ABORTION— PART 3
RECEIVED
HEARING btc2oi976
BEFORE THE
SUBCOMMITTEE d# LAW umm-
CONSTITUTIONAL AMENDMENTS
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-THIRD CONGRESS
SECOND SESSION
ON
S.J. Res. 119
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE
UNITED STATES FOR THE PROTECTION OF UNBORN CHILDREN
AND OTHER PERSONS
AND
S.J. Res. 130
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE
UNITED STATES GUARANTEEING THE RIGHT OF LIFE TO THE
UNBORN, THE ILL, THE AGED, OR THE INCAPACITATED
Part 3
Printed for the use of the Committee on the Judiciary
faJMhiM/lX.S
U.S. GOVERNMENT PRINTING OFFICE
57-782 O WASHINGTON : 1975
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20102 - Price $4.10
JflOTHEASTERN UNIVERSITY SCHOOL of LAW LIBRARY
COMMITTEE ON THE JUDICIARY
93d Congress, 2d Session
JAMES O. EASTLAND, Mississippi, Chairman
JOHN L. McCLELLAN, Arkansas ROMAN L. HRUSKA, Nebraska
SAM J. KKVIN, Jr., North Carolina HIRAM L. FONG, Hawaii
PHILIP A. HART, Michigan HUGH SCOTT, Pennsylvania
EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina
BIRCH BAYH, Indiana MARLOW W. COOK, Kentucky
QUENTIN N BURDICK, North Dakota CHARLES McC. MATHIAS, Jr., Maryland
ROBERT C. BYRD, West Virginia EDWARD J. GURNEY, Florida
JOHN V. TUNNEY, California
Subcommittee on Constitutional Amendments
BIRCH BAYH, Indiana, Chairman
JAMES O. EASTLAND. Mississippi HIRAM L. FONG. Hawaii
SAM J. ERYIX. Jr.. North Carolina ROMAN L. HRUSKA, Nebraska
ROBERT C. BYRD, West Virginia STROM THURMOND, South Carolina
QUENTIN N. BURDICK, North Dakota MARLOW W. COOK, Kentucky
JOHN V. TUNNEY, California HUGH SCOTT, Pennsylvania
(ID
WITNESSES BY DATE
August 21, 1974
White, Mr. Ray L., executive director, National Right to Life Committee, iPaee
Inc., Washington, D.C 1
VanDerhoef, Mr. Kenneth, chief administrative officer and pre&ident,
National Right to Life Committee, Inc., Seattle, Wash 1
Jefferson, Dr. Mildred, M.D., Chairman of the Board, National Right to
Life Committee, Inc., Boston, Mass 7
Engle, Ms. Randy, director, U.S. Coalition for Life, Export, Pa 20
Goltz, Ms. Pat, president, Feminists for Life, Columbus, Ohio 107
Schaller, Rev. Warren A., president and executive director, American
Citizens Concerned for Life, Washington, D.C 163
September 12, 1974
Lowry, Ms. Pamela Lee, Executive Committee, National Abortion Rights
Action League, codirector, MORAL Constitutional Defense Project,
Boston, Mass 169
Roudebush, Mrs. Dorothy, president, Committee for Legal Abortion,
St. Louis, Mo 176
Shoup, Dr. Jane R., Indiana Freedom of Choice Coalition, Hammond,
Ind. 186
Furlong-Cahill, Dr. Jane, a national director, Catholics for a Free Choice,
Athens, Ga 195
October 8, 1974
Noonan, Mr. John T.; Jr., professor of law, University of California,
Berkeley, Calif 213
Ely, Mr. John, professor of law, Harvard University, Cambridge, Mass . . 250
Tribe, Mr. Laurence H., professor of law, Harvard University, Cambridge,
Mass 292
Heymann, Mr. Philip B., professor of law, Harvard University, Cambridge,
Mass 253
WITNESSES ALPHABETICALLY
Ely, Mr. John, professor of law, Harvard University, Cambridge, Mass.. 250
Engle, Ms. Randy, director, U.S. Coalition for Life, Export, Pa 20
Furlong-Cahill, Dr. Jane, a national director, Catholics for a Free Choice,
Athens, Ga 195
Goltz, Ms. Pat, president, Feminists for Life, Columbus, Ohio 107
