TESTIMONY OF UNITED STATES CATHOLIC CONFERENCE
ON CONSTITUTIONAL AMENDMENTS PROTECTING UNBORN HUMAN LIFE
BEFORE THE SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS
OF THE HOUSE COMMITTEE ON THE JUDICIARY
March 24, 1976
The National Conference of Catholic Bishops, at its annual meeting in
November 1975, issued a Pastoral Plan for Pro-Life Activities. This
Pastoral Plan summarized many of the specific statements of the NCCB during
the past ten years, and it provides a specific context in which we situate our
present testimony. The Pastoral Plan embraces a three-fold program of
respect for human life that is, in effect, the working policy of our Conference,
and which we summarize briefly here as the backdrop of this testimony.
The educational goals to which the American Bishops have committed
themselves are multi-faceted, but a central purpose of the long-range,
intensive educational effort is to emphasize that the life of an individual
human being exists and develops in the womb throughout the entire course of
pregnancy. We are persuaded that there is abundant scientific consensus that
from conception on, an individual human life exists, and we believe that
each individual human life merits acceptance and support by society and
protection in law. Moreover, we are convinced that the law need not settle
debates about the philosophic understanding of personhood, but that it can
and should treat the human fetus as a legal person, thereby insuring legal
protection of the fetus' continued right to life and development in the
2. Pastoral Care
A second facet of our Pastoral Plan has to do with assisting the
mother and child during and after pregnancy. The tasks of motherhood are not
all accomplished with birth; and needs for maternal health and child care
extend in varying degrees from conception through infancy and childhood.
Thus, a wide range of services and programs should be available in our
society. Government has a legitimate role in authorizing and sponsoring such
programs, and the Church also will continue to provide such services and
programs to the fullest possible measure. Such programs and services
- Adequate education and material sustenance for women so that they may choose
motherhood responsibly and freely in accord with a basic commitment to the
sanctity of life.
- Nutritional, pre-natal, childbirth and post-natal care for the mother, and
nutritional and pediatric care for the child throughout the first year of life.
- Intensified scientific investigation into the causes and cures of maternal
disease and/or fetal abnormality.
- Continued development of genetic counseling and gene therapy centers and
neo-natal intensive care facilities.
- Extension of adoption and foster care facilities to those who need them.
- Pregnancy counseling centers that provide advice, encouragement and support
for every woman who faces difficulties related to pregnancy.
- Counseling services and opportunities for continuation of education for
- Special understanding, encouragement and support for victims of rape.
- Continued efforts to remove the social stigma that is visited on the woman
who is pregnant out of wedlock and on her child.
3. Public Activity
The third aspect of the Pastoral Plan urges appropriate public activity
to attain legislative and judicial goals. These goals are:
- Passage of a constitutional amendment providing protection for the unborn
child to the maximum degree possible.
- Passage of federal and state laws and adoption of administrative policies
that will restrict the practice of abortion as much as possible.
- Continual research into and refinement and precise interpretation of Roe and
Doe and subsequent court decisions.
- Support for legislation that provides alternatives to abortion.
Consistent with these purposes, but as a specific effort in behalf of
the public policy aspect of the Pastoral Plan, we have requested the opportunity
to appear before this Subcommittee and testify in support of an amendment to the
Constitution that will provide the constitutional base for a legal structure
that protects the life of the unborn child as he or she develops in the womb of
his or her mother.
Other members of the National Conference of Catholic Bishops testified before
the Senate Subcommittee on Constitutional Amendments on March 7, 1974. Our
testimony today is based on and elaborates on that testimony. We herewith submit
and ask that it be made a part of the Record of this hearing.
In the intervening two years since the testimony before the Senate
Subcommittee, a number of events have taken place which heighten our moral
responsibility to continue to oppose the current situation of abortion on
request generated by the U.S. Supreme Court's opinions in Roe v. Wade and
Doe v. Bolton, and to increase our efforts to help bring about an amendment
to the Constitution that will provide for the protection of unborn human life.
Opposition to abortion is not an exclusively Catholic concern, and efforts to
amend the Constitution, to be successful, depend on a widespread consensus and
support throughout the society. We believe that that consensus and support are
growing, and we are intent on providing every reasonable assistance to its
continued development and expansion. Among the reasons persuading us that a
public consensus is developing is the fact that public opposition to abortion on
request has been evident for over 15 years and has prevailed even after the U.S.
Supreme Court opinions in Roe and Doe. 1
Moreover, in a poll taken by De Vries Associates and released in February, 1975,
it was clear that the majority of Americans, given the choice, would choose
another course of action than the one offered by Roe and Doe. This
same poll indicated that the more that people learn about fetal development, the
more cautious they become about legal policies, and thus they lean increasingly
toward laws that restrict the practice of abortion.
A second reason persuading us of the reasonableness of amending the
Constitution is that we find increasing opposition to the substance and the
legal methodology of Roe and Doe among scholars of the law. This
opposition by legal scholars, including some who would favor a permissive legal
policy, correlates with the public perception that Roe and Doe
remain an inadequate and unacceptable solution to abortion law in our country.2
Admittedly, though public attitudes and scholarly reflections correlate
to some degree with our position on public policy, we do not appear here
today as representatives of all the people nor as legal specialists. We
appear on behalf of the United States Catholic Conference, representing the
Catholic faith community. We also appear in fulfillment of our role as moral
leaders in this society, articulating convictions regarding human dignity
and human rights that are shared by other religious groups and by persons of
no particular religious persuasion. We are convinced that the traditional
beliefs and commitments in behalf of human dignity and human rights,
expressed in the United Nations Declaration of Human Rights and our own
Declaration of Independence and Constitution, provide the basis for a
widespread societal consensus in defense of the right to life of unborn
human beings. Thus, in our testimony today, we wish to focus on the
following points as evidence of the breakdown of commitment to human rights,
particularly the right to life, and as reasons in favor of an amendment to
the Constitution that will protect human life at every state of existence:
I. The Law and the Incidence of Abortion.
II. Social Implications of Permissive Abortion.
III. Threats to Children From the Existing Situation of Abortion On Request.
IV. The Impact of Roe and Doe on American Life.
V. The Right To Life and Religious Freedom.
I. THE LAW AND THE INCIDENCE OF ABORTION
The process of granting increased legal approval to the practice of abortion
began in 1967 when the states of California, Colorado and North Carolina enacted
laws modeled on the American Law Institute (ALI) proposal (abortion is allowable
if it is believed that there would be grave impairment to the physical or mental
health of the mother, or that the child would be born with grave physical or
mental defect, or that the pregnancy resulted from rape or incest).3
In 1968 and 1969 seven more states enacted ALI type laws: Georgia, Maryland,
Arkansas, Delaware, Kansas, New Mexico, and Oregon.4
As one would expect, legalization leads to an increased incidence of
legally induced abortion, though the extent of the response varies from one
cultural context to another.
It is estimated that prior to the legalization process that began in 1967,
approximately 8,000 legal abortions were being performed each year in the United
States.5 For 1969, the first year for which national figures are
available, the HEW Center for Disease Control (CDC) in Atlanta reported that
22,670 legal abortions were performed (see Table 1).6
Before the U.S. Supreme Court radically altered legal abortion policy
for the states through its abortion decisions of January 22, 1973, an
additional three states were to choose to enact laws based on the ALI model
-- South Carolina and Virginia in 1970 and Florida in 1972. A total of
thirteen states opted for this moderately restrictive policy.
In 1970, a new legal phenomenon appeared in the United States: abortion on
request. The thrust of this new legal policy was to remove the practice of
abortion from the specific contexts that are normally associated with law and
medicine. Four states adopted laws of this type: Alaska, Hawaii, New York and
Washington. In some jurisdictions the courts interpreted the traditional laws
designed to safeguard the welfare of the mother in a permissive fashion7
or they declared such laws unconstitutional.8 Elsewhere a permissive
climate engendered by the new policy of non-regulation led to the de facto
interpretation of moderate ALI type laws as allowing abortion on requests
The legal fact of abortion on request and the permissive spirit that it
represents became the primary factors in the massive increase in the incidence
of legal abortion that began in 1970.
