in foreign
countries and in the United States, that prior to and after abortion,
psychological problems persist.
There is another point that the Court chose to ignore in its tripartite
division of pregnancy. During the first 18 months of the abortion-on-request law
in New York, Dr. Jean Pakter, director of the New York City's Bureau of
Maternity Services and Family Planning reported that more than 60 of the legal
abortions resulted in the birth of a fetus that showed some signs of life. Two
of the fetuses survived, and one was living healthily with its mother at the
time of the report, while the other was still in the hospital. Since the New
York law prohibited abortion after 24 weeks, the Court is faced with
establishing a legal structure that permits, indeed encourages, the death of
some children who could otherwise have survived.
5. After the point of viability, which the Court designated as between the
24th and 28th weeks of pregnancy, the state may manifest a concern in "the
potential human life of the fetus." The state may then establish laws to
protect fetal life, unless the abortion is necessary for the life or health
of the mother. Presumably, this covers anything from a serious threat to the
mother's life to a late-term abortion for mild depression, anxiety, or "the
distress for all concerned associated with the unwanted child."
Once again the Court has held out protection to the unborn on the one hand,
and taken it away with the other. The terms "viability," "potential life," and
"compelling" lead us into a quagmire of vagueness.
The Court's opinion asserts that the "potentiality of human life" is present
at "viability." According to the Court, "(V)iability is usually placed at about
seven months (28 weeks), but may occur earlier, even at 24 weeks" (Wade, p. 45).
In reality, given our constantly expanding knowledge of obstetrics, and our
scientific technology for meeting problems during pregnancy, the fetus is viable
throughout the pregnancy so long as its environment is not disturbed and so long
as it is not the subject of attack.
Moreover, the Court settles on one earmark of viability -- age of the fetus
-- whereas medicine refers to age and weight of the fetus as earmarks.
The Court has coined the term "potentiality of human life" (Wade, p. 49), but
has neither defined the terms adequately nor given criteria for judging its
existence. Since potentiality is a relative term, it is also present during the
first and second trimester, and is not conditioned on viability.
6. Perhaps most important was the manner in which the Court evaluated
unborn human life. The unborn child is viable when it is "capable of
meaningful life" outside its mother's womb. Further, even the viable child
prior to birth is not a person "in the whole sense." Thus the Court has set
a precedent whereby the right of life is no longer inalienable but is
subject to governmental and societal judgments regarding its meaningfulness
and quality.
These concepts, "meaningful life" and person "in the whole sense," are in
fact value judgments which the Court leaves cloaked in ambiguity. It was
such concepts that Nazi Germany used in justifying euthanasia and other
eugenic controls when they designated certain lives as "devoid of value."
Moreover, we are already being visited with the monstrous results of the
Court's immoral ideology. Forty-three deformed infants were allowed to die in a
major university medical center rather than face lives devoid of "meaningful
humanhood." A doctor who commented on the matter said that withholding surgery
-- and sometimes ordinary nurturing care -- from children born with defects is a
common practice in hospitals throughout the country.
Finally, Nobel Laureate Dr. James Watson, has suggested that children should
be declared persons three days after birth to allow time for their parents to
decide whether the child's life should be maintained.
These examples magnify the tragic error of the Court's reasonings in Wade
and Bolton. These opinions of the Court express value judgments and moral
judgments that are beyond the Court's area of jurisdiction. They must be
corrected by the passage of a constitutional amendment to protect the unborn.
V. PROPOSAL FOR A CONSTITUTIONAL
AMENDMENT
As Americans, and as religious leaders, we have been committed to a society
governed by a system of law that protects the rights of individuals and
maintains the common good. As our founding fathers believed, we hold that all
law is ultimately based on Divine Law, and that a just system of civil law
cannot be in conflict with the Law of God. The American system of constitutional
law has proven to be a workable system of law, and one that has generally
responded to the delicate balancing between defending the common good and human
rights on the one hand, and according a due enjoyment of personal freedom on the
other.
But a system of law, to be just and equitable, must respond to new
challenges. A static system of law runs the risk of failing to provide
protection for human rights, and it soon degenerates into a system of regulatory
controls, rather than a system of justice. The administration of law is a
function of government, and in the American system, the establishment of laws
and the election of government officials is based on the democratic process.
Once any government or system of law does not acknowledge the rights of man or
violates them, it not only fails in its duty, but its orders completely lack
juridical force.
The opinions of the Supreme Court in Wade and Bolton deny the
basic principles of the Constitution, and refuse appropriate legal protection to
the unborn child. The Court's opinion is absolute and universal; the unborn have
no recourse or appeal.
After much consideration and study, we have come to the conclusion that the
only feasible way to reverse the decision of the Court and to provide some
constitutional base for the legal protection of the unborn child is by amending
the Constitution. Moreover, this is a legal option consistent with the
democratic process. It reflects the commitment to human rights that must be at
the heart of all human law, international as well as national, and because human
life is such an eminent value, the effort to pass an amendment is a moral
imperative of the highest order.