Heymann, Mr. Philip B., professor of law, Harvard University, Cambridge,
Mass 253
Jefferson, Dr. Mildred, M.D., chairman of the board, National Right to
Life Committee, Inc., Boston, Mass 7
Lowry, Ms. Pamela Lee, Executive Committee, National Abortion Rights
Action League, codirector, MORAL Constitutional Defense Project,
Boston, Mass 169
Noonan, Mr. John T., Jr., professor of law, University of California,
Berkeley, Calif 213
Roudebush, Mrs. Dorothy, president, Committee for Legal Abortion,
St. Louis, Mo ---- 176
Schaller, Rev. Warren A., president and executive director, American
Citizens Concerned for Life, Washington, D.C 163
Shoup, Dr. Jane R., Indiana Freedom of Choice Coalition, Hammond,
Ind . 186
Tribe, Mr. Laurence H., professor of law, Harvard University, Cambridge,
Mass 292
(Hi)
IV
VanDerhoef, Mr. Kenneth, chief administrative officer and president, PaKe
National Right to Life Committee, Inc., Seattle, Wash 1
White, Mr. Ray L., executive director, National Right to Life Committee,
Inc., Washington, D.C 1
ADDITIONAL STATEMENTS AND MATERIALS
Alexander, Leo, "Medical Science Under Dictatorship", Child and Family,
vol. 10, No. 1, 1971. Submitted for hearing record by Pat Goltz 134
Billman, Donald L., J.D., "Equal Justice under Law", paper prepared for
distribution by the Aloha Club, Inc., of Hawaii 443
Billman, Donald L., J.D., "The Case for the Unborn Baby, The Constitu-
tional Right to Life", reprinted from Discovery, vol. 4, No. 4, Toledo,
Ohio, Spring 1971 1 447
Billman, Donald Lynn, J.D., letter to Senator Bayh, Columbus Ohio,
Aug. 7, 1974 441
Brooks, Sylvia, "In Pregnancy Counseling — Delays Hurting Abortion
Efforts," Columbus Citizen — Journal, March 29, 1974, submitted for
the record by Ms. Pat Goltz 126
Cadigan, George Lelsie, Episcopal Bishop of the Diocese of Missouri,
Statement on Liberalizing the Abortion Statute, submitted for the
record bv Mrs. George S. Roudebush 185
Callahan, Sidney, "Talk of 'Wanted Child' Makes for Doll Objects,"
National Catholic Reporter, December 3, 1971, submitted for the
record by Ms. Pat Goltz 1 22
Callahan, Sidney, "Feminist as Antiabortionist," National Catholic
Reporter, April 7, 1972, submitted for the record by Ms. Pat Goltz 123
Cutright, Phillips and Karen B., "Abortion: The Court Decision and Some
Consequences of a Constitutional Amendment", prepared for Planned
Parenthood- World Population, Indiana University, Bloomington, Ind.,
July 1973, revised September 1973 ' 463
Doyle, R. F., president, Men's Rights Association, Position on Abortion,
St. Paul, Minn 456
Ely, John Hart, "The Wages of Crying Wolf: A Comment on Roe v. Wade",
reprint No. 15, American Enterprise Institute, from Yale Law Journal,
vol. 82, No. 5, April 1973 257
Engcl, Mrs. Randy, material relating to the membership of the U.S.
Coalition for Life, Export, Pa., submitted for record, Sept. 26, 1974 104
Engel, Mrs. Randy, editor, U.S. Coalition for Life, Newsletter, vol. 1,
No. 1, Export, Pa., September 1972 30
Engel, Mrs. Randv, editor, U.S. Coalition for Life, Newsletter, Export,
Pa., vol. 2, No. 2, January 1973 34
Engel, Mrs. Randy, editor, Pro-Life Reporter, published by U.S. Coalition
for Life, Export, Pa., vol. 2, No. 3, May 1973 46
Engel, Mrs. Randy, editor, Pro-Life Reporter, published by U.S. Coalition
for Life, Export, Pa., vol. 3, No. 6, Spring 1974 74
Engel, Mrs. Randv, editor, Pro-Life Reporter, published by the U.S.