As the figures in Table 1 indicate, the increases for the years 1970 and 1971
represent the largest increases to date, both relatively and absolutely. The
numbers jump from some 22,600 in 1969 to 485,600 in 1971.
With the onset of abortion on request a full national debate was begun on the
merits of such a policy. The general reaction of the American people was
negative. After 1970 no further states enacted abortion on request laws, and
only one state enacted a comparatively restrictive ALI type law. In 1972 the New
York legislature repealed the abortion on request law that it had passed in
1970.10 The potential import of this action is highlighted by the
fact that in 1971 and 1972 the state of New York accounted, respectively, for
55% and 51% of all abortions performed in the United States.11
One of the events that helped launch the national abortion debate in
1970 was a referendum in the state of Washington. At that time, the
Washington voters opted for an abortion on request law by the margin of 54%
to 46%. In 1972 two additional referenda were planned in the states of
Michigan and North Dakota as a way of resolving the now highly developed
political debate. Pro-abortion advocates predicted a major victory in
Michigan with 61% of the vote. It was conceded by abortion proponents that
the Michigan vote had the potential of deciding the future of the abortion
The results were overwhelming. The referenda proposals were firmly
rejected by the voters in each state, in Michigan by a margin of 61 % to
39%, and in North Dakota by the even higher margin of 77%a to 23%.
The negative reaction of the American people to abortion on request was not
unexpected. An analysis of the major public opinion polls of the preceding
decade revealed that nearly 80% of the American people were opposed to the
concept of permissive or elective abortion.13 In her 1971 analysis,
Professor Judith Blake concluded that the Supreme Court was "the only road to
rapid change" in legal policy.
On January 22, 1973, the U.S. Supreme Court issued its opinions holding the
laws of Texas and Georgia unconstitutional, thereby effectively negating the
laws of nearly all the other states. In general terms the Court determined the
constitutionally permissible elements of any state abortion law. The legislative
policy envisioned by the Court was more permissive than any then in effect in
any of the various states, and probably more permissive than any in the world.14
In so deciding, the Court removed from the people and the state legislatures the
right to debate and resolve the basic issues inherent in the abortion
controversy. As Justice White stated in his dissenting opinion: "the upshot (of
the Court's action) is that the people and the legislatures of the 50 States
are constitutionally disentitled to weigh the relative importance of the
continued existence and development of the fetus on the one hand against a
spectrum of possible impacts on the mother on the other hand" (emphasis added).15
Subsequently, Justice Blackmun, who wrote the main opinion for the Court,
publicly expressed the view that the Court may have decided its abortion rulings
too precipitously and without sufficient thought.16
It is generally assumed that some one million legal abortions are now
being performed each year in the United States.17 When a
permissive abortion policy is introduced into a country, worldwide
experience shows that the incidence of legal abortion climbs rapidly and
after several years peaks out at a top figure (which generally declines
slightly thereafter).18 One study postulates that in addition to
the estimated 745,000-850,000 women who obtained abortions in 1973 there
were another 500,000 to one million women who were potential abortion
recipients.19 Specific predictions about future fertility trends
are necessarily tentative and hypothetical. One study suggested that if
legal restrictions were removed from abortion in the early 1970's, it would
be expected that in five to ten years a peak ratio of 500 abortions per
1,000 live births would be reached in the United States (this ratio would
yield approximately 2.4 million legal abortions in 1980).20
The Occurrence of Illegal Abortion
By definition illegal abortion represents an unknown quantity. It cannot
be objectively observed nor is it systematically recorded. Knowledge about
the incidence of illegal abortion is generally derived by way of inference
from other known facts.21
When the first efforts to relax United States abortion laws were being
made, a committee of statistical experts reported that "a plausible estimate
of the frequency of induced abortion in the United States could be as low as
200,000 and as high as 1,200,000 per year .... There is no objective basis
for the selection of a particular figure between these two estimates as an
approximation of the actual frequency."22 Despite such warnings
the figure of one million or more illegal abortions per year was often used
in the public debate.
Since the practice of legal abortion has become widespread, some inferences
have been made with respect to the incidence of illegal abortion, but the
general assumption stands that personal opinion remains a significant factor in
Worldwide experience shows that legalization of abortion does not eliminate
the practice of illegal abortion .23 Septic abortion patients are
still being admitted to U.S. hospitals.24 A few studies exist on the
admission of septic abortion patients to particular hospitals. The most
carefully constructed study to date revealed that there was no decline in
admissions of patients who had undergone illegal abortions until the abortion
ratio for the hospital had climbed to a high of 227 abortions per 1,000 live
births.25 Nonetheless, when the abortion ratio had climbed even
higher to 356, septic abortion patients who had undergone illegal abortions were
still being admitted.26 One authority commented: "The data indicate
that at least among medically indigent groups legal abortion may not be used
exclusively as a replacement for illegal abortion and that the availability of
legal abortion must be very broad indeed to undercut the use of criminal
means" (emphasis added).27
It is generally assumed that a broadly permissive legal policy leads to
an overall increase in the incidence of abortion. There is no agreement as
to specific measure of increase, but the increase is significant.28
When a permissive legal policy is adopted, there will be women who would not
have obtained illegal abortions but will now obtain legal ones.29
Despite the current high incidence of one million legal abortions per
year, a recent study has carefully analyzed population groups and
geographical areas that it considers in need of abortion. Retrospectively,
the unmet "need" for 1973 was placed in the high/low range of 42/59%.30
There is no reason why the percentage of "need" would not increase as the
practice of abortion becomes more factually widespread.
Thus, the claim that legal abortions simply replace illegal ones is
misleading. The legal approval of abortion encourages new people to obtain legal
abortions, and perhaps illegal ones also.31
The suggestion is made that proper public education will remove the
sense of shame that has been associated with abortion in the past. The
incorrect assumption here is that the moral repugnance that people feel in
the presence of abortion is simply the result of cultural conditioning.
Abortion is a shameful act because it involves the ever present factual
reality of agreeing to the destruction of one's own offspring. No amount of
"education" can change this fact and the natural shame it evokes.
The extent to which septic abortion has risen or declined over the years is
problematical. However, the associated phenomenon of abortion-related maternal
mortality has exhibited a steady dramatic decline for the last several decades
(see Table 2).32 This decline occurred while a restrictive abortion
policy was in effect and while the size of the population at risk was
increasing.33 The decline in abortion-related maternal mortality
generally parallels the decline in maternal deaths from all other causes. For
this reason it is assumed that improvements in health care and health care
delivery are responsible for the decline. It is reasonable to assume, then, that
the problem of septic abortion could also be substantially reduced by means of
the direct, positive efforts involved in improved health care.
An abortion, whether induced legally or illegally, is an immoral act. The
resulting losses in life to unborn children and the losses in life and health to
mothers and the future children they may bear are evils that society should
oppose. These losses should be reduced as much as possible.
First, legal restrictions should be placed on the practice of abortion. The
overall incidence of abortion and the attendant losses would be significantly
reduced. The law would then cease to teach and thus encourage individuals to
seek abortions, whether legal or illegal.34 On the contrary, the law
would lay a foundation for a more positive and humane approach to the problems
of pregnancy, including the dangers to the life and health of born and unborn
that legal and illegal abortions represent.
Second, the legal approval of abortion on request clearly represents an
overly broad response to the specific problem of illegally induced septic
abortions. More study is needed on the phenomenon of illegal septic abortion.
However, a moral, sane, and humanitarian response to this problem would include
better education about health care for both the mother and her unborn child;
improved medical and hospital care for the septic abortion patient; and the
establishment of counseling and advisory centers for pregnant women, especially
in areas identified as high risk for septic abortions.35
II. SOCIAL IMPLICATIONS OF PERMISSIVE ABORTION
Legal Abortion As a Social Right
The freedom of no person, man or woman, can be absolute, or social life
will not be possible. If the concept of a woman's freedom essentially
requires that she have the right to destroy the life of her unborn child,
then that concept of freedom is brutal and unworthy. A genuine personal
freedom must begin by recognizing and respecting the natural human
relationships that already exist.