The so-called "states' rights" approach to the amendment is unacceptable. It
is repugnant to one's sense of justice to simply allow as an option whether the
states within their various jurisdictions may or may not grant to a class of
human beings their rights, particularly the most basic right, the right to live.
Further, by its action the United States Supreme Court has removed the unborn
child from protection under the U.S. Constitution, and thereby the Court has
raised the abortion issue to the level of a federal question. Federal
constitutional rights, improperly, but substantially denied, must be
substantially affirmed.
We are aware that a number of Senators have sponsored or cosponsored specific
proposals. We wish to commend their efforts and to place before this Committee
our own convictions. Moreover, we understand that these hearings are to assist
the Sub-Committee on Constitutional Amendments in formulating precise language
that will be brought to the Committee on the Judiciary, and ultimately will be
placed before the full Senate.
At this time, we wish to articulate the values that we believe should be
encompassed by an amendment, and we hope to provide a more detailed legal
memorandum at a later date.
Thus, any consideration of a constitutional amendment should include at least
the following points.
1. Establish that the unborn child is a person under the law in the terms of
the Constitution from conception on.
2. The Constitution should express a commitment to the preservation of life
to the maximum degree possible. The protection resulting therefrom should be
universal.
3. The proposed amendment should give the states the power to enact enabling
legislation, and to provide for ancillary matters such as record-keeping, etc.
4. The right of life is described in the Declaration of Independence as
"unalienable" and as a right with which all men are endowed by the Creator. The
amendment should restore the basic constitutional protection for this human
right to the unborn child,
VI. CONCLUSION
Law constitutes a fundamental and indispensable instrument in making it
possible to build up a more just and loving society. Only the law, in
conjunction with a broadly conceived program of education, can effectively
extend the horizons of democracy and civil rights to include explicit and full
protection for the rights of the unborn child.
It has taken a century for the promises held out by the Thirteenth and
Fourteenth Amendments to the Constitution to begin to bear fruit in our present
society. However long the road before us in securing effective recognition of
the civil rights of the unborn child, we must begin now with what is the
necessary first step, the enactment by Congress of an appropriate constitutional
amendment.
However, we do not see a constitutional amendment as the final product of our
commitment or of our legislative activity. It is instead the constitutional base
on which to provide support and assistance to pregnant women and their unborn
children. This would include nutritional, pre-natal, childbirth and post-natal
care for the mother, and also nutritional and pediatric care for the child
through the first year of life. Counseling services, adoption facilities and
financial assistance are also part of the panoply of services, and we believe
that all of these should be available as a matter of right to all
pregnant women and their children. Within the Catholic community, we will
continue to provide these services through our professional service agencies to
the best of our ability to anyone in need.35
NOTES
1. Abortion is defined as the expulsion of the fetus prior
to viability. Some authors use the terms "feticide" for the destruction of the
fetus prior to viability, and "infanticide" for the post-viability, late-term
abortion.
2. These laws were placed on the books as a consequence of
a very determined effort by the American Medical Association. They cannot be
traced to the political influence of Catholics, but were enacted by a political
system in which Catholics had little part.
3. Cf. Robert Rugh, Ph.D., Landrum Shettles, Ph.D., M.D.,
with Richard Einhorn, From Conception to Birth: the Drama of Life's
Beginnings (New York: Harper & Row, 1971).
4. "Drama of Life Before Birth," Life, April 30, 1966.
5. Dr. H. M. I. Liley is a pediatrician. She has collaborated
in studies of the unborn with her husband, Dr. A. W. Liley, who perfected the
intra-uterine transfusion.
6. H. M. I. Liley, Modern Motherhood (New York: Random
House, rev. ed., 1969), pp. 26-27.
7. J. A. F. Roberts, An Introduction to Medical Genetics,
3rd ed. (London: Oxford University Press, 1965), p. 1, as cited in Germain
Grisez, Abortion: the Myths, the Realities, and the Arguments (New York:
Corpus Books, 1970), p. 6.
8. Roland M. Nardone, "The Nexus of Biology and the Abortion
Issue," The Jurist (Spring, 1973), p. 154.
9. R. Houwink, Data: Mirrors of Science (New York:
American Elsevier Publishing Co., Inc., 1970), pp. 104-190, as cited in Bart T.
Heffernan, M.D., "The Early Biography of Everyman," in Abortion and Social
Justice, eds. Thomas W. Hilgers and Dennis J. Horan (New York: Sheed and
Ward, 1972), p. 4.
10. Hymie Gordon, "Genetical, Social and Medical Aspects of
Abortion," South African Medical Journal (July, 1968), pp. 721-730, as
cited in Heffernan, p. 5.
11. Nardone, p. 153.
12. Andre E. Hellegers, M.D., "Fetal Development,"
Theological Studies, (March, 1970), p. 9; Nardone, pp. 154, 157; Anne
McLaren, "The Embryo," in Embryonic and Fetal Development, eds. C. R.