Coalition for Life, Export, Pa., vol. 2, No. 4, August 1973 58
Fager, Charles E., "Abortion Positions — So Who's the Radical?." National
Catholic Reporter, submitted for the record by Ms. Pat Goltz 124
Fisher, Diane, chairperson, Tri-County Coalition for the Right to Choose,
"Abortion, Statement for the Hearing Record", Youngstown, Ohio,
Feb. 18, 1974 .. . . 396
Goltz, Ms. Pat, letter to Senator Bayh, Columbus, Ohio, Aug. 30, 1974___ 163
Harvey, Matthew, J., Assistant Administrator for Legislative Affairs,
Agency for International Development, Washington, D.C, letter to
Senator Bayh, Aug. 27, 1974 396
Heffernan, Gloria V., M.D., "Abortion Exploits Women," from the
I Chicago Tribune, submitted for the record by Ms. Pat Goltz 120
Hermann, Philip P., and Douglas E. Barzelay, "The Forest and the Trees:
Wade and Lts Critics , reprinted from the Boston University Law
Review, vol. 53, No. 4, July 1973 354
Eogan, Hon. Lawrence J., former Member of Congress from the State of
Maryland, "The Embattled Minority: Out of Sight Out of Mind",
The Maryland Law Forum, Winter 1971 428
Kagay, Marjorie, chairman, New York State Division Legislative Com-
mittee, American Association of Universitv Women, letter to Senator
Bayh, Feb. 27, L974 455
Kesel Robert E., president, Association for Grand Jury Action, Inc., Pa^
Rochester, N.Y., letter to Senator Bayh, Mar. 31, 1974. 454
Keyser, David, president, Milwaukee Chapter, Wisconsin Citizens Con-
cerned for Life, letter and statement on the Constitutional Amendments
on Abortion, Aug. 16, 1974 ---- --- ------ 435
Langmyhr, George, M.D., "The Role of Planned Parenthood-World
Population in Abortion", Clinical Obstetrics and Gynecology, vol. 14,
pg. 1190, 1971, from Planned Parenthood- World Population, New
York, N.Y.; submitted by Mrs. Randy Engel 89
Leonard, Merrill G., editor, "Handbook for the Right to Choose", Fowler,
Ohio 1974 ^^
LeVan,' Rose "Gordon, president, Lake County Women's Council, East
Chicago, Ind., statement on the Constitutional Amendments on Abor-
tion 43 J
McLeod" Julie, Zero Population Growth, Fort Wayne Chapter, "State-
ment on Constitutional Amendments on Abortion", Mar. 28, 1974 433
Medical Tribune, "Family-Planning Units Urged to Make Genetic Re-
ferrals", May 8, 1973, submitted by Mrs. Randy Engel 89
Medical World News, "Abortion in Japan after 25 Years," November 8,
1973, submitted for the record by Ms. Pat Goltz 128
Moore, Emily C, "The Major Issues and the Arguments in the Abortion
Debate", taken from the appendix of the author's article, "Abortion
and Public Policy: What are the Issues?", New York Law Forum, vol.
XVII, No. 2, 1971, reprinted by the National Association for Repeal of
Abortion Laws ----, — - 5 '
Noonan, John T., Jr., "Raw Judicial Power" reprinted from National
Review, Mar. 2, 1973 ----- 222
Noonan, John T., Jr., "The Family and the Supreme Court , Catholic
University Law Review, vol. 23, No. 2, Winter 1973 227
North Dakota, results of election of Nov. 7, 1972, on abortion question __ 474
Rapoport, Roger, "The Abortion Kickbacks," Feminists for Life, Janu-
ary 14, 1974, submitted for the record by Ms. Pat Goltz .__ 127
Roberdeau, Mrs. Larry, chairman, Rapid City Right to Life, letter to J.
William Heckman, chief counsel, Sept. 6, 1974 473
Silverman, Judy, coordinator, Coalition for Freedom of Choice, Minnea-
polis, Minn., letter to Senator Bayh, Mar. 4, 1974 «— ,1 453
The Uncertified Human, "Euthanasia: the Latest Threat is on the Rise,
submitted for the record by Ms. Pat Goltz — - - 1 2w
The Uncertified Human, "Michael Litchfield Discovers", vol. 2, No. 2, July
1974, submitted for record by Ms Pat Goltz 161
Tribe, Laurence H., "The Supreme Court 1972 Term, Foreword: Toward
a Model of Roles in the Due Process of Life and Law", reprinted from
Harvard Law Review, vol. 87, No. 1, Nov. 1973 293
Weick, Paul C, and Don J. Young, "The Ohio Decision on Abortion ,
Child and Family, vol. 10, No. 1, 1971, submitted for record by Ms. Pat
Goltz -- 153
Woodstock Right to Life Committee, Woodstock, Vt., petition submitted
for the record by Senator Stafford, Mar. 5, 1974 463
ABORTION
WEDNESDAY, AUGUST 21, 1974
U.S. Senate,
Subcommittee on Constitutional Amendments
or the Committee of the Judiciary,
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:25 a.m., in room
1202, Dirksen Senate Office Building, Senator Birch Bayh (chairman
of the subcommittee), presiding.
Present: Senators Bayh (presiding), and Fong.
Also present: J. William Heckman, Jr., chief counsel, Abby
Brezina, chief clerk, and Teddie Phillips, assistant clerk.