Freedom cannot be freedom from responsibility and personal relationships.
Freedom is impossible without personal relationships. Freedom flows from
The middle class and the rich in our society have a greater freedom in their
choices about health care than do the poor. The poor depend most heavily on the
services that the government provides. It is a sad commentary on our society
that the poor and minorities obtain a higher percentage of legal abortions than
is appropriate to their representation in the general population. The poor and
minorities are targeted as population groups that should receive more abortions
than others.36 An elitist attitude that is patronizing and sometimes
punitive decides that abortion is good enough for the poor. The underlying
concept is that abortions are cheaper than other health services associated with
childbearing and child rearing. The factual result is that the poor and
minorities, who necessarily depend on the government for health services, will
be automatically subjected to a coercive pressure to accept abortion as a
The poor and minorities possess human dignity equal to that of other human
beings. Government funding of abortion as an alternative to normal health care
constitutes a betrayal of the trust that should exist between a government and
the people it was established to serve and protect. Poor women and their unborn
children have done nothing to merit the destruction that government policy
offers to them.
Legal Abortion and Social Policy
The various arguments in favor of a permissive abortion policy generally
begin with the assumption that abortion is not a morally significant
occurrence. If the fact of abortion is not morally significant, then, it is
argued, there is no reason why it should not be legally acceptable and, to
some extent, legally regulated. Thus, prior to legalization, arguments were
proposed why legalization would result in various and diverse social goods:
the cause of women's rights would be advanced; health care for the poor
would be improved; fertility rates would be reduced; the rates of infant
mortality (after birth), maternal mortality, illegitimacy, and septic
abortions could be reduced, etc.
If legalization occurs, there is then, a certain need to prove that these
results have been effected. As a matter of fact, these results are not always
Abortion, whether performed legally or illegally, is dangerous to a woman's
life and health.37
Not infrequently, the arguments advanced in defense of a permissive
abortion policy are naive and uncritical. The short ranged and the
superficial are extolled at the expense of the long ranged and the
meaningful. There is a growing interest among some researchers as to whether
the high incidence of abortion in teenagers does not represent a major
public health problem in the future. There is evidence that subsequent
pregnancies result in a significantly higher rate of prematurity.
Prematurity is a leading cause of mental and physical retardation in
The various arguments in favor of a permissive abortion policy make a
claim about what can or may result. However, they do not establish that a
permissive abortion policy is necessary to bring about the various results.
We question the factual validity of many of the benefits that are claimed to
result from permissive abortion. The pragmatic vision of these arguments is
essentially flawed because the most basic fact of all is systematically denied:
that each abortion kills an innocent unborn human being. Because of this
essential fact, we argue that since there are better ways to achieve the various
desired social goods, then our society should choose those ways. We submit that
a general agreement is possible that there are other morally acceptable ways of
achieving the desired results, even if there is no theoretical agreement as to
whether these other ways are, morally speaking, the best ways.
An abortion is not a morally insignificant event. No amount of
statistical calculation, moral protestation or subtle legal
argumentation can change the fact that an abortion destroys a human life.
What moral principle can equitably and justly balance the potential
accomplishment of social goods with the direct and deliberate destruction of
one million or more unborn human beings each year? There is no such
Our society must answer this question. The refusal to answer this question
only increases the need to deny that the question exists. What we see afoot
today is the systematic effort to deny that unborn human beings possess any
value. This destructive spiral must stop. No society that condones the
destruction of innocent human lives as the means to the solution of perceived
problems will call forth the positive and creative energies that are necessary
for the solution of the real problems.
The destruction of unborn human life represents a violent and manipulative
act that degrades the respect for life that is necessary for the well-being of
the human spirit of all, men and women alike.
The violent solution attracts us because it promises the quick and sure
solution. However, the cost in human lives is irreparable. It necessarily leads
to a destruction of the human spirit. One cannot kill or condone the killing of
a fellow human being without suffering in one's soul a humanly irreparable loss.
The abortion ethic entails a collapse in the moral tension that is a healthy
part of the creative human spirit. Human problems are normal. Our maturity and
growth are measured by a realistic approach to the problems that confront us. We
should not allow the presence of difficulties to engulf us in despair or to
cause us to yield to the temptation to accept the immoral solution because it
appears easy and possible. Human problems must be faced with a sense of
confidence and faith. Then, problems become challenges.
When a woman becomes pregnant, she is in need of support and care. Too often
the father, family and friends and society in general abandon the woman and her
child. A permissive abortion policy socially approves and encourages the
irresponsibility of those who abandon the woman, and it betrays the woman and
her child. A good and just society must do more.
III. DANGER TO THE LIVES OF CHILDREN RESULTING FROM THE EXISTING LEGAL
SITUATION OF ABORTION ON REQUEST
During the past decade, great advances have been made in the relatively new
fields of fetology and perinatal medicine that have made it possible to save the
lives of many infants who would otherwise have died of prematurity or specific
weaknesses during the early weeks of extrauterine life. Many hospitals have
developed highly proficient intensive care units that are quite successful in
saving the lives of infants by providing a technological environment that takes
the place of the mother's womb during the final trimester of pregnancy. Many of
the physicians and technologists predict that with increased knowledge,
technology and human skill, they will be able to save the lives of infants who
are spontaneously aborted at even earlier stages of pregnancy. At the other end
of the continuum, other scientists are convinced that we will soon
develop the technology to accomplish in vitro fertilization and succeed in
bringing the "test-tube baby" to term.
Paradoxically, during this same time frame we have moved from restrictive
abortion laws to a legal situation of abortion on request, and this shift
induces attitudes and mindsets that endanger the lives of infants who are
spontaneously aborted, prematurely born, or born at term with a specific disease
or weakness. Some examples may serve to illustrate the point.
Perhaps the classic example of the effect of permissive abortion on attitudes
toward infant life comes from the reported remarks of Dr. Kenneth Edelin of
Boston who was found guilty of manslaughter for allowing or causing an aborted
infant to die. Dr. Edelin was convicted of manslaughter by a Boston jury for the
death of a twenty to twenty-four week fetus following a legal abortion. In
response to the jury verdict, Dr. Edelin maintained that everything he did in
performing the abortion was in accordance with law and with good medical
practice.39 He reportedly protested the jury verdict on the grounds
that in his view abortion presupposes the death of the fetus, and thus in light
of the Court's 1973 abortion ruling, the implication is that abortion
terminates any responsibility to maintain the life of a living aborted fetus.40
In a New Jersey case in which a man shot a woman in the abdomen who was
seven and a half months pregnant with twins, the bullet hit one of the
fetuses, causing premature delivery of the twins who died some hours after
birth. The man claimed that he could not be convicted of homicide because
the fetuses were not persons in the legal sense when the shooting occurred.41
The debate about fetal experimentation has also surfaced the paradox of
allowing unrestricted experiments on the fetus because it is not legally
protectable, precisely to gain knowledge to save the lives of other fetuses
of the same age and situation. Commenting on a specific type of experiment
calculated to improve the chances of maintaining a future pregnancy among
women who had a series of spontaneous abortions, Robert S. Morison
pinpointed the paradox. Noting that the experiments were to be carried out
on women who wished to abort, Morison urged that as the experiments
approached success, they would have to be discontinued. "It would clearly be
unethical," writes Morison, "to employ extraordinary means actually to bring
into the world of the living an infant whose parents had already rejected
In his book on fetal research, Paul Ramsey touches on a similar issue.
Does the gaining of information about fetal disease justify experiments that
endanger fetal life simply because the mother has already opted for
abortion? The affirmative answer to this question depreciates the value of
fetal life. As Ramsey observes:
Experimentation with children (having no bearing on their treatment) is
said to be justified if limited to research on uniquely pediatric diseases;
and now experimentation with the fetus is deemed not only necessary but
right if limited to the study of uniquely fetal or neonatal diseases . . . .