Austin and R. V. Short, Reproduction in Mammals, Vol. 2 (London: Cambridge
University Press, 1972), p. 5.
13. "The Termination of Pregnancy or Extermination of the
Foetus," Professor A. W. Liley, a speech delivered November 18, 1970.
14. Albert W. Liley, "The Foetus in Control of His
Environment," in Abortion and Social Justice, eds. Thomas W. Hilgers and
Dennis J. Horan (New York: Sheed & Ward, 1972), p. 27.
15. Ibid.
16. Cf. Philip Wylie, The Magic Animal (New York:
Doubleday, 1968), p. 272, who describes the fetus as "protoplasmic rubbish," a
"gobbet of meat protruding from a human womb," as cited in William E. May,
"Abortion as Indicative of Personal and Social Identity," in The Jurist
(Spring, 1973), p. 209. Such terms as "fetus fetish" and "blob of protoplasm"
sometimes appear in debate.
17. A. W. Liley, "The Foetus as Personality," Aust.
N.Z.J. Psychiatry (1972), p. 349.
18. Some question whether individuality is not irreversibly
established until several days after fertilization, perhaps the blastocyst stage
of development. This questioning is prompted by such phenomena as twinning and
recombination or by studies on the manner in which the genetic material of the
primary cell is activated. However, the scientific data on these matters is
still fragmentary with the result that interpretations are necessarily quite
speculative. Although scientists investigate the question of individuality in
the context of irreversibility, the known norm that individual human life
originates at fertilization should be the basis of law.
19. Heffernan, pp. 6-7.
20. The above material, descriptive of human development
from fertilization to eight weeks, is summarized in large part from Heffernan,
pp. 4-7.
21. Lennart Nilsson, Alex-Ingelman-Sundberg, and Claes
Wirsen, A Child Is Born (New York: Delacorte Press, 1966).
22. Nilsson, p. 81.
23. Albany Union Times, March 10, 1970, p. 17, as
cited in Robert M. Byrn, "Abortion-on-Demand: Whose Morality?," Notre Dame
Lawyer (Fall, 1970), pp. 8-9.
24. A. W. Liley, "The Foetus as a Personality," Aust.
N.Z.J. Psychiatry (1972), p. 350.
25. Heffernan, p. 3.
26. Most of the descriptive material of this section is
taken from A. W. Liley, "The Foetus as a Personality."
27. Ibid., 351-352.
28. H. M. I. Liley, Modern Motherhood, pp. 37-38.
29. A. W. Liley, "The Foetus as a Personality," p. 355.
30. John T. Noonan, Jr., "Responding to Persons: methods of
moral argument in debate over abortion," Theology Digest (Winter, 1973),
p. 302.
31. Frederic Wertham, M.D., A Sign for Cain: An
Exploration of Human Violence (New York: Paperback Library, 1966), pp.
133-186. In 1920 a jurist and psychiatrist published in Leipzig an influential
and popular book, The Release of the Destruction of Life Devoid of Value,
in which they advocated that the killing of "worthless people" be legally
permitted. "The concept of 'life devoid of value' or 'life not worth living' was
not a Nazi invention, as is often thought. It derives from this book . . . .
This [that the authors of the above book were acknowledged intellectual leaders]
illustrates the presupposition that violence does not usually come from the
uncontrolled instincts of the undereducated, but frequently is a rationalized
policy from above" (pp. 157-158).
The gas ovens in Nazi Germany were first used by the German medical
profession in late 1939 to kill four unsuspecting, cooperative mental patients
(pp. 150-151). This initial experiment successfully grew into a well-organized
health program that was first directed at mental patients [estimated at least
275,000 killed by 1945 -- p. 155], but was expanded to include unnumbered of the
elderly, the crippled, including crippled children, war wounded, etc. The
techniques of death developed in the mental hospitals were transferred to the
concentration camps for use in the political program of genocide (pp. 176-177).
For a fuller discussion of medical ethics in its modern cultural context, cf.
Charles Carroll, "Medicine Without an Ethic," The Journal of the Louisiana
State Medical Society (September, 1972), pp. 313-320 [an expanded version of
this article is reproduced in Abortion and Social Justice, pp. 249-266].
32. Death With Dignity: An Inquiry into Related Public
Issues. Hearings before the Special Committee on Aging, U.S. Senate, 92nd
Congress, 2nd session. Part I -- Washington, D.C., August 7, 1972, pp. 29-32.
33. David Louisell, "Abortion, the Practice of Medicine and
the Due Process of Law," 16 U.C.L.A. Law Review (1969), p. 324. Cf. also
John T. Noonan, Jr., "The Constitutionality of the Regulation of Abortion,"
The Hastings Law Journal (November, 1969), pp 51-65.
34. Justice William O. Douglas in Sierra Club v. Morton,
405 U.S. Reports, 1972, 727.
35. Resolution of the National Conference of Catholic
Charities, November 3, 1970.