Senator Bath. We will reconvene our hearings, if you please.
Our first two witnesses are Dr. Kenneth VanDerhoef, president,
National Right to Life Committee, and Dr. Mildred Jefferson, chair-
man of the board. National Right to Life Committee. They will be
introduced by Ray White, the executive director of the committee.
Good morning.
STATEMENT OF KENNETH D. VANDERHOEF, PRESIDENT, NA-
TIONAL RIGHT TO LIFE COMMITTEE, INC., ACCOMPANIED BY
RAY L. WHITE, EXECUTIVE DIRECTOR, NATIONAL RIGHT TO
LIFE COMMITTEE, INC.
Mr. White. Good morning, Mr. Chairman. My name is Ray L.
White. I am executive director of the National Right to Life Com-
mittee. The executive offices are located at 1200 15th Street, here in
Washington. .
It is my privilege this morning to introduce to the committee Ken-
neth VanDerhoef, who is the chief administrative officer and presi-
dent of the National Right to Life Committee, Inc.
Dr. Mildred Jefferson, chairman of the board, is arriving by air-
plane—it has been delayed— and so she should be here very shortly.
At the conclusion of Mr. VanDerhoef's testimony, he will intro-
duce Dr. Jefferson.
Kenneth VanDerhoef is married, has four children, ages 9 to 15.
He has a B.A. degree from the University of Gonzaga in Spokane.
Wash. He has done graduate study at the University of Washington
and the University of Oregon. His law degree was obtained from the
University of Gonzaca Law School.
After graduation from law school. "Sir. VanDerhoef was with the
King County prosecuting attorney's office. He was also assistant
attorney general in the State of Washington, the attorney general's
office.
(1)
Mr. VanDerhoef is now in private law practice with Geraghty,
Geraghty, VanDerhoef & Sawyer in Seattle, Wash.
Mr. VanDerhoef s professional affiliation are the American Bar
Association, Washington State Bar Association, American Trial
Lawyers Association, Washington State Trial Lawyers Association,
Seattle-King County Bar Association, judge pro tempore, Seattle
Municipal Court, vice president and member of the Board of Trust-
ees, Providence Medical Center. Seattle, past president of the Uni-
versity of Gonzaga Law School National Alumni Association, mem-
ber of the Board of Directors of the University of Gonzaga National
Alumni Association, president of Human Life Association, Wash-
ington State.
Mr. VanDerhoef served with the first Board of Directors of the
National Right to Life Committee, which was first convened in 1969.
And so it is my privilege. Mr. Chairman, to introduce to you Kenneth
VanDerhoef, president. National Right to Life Committee.
Senator Bath. Well, thank you very much.
Mr. VanDerhoef?
Mr. VanDerhoef. Thank you. Mr. Chairman.
I would like to thank you for the opportunity to appear before
you on behalf of the National Right to Life Committee, hopefully
to assist this committee in the resolution of a national concern that
demands the most sensitive type of legislation. This legislation must
protect and guarantee the most basic right of our heritage, that is,
the right to life.
By way of introduction, I also would like to outline what the Na-
tional Right to Life Committee is. The National Right to Life Com-
mittee is an affiliation of State right to life organizations throughout
the United States. Each of the 50 States has a member on our board
of directors, and the 50-member board are the actual managers of the
corporation. While every State of the Union is represented, they vary
rather substantially from State to State, both in their organization
and membership. In such States as California, we have over 120 right
to life groups, all of them affiliated, however, under a State affiliation
and coalition represented by one member on our board of directors.
Various States, as T mentioned, vary in both their membership and
the structures that they have.
Over the past several years, the National Right to Life Committee
has been able to draw upon these individual State organizations for
assistance and guidance, such organizations as the Human Life Or-
ganization on the State of Washington, which is the first group to be
involved in a State referendum vote in 1970 on the question of abor-
tion. The background and expertise trained in that election was called
upon ;is a resource by the States of Michigan and North Dakota that
were likewise faced with an abortion referendum in 1972.
Additionally, we have as one of our most active organizations the
New York State la'ght to life organization, which successfullv re-
peal the law in the State of New York, but because of the veto of
Governor Rockefeller over the legislature and the people of the State
of New York, their actions were nullified.
We are basically a volunteer, nondenominational. nonsectarian
organization. The actual membership and numbers reflected we feel
represent the majority of the people of this country. The effect of
over 60 percent of the people of the State of Michigan rejecting an
abortion statute proposed to them on their referendum ballot, the
statute being far narrower than the Supreme Court decision of 1972,
would indicate that such States as Michigan have collectively a con-
science which rejects the basic principle that we can in fact take life,
including the life of the unborn. This is likewise reflected by some
70 percent of the people of the State of North Dakota, and certainly
the substantial majority of the legislators representing the people of
New York.