Significant to note, however, is that such a limitation upon morally
permissible research is for other reasons held minimalist in the case of
research using children, because the child might be injured and still live;
while in the case of fetuses the very same limitation knows no bounds if
abortion in prospect is taken to be crucial. The upshot of that would be to say
in principle that no indignity, no injury, no harm that may be believed
useful to other less fortunate fetuses need be morally prohibited .43
The implications of abortion practice in regard to respect for human life
is also found in the experience of Dr. Bernard Nathanson. Dr. Nathanson
began by considering abortion almost exclusively as a voluntary medical
procedure for women. In setting up a clinic that provided 60,000 abortions
in little over 18 months with no maternal deaths, Dr. Nathanson demonstrated
that abortion could be performed safely and economically. But in resigning
his directorship of the clinic, Dr. Nathanson explained that "I am
increasingly troubled by my own increasing certainty that I had in fact
presided over 60,000 deaths."44
Dr. Nathanson's gradual negative reaction to abortion was intensified
and crystallized into conviction when he became Chief of Obstetrical
Services at St. Luke's Hospital in New York, where, among other duties, he
was responsible for supervising the perinatal unit. That responsibility
prompted the question: "If that thing in the uterus is nothing, why are we
spending all this time and money on it?"
Reflecting on that question, Dr. Nathanson reached the following conclusion:
The product of conception is a human being in a special time of its
development, part of a continuum that begins in the uterus, passes through
childhood, adolescence and adulthood, and ends in death. The fact that a
fetus depends on the placenta for life and can't survive independently
doesn't nullify its existence as a human being. A diabetic is wholly
dependent on insulin, but that doesn't make him less human. I had to face
the fact that in an abortion human life of a special order is being taken
. . . .45
Dr. Nathanson has partially solved his personal dilemma by giving up the
special practice of abortion, and by utilizing his medical skills to save
unborn human life. He admits that this does not perfectly settle the matter.
In attempting to reach a societal solution that faces up honestly to the
implications of abortion Dr. Nathanson notes:
There has to be the premise that something of value exists in a pregnant
uterus. In an abortion, it is removed and lost. I don't think we can pretend
to a sense of decency or to a standard of respect for life unless we feel
that sense of loss -- individually and collectively.46
Finally in an article in the New England Journal of Medicine,
Drs. Raymond Duff and A. G. M. Campbell indicated that of 299 consecutive
deaths in a special-care nursery in Yale-New Haven Hospital, 43 infants were
allowed to die because medical treatment that might have preserved life was
withheld.47 The Journal article generated a widespread
discussion about the ethical, legal and scientific propriety of withholding
treatment and allowing infants to die, and the abortion decisions of the
U.S. Supreme Court have conditioned the discussion. The Court held that
prior to birth the fetus is not a person in the whole sense, and that the
state has interest in protecting the fetus only when it "has the capability
of meaningful life outside the mother's womb."48 These
designations, "persons in the whole sense" and "capability of meaningful
life," were created by the Court and have no basis in science or law. They
are fabrications that deny the legal personhood of the unborn, and they are
increasingly applied to diminish the value of human life for infants, the
terminally ill and those who are senile. Because of the genetic identity and
developmental continuity of the fetus and premature or newborn infant, a
denial of the fetus' humanity easily transfers to the newborn infant.
Neither can talk, engage in abstract thinking, or survive without support
systems. Moreover, if unborn life can be bartered away for socioeconomic
reasons or reasons of maternal convenience, why not apply the same calculus
to the newborn, especially if he or she is limited in potentiality for life?
In fact, some doctors have justified withholding treatment rather than
allowing the infants to survive and face lives devoid of "meaningful humanhood,"
and others have suggested that quality of life is a value that must be balanced
against the sanctity of life.49 The pernicious theorizing of Roe and
Doe creates a prejudice against protecting the lives of newborn infants and sick
children, and it provides the basis for a eugenic policy that endangers infants
and children as well as the unborn.
IV. THE IMPACT OF ROE AND DOE ON AMERICAN LIFE
In its opinions in Roe v. Wade50 and Doe v. Bolton,51
the United States Supreme Court attempted to fashion a newly found
constitutional right nowhere explicated, or even hinted at, in the Constitution
itself. This new right, to abort at will, purportedly finds its validity in the
penumbra of the Ninth Amendment. The enunciation of penumbral rights on the
basis of the Ninth Amendment is not new.52 What is novel is the
apparent willingness of the Supreme Court to embark upon the generally uncharted
seas of the Ninth Amendment while refusing to answer the threshold question,
whether an abortion destroys a live human being. This refusal is the crucial
error of the Court.53 The Supreme Court "simply fashion(ed) and
announce(d) a new constitutional right for pregnant mothers . . . with scarcely
any reason or authority for its action . . . ."54 These decisions
are, quite simply, an arrogant display of "raw judicial power"55 and
an "improvident and extravagant exercise of the power of judicial review which
the Constitution extends to this Court."56
As Archibald Cox has noted in his recent work on the Supreme Court, the
decision in Wade "fails even to consider what I would suppose to be the most
important compelling interest of the State in prohibiting abortion: the
interest in maintaining that respect for the paramount sanctity of human
life which has always been at the centre of Western civilization, not merely
by guarding life itself, however defined, but by safeguarding the penumbra,
whether at the beginning, through some overwhelming disability of mind or
body, or at death."57 The Court's shocking failure to recognize
the import of the protection of human life is matched only by the absence of
any legal justification for the action. As Mr. Cox has stated: "Neither
historian, laymen, nor lawyer will be persuaded that all the details
prescribed in Roe v. Wade are part of either natural law or the
Constitution. Constitutional rights ought not be created under the Due
Process Clause unless they can be stated in principles sufficiently absolute
to give them roots throughout the community and continuity over significant
periods of time, and to lift them above the level of the pragmatic political
judgments of a particular time and place."58
Roe and Doe are fraught with seriously dangerous implications in
themselves; with contradictions in the context of the American legal ethic;
and with many conflicting and contradictory resultant threads.
The difficulty in the Supreme Court's reasoning itself is the willingness of
the Court to base one's right to constitutional protections on one's ability to
possess the "capacity of meaningful life."59 Such a rationale is
frightening, finds no support in our jurisprudential ethic and cannot go
The position of the Supreme Court further contradicts the traditional -- and
expanding -- posture of the American legal system to view the unborn child as
inherently possessing a full range of rights accorded only to human persons. It
has been noted that:
"If the unborn can inherit by will and by intestacy, be the beneficiary of
a trust, be tortiously injured, be represented by a guardian seeking support
from the parents, be protected by criminal statutes on parental neglect --
to hold that, nevertheless, the unborn child may be deprived of its
inalienable right to its very life at the direction of the mother, for any
reason or no reason, is to make the law something of a schizophrenic."60
The conflicting and contradictory threads of the Supreme Court's position
threaten to unravel our societal and legal fabric. Mr. Justice Holmes once
"I think the proper course is to recognize that a state legislature can do
whatever it sees fit to do unless it is restrained by some express
prohibition in the Constitution of the United States or of the State, and
that Courts should be careful not to extend such prohibitions beyond their
obvious meaning by reading into them conceptions of public policy that the
particular Court may happen to entertain."61
Nonetheless, we are told by both the Supreme Court and by lower courts
which look to the Supreme Court for guidance, that the rights of the several
states in this area are so tightly circumscribed as to be, in many cases,
meaningless. What is more disturbing is the obligation imposed upon
government by several courts to fund -- with tax dollars -- the provision of
abortion services.62 The Supreme Court position has been viewed
as proscribing the ability of anyone to restrain the decision of a woman to
have an abortion, whether that person be parent or spouse.63 It
has been held that public hospitals must provide abortion services,64
and it is even being suggested that all hospitals, private, public and
religious, must make their facilities available for abortion.65
It is clear that an a priori legal principle enunciated by the
Supreme Court has become the norm whereby reality is to be defined: state
legislatures possess only minimal power to legislate on matters pertaining
to the health and welfare of its citizens; a right of privacy must be
financed by public moneys; familial and marital relationships must cease to
be; medical personnel and facilities must yield their professional judgement
and moral will to the order of the state.
A monstrous system of conflicting rights is in the making. The pregnant woman
has been given a new constitutional right whereby she is cut off from all social
contact and support except that which has only one purpose: the destruction of
her child. Right is wrong, and wrong is right. All rational norms of conduct
must yield to the absolute legal norm.