The National Right to Life Committee has outlined three basic
purposes. One is to promote respect for the worth and dignity of all
human life, including the life of the unborn from the moment of
conception; second, to promote, encourage, and sponsor such amenda-
tory and statutory measures which will provide protection for human
life before and after birth, particularly for the defenseless, the in-
competent, the impaired and the incapacitated; and third, we intend
to engage in such activities as will assist in the accomplishment of
those purposes outlined above.
To place your deliberations on the human life amendment in con-
text, some historical evidence should be reviewed. The majority of the
people of this country have rejected the abortion mentality as a solu-
tion to any problems"that are facing this Nation. The National Right
to Life Committee is a coalition of these people whose one basic
effort is to demonstrate to this legislative body and to other people
of this country that the destruction of any life is not an acceptable
alternative in our constant quest to solve the human problems of this
Nation. It is the position of the National Right to Life Committee
to coordinate on a national level a movement that will properly re-
flect the genuine and since concern of the people of this Nation. Our
organization likewise will not accept the ultimate rejection of this
basic value judgment to protect all human life and will work un-
ceasingly until all such life is adequately protected. In 1970, over
470.000 people out of some 1 million casting their votes in the State
of Washington, rejected the right of a mother to take the life of her
unborn child. In November of 1972, the State of Michigan by over 60
percent rejected the same mentality while the State of North Dakota
reiected it by over 70 percent.
In November of 1972, the State of New York through its legislative
process struck down the New York abortion law only to be over-
powered by the veto of the then Governor of the State of New York,
Nolson Rockefeller. In 1971, some 30-State legislatures considered
lifting the abortion restrictions in their States, and the concept was
rejected by each and everv State.
In 1973" the U.S. Supreme Court in Roe v. Wade and Doe v. Bolton,
struck down the will of the people of the States of Michigan. North
Dakota, and New York, and in fact, the people of this country, and
imposed upon all of us a legislative standard grounded on specific,
philosophical tenets. The Court's first holding stated that it would
not speculate as to when life begins, and it proceeded to legislate
in this area regardless of whether life was present or not. Addition-
allv, it indicated that the unborn child has no constitutional rights
to the law's protection at any stage of its gestation. It stripped the
protection of both the 5th and 14th amendments' "personhood" from
the unborn. It eliminated not only its right to life but also the equal
protection afforded it under the laws. While this subcommittee will
shortly be scheduling hearings to consider the legal aspects of the
right to life amendment, we are faced at the present time with the
stark reality that the U.S. Supreme Court in a 7 to 2 decision has re-
moved a class of human beings from the protection of the U.S. Con-
stitution. It has indicated that the potentiality of human life exist-
ing in the unborn is not afforded the protection of the personhood by
the U.S. Constitution.
It is not correct to say that the U.S. Supreme Court merely limited
when abortions could be obtained. Under its definition of health as
defined in the Doe v. Bolton case, it included "all factors, physical,
emotional, psychological, familial, and the women's age, relevant to
the well-being of the patient." The actual effect, then, of the U.S.
Supreme Court decision has been to ban any legislation that would
in any way protect the unborn from abortion.
This derision was reached with an utter disregard for the medical
facts that are known to us today. Most of these facts have been out-
lined to your committee and to your personally in the medical testi-
mony heard by this committee and presented by internationally re-
nowned physicians and scientists. Since the time of those hearings,
the reported studies of Dr. Motoyuki Hayashi of the Department
of Obstetrics and Gynecology at Toho University School of Medicine
in Tokyo, Japan, showing the actual fertilization within the human
female and the releases of Dr. Douglas C. A. Bevis of the University
of Leeds in England wherein he described the embryo transplants
after successful fertilization and incubation in test tubes, have made
it even more incumbent upon this committee and the Congress of the
United States to analyze carefully the statements of the U.S. Su-
preme Court as to whether or not we do in fact know when life be-
gins and in addition as to whether or not we have the means of pro-
tecting all life, even the earliest stages of the unborn. "While these
latest developments are new to the scientific field, science has always
acknowledged the above facts. "We need only to review the editorial
that is quoted so often out of "A New Ethic for Medicine's Society"
out of the California Medical Journal wherein they stated. "The very
considerable semantic gymnastics which are required to rationalize
abortion as anything but taking a human life", pointing out, I think,
clearly, that the only way that you can do it is again to resort to
semantic and gymnastics.