What the Court has created is a new legalism that is destructive of the human
There is present to every government the danger that it will make itself the
originator of human rights. On the contrary, good government recognizes that
rights are derived from a source that is prior to and transcends the government.
Prior to Roe and Doe American law was engaged in the gradual and
complex process of articulating the rights that naturally inhere in the unborn
child. This process recognized that human rights derive first from nature and
God, and on this basis a classic case of the evolution and recognition of basic
human rights was in progress.
However, Roe and Doe broke off this evolutionary development. The rights of
the unborn child could no longer be balanced along with the rights of others.
Any rights that may exist in the unborn child equaled a legal zero, for their
rights were now always secondary and expendable.
It is inconsistent with our tradition of human and civil rights that a class
of human beings are expendable. Unless the Supreme Court's rulings in Roe and
Doe are reversed, American law will have committed itself to a course in history
in which the human rights of none of us are secure.
V. THE ISSUE OF RELIGIOUS FREEDOM
In the current discussion of a constitutional amendment to protect human
life, the issue of religious freedom has been given prominent attention. It has
been argued for various reasons that the passage of a constitutional amendment,
and the consequent passage of restrictive abortion laws, would violate, infringe
upon or constrain the religious freedom protected under the First Amendment. We
do not agree with such arguments, and we raise the question whether state
support and endorsement of abortion on request, and government funding of
abortion on request violate the rights of conscience of those who are opposed to
abortion. We now take up a discussion of these issues in greater detail.
1. It has been argued that a constitutional amendment to prohibit abortion,
or to return to the states the power to prohibit or regulate abortion, is based
on the religious teaching of one church, and such amendments or laws if enacted,
would constitute an establishment of religion. In point of fact, those who
support the passage of a constitutional amendment are motivated to do so from
their convictions concerning human dignity, the right to life of the unborn, and
the responsibility of the state to protect basic human rights, and not from a
desire to impose the morality of any church on the overall society.
Human dignity and the right to life as a fundamental human right are
proclaimed by the Declaration of Independence and the Constitution of the United
States, as well as by the United Nations Declaration of Human Rights. The
underlying basis of human dignity may be perceived in different ways. Catholics,
as well as other Christians and Jews, believe that human dignity derives from
God's creation of each individual. Humanists, and many people of no particular
religious persuasion see human dignity as based on the inherent value of the
individual person. This has resulted in a commonly held tradition that has long
been enshrined in law. That tradition was asserted by our Founding Fathers, who
explicitly stated 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." Are we now willing to reject the principles on which
this Republic is founded simply because they reflect beliefs that are rooted in
religious as well as secular tradition?
The Supreme Court in Roe and Doe situated its deliberations on legally
protecting unborn human life in the context of when human life begins. The Court
argued that it could find no consensus in medicine, philosophy and theology on
this point, and thus declined to take a position. For practical purposes, the
Court did choose birth as the point at which personhood occurs, and the point
from which constitutional protection accrues. Furthermore, in light of Roe and
Doe, it is asserted that associating the beginning of life with conception is a
religious belief of the Catholic Church, and thus to adopt that view point would
be to establish Catholic theology in public law. But the beginning of human life
is a point on which considerable scientific consensus does exist, and on which
medical and scientific data is acknowledged by philosophy and theology. A
careful reading of the data of genetics, biology and fetology, which we have
summarized in our Senate testimony, indicates that scientists are in agreement
that at fertilization, the union of sperm and ovum constitute the beginning of
the developmental process of a new and unique human being, who -- given no
interference or interruption -- will grow and develop in the womb and will
ultimately begin at birth the state of human infancy.
Consensus may not exist as to what constitutes personhood in a philosophic
sense. However, it is not the absence of consensus in "medicine, philosophy and
theology" that allows the wanton destruction of unborn human life, but the
Court's own interpretation of these sciences which led to the faulty conclusion
that human life is absent any value and deserves no legal protection until
possibly the sixth or seventh month of gestation, and that even at that point,
the state's protection of unborn human life is so qualified that such protection
is actually meaningless.
Moreover, although the religious communities and ethical scholars may
approach the morality of abortion in different ways, no religious body teaches
that abortion is essentially good and a moral or ethical imperative in all
cases. In fact, the preponderant witness of Catholic moralists, of Christian
ethicists, and of spokespersons for the Orthodox Jewish community indicates that
abortion on request is considered morally objectionable by each tradition. If
anything, the opinions of the Supreme Court in Roe and Doe
constitute a new morality of abortion on request asserted by the Court and
unwaveringly propagated by those who profess belief that a woman has an absolute
right to do as she wishes with her body, which includes destroying her unborn
child at any point during pregnancy.
2. These arguments have led to the assertion that any amendment or law that
does not proceed from wholly secular reasons is a direct assault on the freedom
of conscience protected by the First Amendment.66 However, in the
last quarter century the nation has welcomed the moral suasion of the churches
and religious communities on legal issues to inform the consciences of
individuals and to motivate them to support social justice and human rights. In
such instances, a moral principle is often held in common by the churches and by
people of no particular religious persuasion. It may be supported by scientific
data, constitutional or legal perspectives, or historical precedent. So for
example, public moral consensuses developed that racism is evil, that poverty
endangers human dignity, that war, violence and armed conflict threaten human
life. Thus, with the assistance and motivation of religious groups, civil rights
and poverty legislation resulted, as did Congressional initiatives to terminate
the Vietnam war. The legislation was not and could not be described as an
imposition of religious teaching, but neither was it "wholly secular." Most
importantly, although the laws reflected commonly held religious beliefs, the
primary role of the churches and religious groups was in motivating their people
to accept, support and ultimately achieve the values that the laws sought to
protect. The initial laws may have fallen short of the moral ideal, but their
passage helped the public morality to crystallize.
A final point merits consideration. Some religious leaders, and some groups
of religious organizations claim a right to reproductive freedom, based on
religious belief, which requires absolutely free access to abortion.67
If reproductive freedom is a religious tenet requiring abortion on request, then
legislation effectuating abortion on request may be a violation of the First
Amendment. In the past, however, ethical scholars who have defended abortion as
morally permissible in certain cases have argued that it was acceptable only as
an alternative to a more serious evil.
3. A third argument holds that while religious freedom demands that the state
may not prohibit or restrict abortion, it is imperative that the state in its
social policies and public assistance and health care programs, guarantee the
availability of abortion on request to anyone who so desires it.68
This involves the state in establishing policies that approve abortion and that
in some cases may subtly coerce people toward using abortion to avoid bearing a
child that others, including employees of the state, consider untimely,
unplanned or undesirable. It also requires the state to fund abortion services
for all who wish them.
We hold that the state has a serious obligation to protect the life of the
unborn child, and that such protection is consistent with our traditional value
of human life. Moreover, the state has a serious obligation to avoid and protect
against any type of coercion, even if it requires restrictive abortion policies.
This includes maintaining protection for the conscience of individuals who
oppose abortion, and for those institutions that refuse to provide abortion
services. Legislation to protect conscience, modeled on those sections of
Georgia's abortion law that were found constitutionally acceptable by the
Supreme Court, has been enacted by Congress, but it has been consistently
attacked as unconstitutional. These attacks insist that all hospitals be
required to perform an appropriate share of abortions, and this is clearly an
attack on the religious principles of some hospitals. Moreover, when public
funds are allocated for abortion on request, this constitutes a violation of the
consciences of the vast majority of Americans who continue to oppose permissive
In summary, then, we reject any assertion or implication that the Catholic
Church, in exercising its right to uphold and speak out in favor of the
fundamental right to life, is in fact attempting to impose its morality on the
nation. We further reject the assertion that unless a constitutional amendment
or a restrictive abortion law proceeds from a wholly secular purpose, it must be
rejected as an attack on the First Amendment.
Moreover, we oppose initiatives of the state to endorse and promote abortion
on request in social policies and health care programs as an inappropriate
exercise of state power and as a violation of the religious liberty of those who
do not wish to support or pay for permissive abortion.