Our Nation has gone through a very soul-searching and conscious
wrenching episode wherein the people of this country and the legis-
lature as well has been involved in a review and a judgment of per-
sonal conduct which to many appeared to be devoid of moral and
ethical judgments. The American people as well as their elected repre-
sentatives fell the overwhelming force of social judgment and a value
tem which had not been met by certain elective and appointed
officials. Both the U.S. Senate and the House of Representatives were
rapidly drawing to the point where they would answer not only to
their own conscience, but also to the conscience of the public on a
grave moral issue.
We respectfully submit to this committee and to the U.S. Senate
and the House of Representatives that the right to life issue is of
such magnitude and deep personal and moral concern to the citizens
of this country that their reaction would be far stronger than to the
crisis the Nation has just passed through.
The question facing this Nation in addressing the abortion ques-
tion involves a true balancing between two innocent lives. The
mother, because she is pregnant, has not forfeited her right to life.
The child conceived has done nothing to dictate that its life should
be taken. Both deserve the utmost in competent medical care. There
may be cases where the material care to prevent the death of the
mother is more sophisticated than is presently available to an infant,
No action should be taken, however, to eliminate the life of the child,
and every precaution and medical measure must be used to assure
that neither life be sacrificed for the sake of. the other.
One may assume this position without losing sight or sensitivity
to the other sensitive issue involved. The difficulty of problem preg-
nancies must be faced, and consequently the National Right to Life
Committee does all in its power to support all programs, such as
birth right, pregnancy aid, that are designed to assist in problem
pregnancies. All such programs, however, which offer alternatives to
the taking of an innocent life rest on a basic definition of not only
the right to life but also the responsibility that each of us have to
assist those in need. The pragmatic or utilitarian approach to the
quality of life must not allow the implementation of a program that
would improve vour or my specific quality of life by destroying
another. It is difficult to imagine how a physician trained in the prac-
tice of medicine could make a statement to me recently that he "had
performed over 3,000 abortions without the loss of a single life." We
are less than intellectually honest if we deny the facts as presented
bv science todav that we are dealing with a life.
* It should also be clear to this committee that the human life amend-
ment presently being discussed is not an abortion statute. It will
hopefullv be designed to afford the constitutional protection of the
5th and 14th amendments to the U.S. Constitution to all human
beings, including their unborn offspring at every stage of their bio-
logical development irrespective of age; health, function or condition
of dependency. We have already seen the effect of defining the un-
born as a nonperson in the area of fetal experimentation, infanticide
and the accelerated interest in death with dignity legislation. Peo-
ple's moral sensitivity will ultimately be reflected in our legislative
deliberations.
The U.S. Supreme Court decision of January 22, 1973, has not
only not resolved the question but in fact has brought us to the
stage where the conscience of the American public, after a brief ex-
posure to the realities of the nonpersonhood of a segment of society
has become intolerable. The unborn has value because it is human
not because it is wanted, convenient, or meets some arbitrary standard
of physical or mental normalcy. Once the scientific facts are explained
to people, the solution proposed by the U.S. Supreme Court must be
sold on the merits illustrated by the newly elected president of the
Canadian Medical Association when she indicated that abortion was
a "necessary evil." It must be sold on necessity because it will never
be sold on the fact that it is not evil. It will never be morally
justifiable. We cannot for a moment lose sight of the fact that the
U.S. Supreme Court in Roe v. Wade stated that its judgment was
consistent with an attempt to "solve the profound problems of the
present day." We likewise cannot ignore the concurring opinion of
Justice Douglas when he stated that this "is only the beginning. The
State has interest to protect." If it is acceptable to the American
people that our system will legalize a selective, technologically ef-
ficient elimination of a segment of our society in an attempt to solve
any of our social ills, such action would be so violative of our ideals
of jurisprudence that the ultimate effect would be to destroy our
society. For this reason, the National Right to Life Committee most
strongly urges that this committee adopt and endorse a constitu-
tional amendment, and that that constitutional provision would se-
cure the following rights :
First, define the word "person" as used in the 5th and 14th amend-
ments as applicable to all human beings, including their unborn off-
spring at every stage of their biological development irrespective of
age, health, function, or condition of dependency.
Second, clarify that the definition of the word "person" as used in
the 5th and 14th amendments and defined in section 1 above, with
respect to due process and equal protection of the law, would thus
prohibit official Federal and State action designed to deprive the
unborn child of its life.
Third, to provide legal and constitutional rigidity to assure that
the life of the unborn child is protected in every reasonable effort
made to preserve the life of that child in light of all of the rapid
medical advances in the care of the unborn as well as providing the
constitutional protection to prevent the death of the mother.