Finally, we believe that the right to amend the Constitution is in fact a
right protected by the First and Ninth Amendments.
Abortion is a highly complex issue, embodying theological, philosophical,
medical and legal perspectives. A free discussion of all facets of this problem
is entirely consistent with the democratic process and with rights of religious
liberty that have enjoyed constitutional protection. We consider it our right
and prerogative to be a part of that discussion, and to speak out forcefully and
continuously in support of respect for human life, including that of the unborn.
Indeed, we are convinced that we would be remiss in our duty if we were to
refrain from speaking in behalf of human life, and in urging the development of
a system of justice that provides legal protection for the right to life of all
human beings, born and unborn.
There are presently before this Subcommittee a large number of proposed
amendments to re-establish a system of justice that allows legal protection of
the life of each unborn child. These amendments differ not only in their verbal
formulation, but they express fundamentally different approaches to protecting
unborn life. One category of amendments asserts personhood for the unborn, and
provides the full protection of the Constitution for all human rights to the
unborn. This type of amendment also provides for the enactment of state laws
prohibiting or restricting abortion.
A second category of amendments essentially restores to the states the
power to prohibit, restrict or regulate abortion. However, this so-called
"states rights" approach does not require any state to enact a law, it does not
create a model, and it is unlikely to achieve uniformity in the various states.
In the past year, a new formulation has been proposed that explicitly affirms
that the state shall have the power to protect all human life, including that of
the unborn. This formulation differs from the customary states' rights
formulation in that it positively affirms the value of unborn human life,
thereby creating a predisposition in favor of protecting such life.
On repeated occasions in recent years, the U.S. Catholic Conference has urged
the passage of a human life amendment, and we restate that policy today.
We have refrained from endorsing any specific amendment before the Congress.
Instead, in our testimony before the Senate Subcommittee, we suggested four
principles that we believe should guide the legislative process in formulating
an amendment that provides a constitutional base for legally protecting unborn
human life. These principles, we believe, express the values consistently
affirmed in our nation, and they respect the constitutional foundations and
parameters of our legal tradition. We restate these four points as basic to the
process of formulating a constitutional amendment:
1. Establish that the unborn child is a person under the law in 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
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 to 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.
We are aware that considerable controversy has raged concerning the moral,
legal and political acceptability of the various proposals now under
consideration by this Subcommittee. However, in the interest of protecting the
fundamental human right of all human beings, the right to life, we offer our
recommendations and strong urging that the Subcommittee approve and recommend
passage of a constitutional amendment that embodies the values expressed by the
four principles cited above.
By appearing before this Subcommittee, we also take responsibility for being
part of the legislative process. We look upon this as a dialogue -- a dialogue
based on fundamental principles of morality and law, a dialogue that must take
into account the destruction of the lives of almost one million unborn children
each year, a dialogue that carefully defines any possible conflict of
fundamental human rights, a dialogue that admits and states the reasons for the
limits of law in protecting fundamental human rights. We do not believe that the
dialogue was well served by the action of the Senate Subcommittee in rejecting
the proposed amendments submitted for its consideration. The effort of the
Subcommittee Chairman to explain that action was deficient because it failed to
deal with the substantive strengths and weaknesses of the various proposals, or
to provide reasons for refusing to recommend any of those proposals to the
attention of the full Committee.
We appear here today because we respect the democratic process. We submit the
principles that we believe harmonize moral values on the one hand, and
constitutional principles on the other. We urge the adoption of an amendment
that provides universal constitutional protection for unborn human beings. In
our society other viewpoints will seek consideration -- the viewpoints of
constitutional and judicial experts, of members of Congress, and of those who
hold a fundamentally different view on the value of unborn human life. In a
variety of ways we have already heard these viewpoints expressed, and we remain
unconvinced by the arguments against protecting unborn human life.
Thus, we urge this Subcommittee to take special note of the dehumanizing
situation of abortion on request that has resulted from Roe and Doe,
and to take steps toward correcting that situation by approving a constitutional
amendment that restores the protections of the Constitution to the unborn, and
provides for a legal structure that will specifically protect human life at
every stage of its existence.
1 One year after the Supreme Court's abortion rulings, in the March 4,
1974 issue of U.S. News and World Report, Dr. Judith Blake, who has analyzed
public opinion on abortion since 1962, stated: "The country remains
conservative. There has been no change at all on public opinion . . . . If
there was a referendum today asking people to approve abortion if the woman
doesn't want a child, there is no way it could pass. People don't think
women should have abortions just to get rid of a child." For more
information see Professor Blake's more extensive studies: "Abortion and
Public Opinion: The 1960-1970 Decade," Science, Vol. 171 (Feb. 12, 1971),
540-549: "Elective Abortion and Our Reluctant Citizenry: Research on Public
Opinion in the United States," in The Abortion Experience: Psychological and
Medical Impact, eds. Howard J. Osofsky and Joy D. Osofsky (Hagerstown, Md.:
Medical Department, Harper & Row, Publishers, 1973), pp. 447-467.
2 Cf. Ely, John H., "The Wages of Crying Wolf: A Comment on Roe v. Wade," The
Yale Law Journal, April, 1973.
Bickel, Alexander, The Morality of Consent, (1975), New York, Yale University
Byrn, Robert, "An American Tragedy: The Supreme Court on Abortion,"
Fordham Law Review, (May, 1973).
Black, Charles L., Book Review of The Role of the Supreme Court in American
Government by Archibald Cox, The New York Times Book Review, February 29, 1976.
3 Model Penal Code (Philadelphia: American Law Institute, 1962), pp. 189-191.
The ALI code was first proposed in 1955. At that time the state laws generally
prohibited abortion except to save the life of the mother. For a summary of
these laws see, "Appendix A: Abortion Laws in the United States," Abortion in
the United States, ed. Mary S. Calderone (NY: Hoeber-Harper, 1958), pp. 187-195;
Eugene Quay, "Justifiable Abortion: Medical and Legal Foundations," The
Georgetown Law Journal, Vol. 49, No. 3 (Spring, 1969), Appendix I, 447-520.
4 The Oregon law defined risk to the mother's health as including "the
mother's total environment, actual or reasonably foreseeable" (Oregon Laws,
1969, Ch. 684, Sec. 3(2)).
5 Christopher Tietze, "Therapeutic Abortions in the United States," American
Journal of Obstetrics and Gynecology (July 15, 1968), 784-787.
6 Center for Disease Control: Abortion Surveillance: 1973, issued May
1975, Table 1. The CDC figures are generally considered conservative,
representing known minimums. From 1969 on the reporting methodology improved
(more states reporting with greater accuracy), but this improvement also
reflects the fact that in time the practice of abortion factually became more
widespread and thus more susceptible to reporting.
7 U.S. v. Vuitch, 305 F. Supp. 1032, (District of Columbia, 1969).
Judge Gesell's ruling that the law of the District of Columbia was
unconstitutionally vague was appealed to the U.S. Supreme Court which, on April
21, 1971, reversed, but holding that health includes both physical and
psychological well-being. U.S. v. Vuitch, 402 U.S. 62 (1971) (slip opinion, pp.
8 The laws in the states of Georgia, Illinois, Texas and Wisconsin were
declared unconstitutional. See Martin F. McKernan, Jr., "Recent Abortion
Litigation," The Catholic Lawyer, Vol. 17, No. 1 (Winter, 1971).
9 The 1967 California law narrowly defined mental health to mean "mental
illness to the extent that the woman is dangerous to herself or to the person or
property of others and is in need of supervision or restraint" (California
statutes, 1967, Ch. 327, Sec. 1). In 1968, the first full year in which the new
law was in effect, 5,018 legal abortions were performed. In 1969 this figure
reached 15,339, but in 1970 it jumped to 65,369, and in 1971 it jumped again,
this time to 116,749. Therapeutic Abortion in California: A Biennial Report
Prepared for the 1974 Legislature, State of California, Dept. of Health,
Table 1. The overwhelming percentage of abortions were sought on grounds of
mental health. Only a permissive interpretation of the law's definition of
mental health can reasonably account for the major increase in numbers in 1970
The permissive interpretation of the California law is all the more important
because the number of abortions performed in California in 1970 and 1971
represents, respectively, 33% and 24% of the national total.