It is within those principles that we support all legislation which
demonstrates that its intent and purpose is to secure these ultimate
goals. We encourage Congress, the State legislatures and all political,
moral, and religious leaders in this country to unite personally and
within their representative institutions to assure the attainment of
these goals.
T would like to conclude my presentation on a personal note. To
the members of this committee and your colleagues in the U.S. Sen-
ate we must realize that this is a very basic and personal responsi-
bility that you are accountable for as you deliberated on the human
life amendment. I have been subjected to questions and perhaps
criticism as all of you have when addressing myself to the question
<>f abortion. I speak to you now as a father of four children. While
I do not deny in any way or fake exception to the fact that the ques-
tion of alioit ion intimately affects the life of the woman, you and
1 must not become desensitized or intimidated by the fact that we are
men. We have a vital and God-given responsibility for the care of
all people in tliis Nation and in this world. The unborn child is not
;i pari of the mother's body but actually a new, distinct person carry-
ing witli it a very intimate part of the father's verv being. My re-
sponsibility and concern flows from the fact that the unborn child
from its very first inception requires that I as a parent and fellow
human being become highly visible and articulate in its defense. Its
mother would be wanting, not to aid in its defense, but certainly no
less than its father of the men of this country who would be accused
of refusing to accept their responsibility to protect the life of the
unborn. There is not a person in this country who can escape his own
personal responsibility in this issue by indicating that it is the re-
sponsibility of one sex or the other and that therefore I am not in-
volved. The real issue that faces you today is the protection of all
life. To be consistent and intellectually honest, we cannot address
this issue on any basis other than that we are all human beings, re-
sponsible and accountable to see that every other human being is pro-
tected by the Constitution of the United States.
Thank vou, and may God bless you in your deliberations.
I would like if I might at this time, Senator, to introduce Dr.
Mildred Jefferson.
Senatar Bath. Fine.
Mr. VanDerhoef. Dr. Jefferson is a general surgeon in Boston,
Mass., and assistant clinical professor of surgery at Boston Univer-
sity School of Medicine.
Dr. Jefferson is chairman of the board of directors of the National
Right to Life Committee. She also is vice president and a member of
the board of the Massachusetts Citizens for Life, president of the
Value of Life Committee of Massachusetts, and a member of the
board of directors of Americans United for Life.
Dr. Jefferson graduated surama cum laude from Texas College
in Tvler, Tex., received her M.S. degree from Tufts University,
Medford, Mass., and her M.D. degree from Harvard Medical School.
Dr. Jefferson holds an honorary L.D. degree from Regis College in
western Massachusetts. Dr. Jefferson received her surgical training
at Boston City Hospital at Boston University Medical Center, Chil-
drens Hospital Medical Center, and Massachusetts General Hospital.
She is a diplomat of the American Board of Surgeons and a mem-
ber of the local, State, and national medical societies.
It is with great pleasure I would introduce Dr. Mildred Jefferson,
chairman of the board of the National Right to Life Committee.
Senator Bath. Dr. Jefferson, we are privileged to have you here.
STATEMENT OF DR. MILDRED JEFFERSON, CHAIRMAN OF THE
BOARD OF DIRECTORS, THE NATIONAL RIGHT TO LIFE COM-
MITTEE, INC.
Dr. Jefferson. Delighted to be here, and thank you, Mr. Chairman,
for the opportunity of appearing before this committee to speak in
support of the Human Life Amendment to the Constitution.
Because of my feeling that the physician has obligations of citizen-
ship beyond providing for the health care needs, I also participate
as a member of the U.S. National Commission on the Observance of
World Population Year, 1974.
Although it is a privilege for me to be here, I am somewhat sad-
dened that we must take the strong measures that we must to prevent
the destruction of lives of those who cannot defend themselves. Most
immediately, there are those unborn who would be considered social
8
embarrassment or economic burdens. The jeopardy already extends
to the newly born with severe mental or physical defects. The elderly
are being invited to die with dignity, and those who accept the invi-
tation may soon find themselves invited or perhaps urged to choose
to die. If a society can develop tolerance for destroying lives at the
beginning and the end. why not apply the methods to eliminate the
deformed, defective, incapable, the incompetent, or the inconvenient
anywhere along the scale? If the destruction of life is permissible for
social and economic reasons, why not for political reasons?