10 Then Governor Rockefeller vetoed the repeal measure. "Governor Vetoes
Abortion Repeal as Not Justified," New York Times, May 14, 1972.
11 CDC, Abortion Surveillance, 1973, Table 3.
12 "Bitterness Swaddles Unborn as Abortion Vote Nears," National Observer,
Oct. 21, 1972.
13 Judith Blake, "Abortion and Public Opinion: the 1960-1970 Decade,"
Science, Vol. 171 (Feb. 12, 1971), 540-549.
14 A brief review of abortion legislation world-wide can be found in
Christopher Tietze and Marjorie Cooper Murstein, Induced Abortion: 1975
Factbook, 2nd ed. (NY: The Population Council, 1975), Table 1.
15 White, J., Dissenting in Doe v. Bolton, 410 U.S. 179 at 222.
16 Statement to the Cedar Rapids, Iowa Chamber of Commerce, Jan. 24, 1973 (AP
17 See Table 1, note 1.
18 See Carl W. Tyler, Jr. and Jan Schneider, "The Logistics of Abortion
Services in the Absence of Restrictive Criminal Legislation in the United
States," American Journal of Public Health, Vol. 61 (March, 1971), 490491, for a
discussion of this matter. Japan reached a peak abortion ratio of 720 after nine
years (unofficial figures are higher, see Induced Abortion: Factbook 1975,
Table 2d). The average peak ratio for five Eastern European countries is 630
legally induced abortions per 1,000 live births. For the most current statistics
world-wide on the yearly total figures, rates and ratios, see Induced
Abortion: Factbook 1975, Tables 2a-2d.
19 Provisional Estimates of Abortion Needs and Services (NY: Planned
Parenthood, 1975), pp. 31-36.
20 Tyler and Schneider, p. 491. The Tyler and Schneider projection of 500
abortions per 1,000 live births is compatible with the Planned Parenthood
estimates of the potential number of abortion recipients in 1973. Cates and
Smith, "Abortion Survey," Family Planning Perspectives, Vol. 7 (Mar./April,
1975), 50, wonder if the U.S. as a whole would not peak early rather than late.
21 Post Roe and Doe the term illegal abortion generally refers
to abortions that are not performed under the direction of a licensed physician.
The abortion could be self-induced or it could be performed by someone else.
Prior to the advent of abortion on request, it was generally admitted that
most illegal abortions were performed by licensed physicians. See Christopher
Tietze, "The Effect of Legalization of Abortion on Population Growth and Public
Health," Family Planning Perspectives, Vol. 7, No. 3 (May/June, 1975), 124.
22 "Ch. 10: Report of the Statistics Committee (May 29, 1957)," Abortion in
the United States, ed. Mary S. Calderone, p. 180. The findings of this committee
were reconfirmed by its chairman, Dr. Tietze, in 1969: "No new data on which to
base a more reliable estimate have become available since." Christopher Tietze,
"Induced Abortion as a Method of Fertility Control," in Fertility & Planning:
A World View, eds. S. J. Behrman, Leslie Corsa, Jr., Ronald Freedman (Ann
Arbor: University of Michigan, 1969), p. 311.
The traditional estimates of the incidence of illegal abortion were generally
derived from surveys. One study in the late 1960's employed a new survey
technique, but its methodology is still experimental. Induced Abortion: 1975
Factbook, pp. 4-5. "No reliable method has yet been developed to estimate
the numbers of illegal abortions" (ibid, p. 13).
23 A discussion and listing of sources can be found in Fred E. Mecklenburg,
M.D., "The Indications for Induced Abortion: A Physician's Perspective," in
Abortion and Social Justice, eds. Thomas W. Hilgers and Dennis J. Horan (NY:
Sheed & Ward, 1972), pp. 50-51.
24 The Commission on Professional and Hospital Activities of Ann Arbor,
Michigan, maintains records of such data from about one-third of all U.S.
hospitals. These data have not been analyzed and studied in scholarly
publications. The 1974 data projected for the whole United States show some
6,000 hospital admissions for abortions that were not performed under medical
supervision. Code 642, Hospital Adaptation of ICDA (H-1 CDA), 2nd ed.,
Commission on Professional and Hospital Activities, 1973. The comparable
category for 1969 shows some 2,000 admissions. Code 642, Hospital Adaptation of
ICDA (H-ICDA), 1st ed., Commission on Professional and Hospital Activities,
1968. Spontaneous abortions, some of which may have resulted from illegally
induced or attempted abortions, are classified separately.
And, thus, according to these data more patients were admitted into U.S.
hospitals for treatment of septic abortions in 1974 than in 1969. This evidence
confirms that illegal abortion activity continues. It also indicates that the
problem of illegal septic abortions has increased.
25 Ronald S. Kahan, Lawrence D. Baker, Malcolm G. Freeman, "The Effect of
Legalized Abortion on Morbidity Resulting from Criminal Abortion," American
Journal of Obstet. & Gynecol., Vol. 121, No. 1 (Jan. 1, 1975), 115. This study
was conducted at Grady Memorial Hospital in Atlanta, Ga. Grady Hospital serves
the medically indigent of the two counties of Fulton and DeKalb.
Septic abortions of unknown or suspicious origins are presumed indicators of
illegal activity. The Grady Hospital study reduced the area of presumption, and
thus of interpretation by the investigator, by including only those septic
abortion patients who admitted to having had an illegal abortion.
26 The study was conducted from the beginning of 1969 to the first quarter of
1973. In the first quarter of 1969 sixteen septic abortion patients were
admitted (the average for each quarter in 1969 was 16.5). In the first quarter
of 1973-when the abortion to live birth ratio has climbed to 356/1,000-the
number of septic abortion patients admitted was five.
The Georgia abortion law was successfully challenged in federal court in
1970. In 1970 Grady Hospital began performing more legal abortions, and, at the
same time, the number of illegal septic abortion patients increased (an average
of 24.2 for each quarter in 1970 and 23.0 for each quarter in 1971). This high
ratio was maintained until the second quarter of 1972 when the figure suddenly
dropped to nine. There was no corresponding sudden increase in the number of
abortions that were being performed.
The authors of this study admit that they cannot be certain that the
availability of legal abortion was the cause in the drop in illegally induced
septic abortions (pp. 115-116).
27 CDC Abortion Surveillance, 1973, p. 7.
28 One study estimates the possible overall increase in the incidence of
abortion in the 40% range. Christopher Tietze, "Two Years' Experience with a
Liberal Abortion Law: Its Impact on Fertility Trends in New York City,"
Family Planning Perspectives, Vol. 5, No. 1 (Winter, 1973), 36-41. Also see,
Christopher Tietze, "The Effect of Legalization of Abortion on Population Growth
and Public Health," Family Planning Perspectives, Vol. 7, No. 3
(May/June, 1975), 123-124. Dr. Tietze's basic argument is that a decline in New
York City births in 1970-72 was caused by the overall increase in the incidence
There are many variables in the study that could affect the results. It
cannot be ruled out that the permissive atmosphere accompanying the easy
abortion policy brought about an increase in the total number of pregnancies
that could be aborted.
It is questionable whether this analysis of births and abortions in New York
City can be legitimately projected for the whole nation. As Dr. Tietze himself
notes in the New York City study, "The extent to which legal abortions have
replaced illegal procedures depends primarily on the number of illegal abortions
in the community prior to legalization . . . ." (p. 40). It is not impossible
that the largest metropolitan area in the country had one of the highest illegal
abortion rates prior to legalization. And thus, if the New York City resident
abortion ratio is projected for the whole country, as is currently being done,
Provisional Estimates of Abortion Need and Services, p. 21, the overall increase
may be higher elsewhere.
A study of a projective nature places the potential overall increase in a
range almost double that suggested by Tietze, Tyler and Schneider, pp. 489-491.
The overall increase will be derived from the elimination of unwanted
pregnancies. In addition to whatever number of illegal abortions were being
performed each year, it has been estimated that one-fifth of all live births in
the United States were the result of unwanted pregnancies. This study postulates
that legalization will have a great influence on attitudes and thus on the
demand for abortion (p. 489). In a subsequent publication Tyler expressed the
view that the ongoing practice of legal abortion supported the high level of
projected response. Carl W. Tyler, Jr., "Abortion Services and Abortion-Seeking
Behavior in the United States," in The Abortion Experience: Its Psychological &
Medical Impact, eds. Osofsky and Osofsky, pp. 43-44.
29 In his New York City study Dr. Tietze notes six categories of pregnancies
that can be expected to be legally terminated under a non-restrictive policy (p.
40). Also see the discussion by Tyler, "Abortion Services and Abortion-Seeking
Behavior in the United States," p. 44.
30 Provisional Estimates of Abortion Need and Services, pp. 31-36.
31 That is, individuals who would not have sought any abortions prior to
legalization now obtain illegal ones. See notes 24 and 26 above for evidence of
some kind of increase in illegal abortion activity.
32 As one authority has stated, "In terms of mortality, illegal abortion is
no longer a major public health problem in the United States." Christopher
Tietze, "Somatic Consequences of Abortion," in Abortion, Obtained and Denied:
Research Approaches, ed. by Sidney H. Newman, et al. (NY: The Population
Council, 1971), pp. 13-14. Even so, the claim that 5,000-10,000 women died each
year from illegal abortions was often made in the public debate. A careful
discussion of the literature on this problem can be found in Germaine Grisez,
Abortion: the Myths, the Realities, and the Arguments (NY: Corpus Publications,
1970), pp. 67-72.
33 One study shows that the decline in abortion-related maternal mortality
decreased beginning in 1968. "More women are dying at the present time than what
one would have expected if, in fact abortion had never been legalized." Thomas
W. Hilgers, M.D., Testimony Given Before the Royal Commission on Human
Relationships, (May 21, 1975, Sidney, Australia), pp. 31-32.
Legalization has not eliminated abortion-related maternal deaths. Maternal
deaths resulting from legal abortion have remained relatively constant for the
years 1972-74 at, respectively, 21, 24, and 23. Table 2, note 2. That is, there
was no decline. Illegal abortion deaths also still occur, but for the years
1972-74 they have shown a decline, respectively, from 40, to 19, to 6. It would
appear that deaths that may have resulted from illegal abortions are now
resulting from legal abortions.
Also, it should be remembered that the Supreme Court rulings allow abortions
to be performed up to birth itself. The number of abortions performed in the
second and third trimesters are proportionately less than those performed in the
first trimester. However, when abortions are performed in the second and third
trimesters, the procedures used, saline and hysterotomy/hysterectomy, are,
respectively, ten to forty times more dangerous to the woman's life than
procedures used in the first trimester. CDC, Abortion Surveillance, 1973, Table
34 ". . . [I]t is likely that many women who would undergo legal abortions
would not resort to criminal methods . . ." (emphasis added). Kahan, et.
al., "The Effect of Legalized Abortion on Morbidity Resulting from Criminal
Abortion," p. 115.
35 See discussion in Hilgers, Testimony Before the Royal Commission,
36 See Provisional Estimates of Abortion Need and Services, pp. 21-24.
37 An analysis of the extensive literature on this phenomenon can be found in
Hilgers, Testimony Given Before the Royal Commission, pp. 20-51 and in
his earlier work, "The Medical Hazards of Legally Induced Abortion," in Abortion
and Social Justice, pp. 57-85.
38 See J. K. Russell, "Sexual Activity and its Consequences in the Teenager,
Clinics in Obstetrics and Gynecology, Vol. 1. No. 3 (Dec., 1974), 683-698;
Andre E. Hellegers, M.D., Testimony Submitted Before the Senate Judiciary
Subcommitee on Constitutional Amendments, April 25, 1974, and, "Medical and
Ethical Problems in Adolescence," Washburn Memorial Lecture in Pediatrics,
University of Colorado School of Medicine, Denver, Col., May 5, 1975; Induced
Abortion: 1975 Factbook, p. 50.
39 Doctor Convicted in Fetus Death," Washington Star, Feb. 16, 1975.
40 "Abortion-Homicide Defendant Testifies," Washington Post, Jan. 31,
41 "The Unborn Child and the Law: When Is It Murder?" New York News,
July 20, 1975.
In State v. Anderson, 135 N.J. Super. 423 (Law Division, 1975) the Superior
Court of New Jersey ruled that one could be charged with homicide for shooting a
pregnant woman whose unborn child ultimately died as a result of such shooting
although the mother herself lived. This decision is the inevitable result of the
pronouncements of the Supreme Court in Roe v. Wade and Doe v. Bolton and it
points out the ludicrous and anomalous position of what purports to be
constitutional protections. No longer is the Fifth Amendment's protection of our
right to life to be viewed in an objective sense. Rather, we have laid the
groundwork for interpreting the Fifth Amendment on the basis of who is depriving
whom of life - in cases where the deprivation is not the action of the state or
its agents. This has placed the Fifth Amendment - which is the keystone of all
that protects our lives, our liberty and our property - on the quicksand of
judicial whim. Nothing could be more destructive of our fundamental liberties.
42 Morison, R. and Twiss, S., "The Human Fetus as Useful Research Material,"
The Hastings Center Report, April, 1973.
43 Ramsey, P., The Ethics of Fetal Research, (1975) New York, Yale University
44 Nathanson, B., "Deeper Into Abortion," (Sounding Board) New England
Journal of Medicine, Nov. 28, 1974.
45 Remsberg, Charles and Bonnie, "Second Thoughts on Abortion From the Doctor
Who Led the Crusade for It," Good Housekeeping, March, 1976.
47 Duff and Campbell, "Moral and Ethical Dilemmas in the Special Care
Nursery," New England Journal of Medicine, Oct. 25, 1973.
48 Roe v. Wade, 410 U.S. 113, at 163.
49 "Letting Patients Die Called Common Place," Washington Star-News,
Oct. 28, 1973.
"Management of the Infant with Unmanageable Disease," (Letters to the Editor)
New England Journal of Medicine, Feb. 28, 1974.
"Doctors, Parents Let Deformed Babies Die," The National Observer,
Nov. 10, 1973.
50 410 U.S. 113 (1973).
51 410 U.S. 179 (1973).
52 See, for example, Loving v. Virginia, 388 U.S. 1 (1967) and
Griswold v. Connecticut, 381 U.S. 479 (1965).
53 Byrn, "An American Tragedy: The Supreme Court on Abortion," 41
Fordham Law Review 807, 813 (1973).
54 White, J., Dissenting in Doe v. Bolton, 410 U.S. 179 at 221-222.
55 Ibid. at 222.
57 Cox, Archibald, The Role of the Supreme Court in American Government
(NY: Oxford University Press, 1976), p. 53.
58 Ibid., p. 114.
59 410 U.S. at 163.
60 See, generally, Archibald "The Law as a Schizophrenic" 23 Res Ipsa
Loquitur 12 (1970).
61 See, Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade," 82
Yale Law Journal 920, 938 (1973).
62 See, for example, Doe v. Wohlgemuth, 42 L.W. 2589 (W. D. Penn.
63 Poe v. Gerstein, 517 F. 2d. 787 (5th Cir. 1975).
64 See, for example, Doe v. Hale Hospital, 500 F. 2d, 144 (1st Cir.
65 Statement of Judith Mears before the Subcommittee on Civil and
Constitutional Rights, Committee on the Judiciary, United States House of
Representatives, February 5, 1976.
66 U.S. Civil Rights Commission, Constitutional Aspects of the Right to Limit
Childbearing, 1975, Washington, D.C.
67 Cf. Brief For Planned Parenthood of Central Missouri, A Missouri
Corporation, David Hall, M.D., and Michael Freiman, M.D., Appellants and
Cross-Appellees, in the Supreme Court of the United States, January Term, 1975,
p. 36; Press Release of Religious Coalition for Abortion Rights, Washington,
D.C., January 21, 1976.
68 Population and the American Future, The Report of the Commission on
Population Growth and the American Future, 1972, Washington, D.C., U.S.
Government Printing Office.