It is reasonable to apply the extermination principle of social
change to that segment of the population that cannot fight back, can-
not riot in the streets and of course, cannot vote. Getting rid of babies
before they can be born in their own time can be arranged so very
readily with our modern medical technology. Separating the word
"abortion" from the fact of what abortion does allow it to be pro-
moted as a welcome escape from a probles without considering the
threat of harm in the promise of the relief.
The acting of killing an unborn child involves complex medical,
moral, and legal issues. On January 22, 1973, the majority of the
Supreme Court of the United States undertook to reduce them to
a simple medical problem by handing down decisions on abortion
which left the abortion decision to be a private matter between a
woman and a doctor, subject to the doctor's medical judgment. The
Court acted in the tradition of the 19th century Court that decided
to settle the problem of slavery by declaring one ensloved Dred Scott
to be "property" therefore not a person and not entitled to the pro-
tection of citizenship. The 20th century Court may have intended to
create social revolution with its abortion rulings. If so, the Court
succeeded in turning the whoel of social progress a full turn back-
ward.
By joining the strong team of the woman and the doctor against
the unborn child, the High Court destroyed a principle of justice
in our legal system which guaranteed some balance for the weak in
'•(.nil id with the strong by joining with the weak against the strong.
By requiring the unborn child to escape an extermination team of the
mother and doctor for 6 months before having chance of protection
by the State, the High Court destroyed fairness in the application
of our laws. By allowing the State to protect the life that Mr. Justice
Blackmun called potential in the last 3 months before birth only if
it chooses, means that the Court did not guarantee protection for the
life of that child at any point before birth or after if the State
should choose not to protect that life. And that opens the jeopardy
to us all.
The Supreme Court destroyed the foundations of democracy in the
abortion decisions by creating three categories of citizenship. The
doctor and pregnant woman were elevated to the rank of super-
citizens with the private right to kill by contract. Man. the father of
i lie child, was reduced to the level of subcitizen with no defined right
to proteei the life of his unborn child. The unborn child was declared
nonperson in the eyes of the law. and therefore, noncitizen only to
allow hisor her life to be taken.
The highest Court of our land undermined respect for the medical
profession by granting the doctor a nearly unlimited license to kill
the unborn child. The majority opinion of the Court disparaged the
hippocratic oath as a guiding principle of medical conduct. Seven
justices of the Court undertook to practice medicine without a license
by dictating what should comprise medical judgment in the abortion
decision. Without indicating when life began, the Court established
a timetable for allowing willful end of that life. Most cruelly, the
Court introduced the concept of viability, "potentially able to sur-
vive outside the mother's womb" as a price to pay for continued life.
It places the immature, premature survivor of abortion in the cir-
cumstance of having to prove the ability to live before being given
the support system that would help sustain its life. As a physician
I cannot accept that because it is not a sound or reasonable test. It
also disturbs me that those physicians who have been paid to see
that the mother leaves the facility with empty arms have been the
ones to try to establish the criteria for viability.
In the aftermath of the Supreme Court's decisions on abortion
we have seen increased efforts to popularize or make acceptable the
extermination procedures of the radical social medicine. The talk-
master on a late night Boston radio program feels obliged to offer
abortion counseling to a 14-year-old caller who thinks she is preg-
nant and has not told her parents. Specialists at a famous teaching
center feel obliged to report in The New England Journal of Medi-
cine allowing 43 infants with severe deformities to die. Legislators in
the States of Florida and Massachusetts, among others, introduced
passive euthanasia bills which would give the permission which doc-
tors do not really need to withhold extraordinary means of prolong-
ing life when death appears inevitable.
Senator Bath. Pardon me, Doctor, by what definition is that kind
of statute described as a euthanasia statute?
Dr. Jefferson. It is a passive euthanasia statute in the sense that
it executes an instrument which allows or directs that extraordinary
means bo withheld. No doctor using sound medical judgment needs
such direction, but with the instrument executed, there is also the
provision of what happens when the person is no longer competent
to act ? It is very simple then to use this to ease the person along, so
it becomes very simple to convert it from a passive euthanasia bill
to an active one.
Senator Bath. We are playing with words, and I do not want to
get into a prolonged argument on this. I think the question of abor-
tion is a very critical matter and I think it is complicated signifi-
cantly when we try to conjure up something entirely different such
as euthanasia. If there had been a euthanasia statute passed or even
proceeded significantly through a legislative body, I would like to
know about it. But a statute described as a passive euthanasia statute
is not the same thing as euthanasia by any means. I think that sort
of gets us off on the wrong road, does it not? We have got enough
problem here confining it to where we are.
Dr. Jefferson. I am stating the things that have taken place. If
one reads the letter from the doctor who was a legislator in Florida
who introduced the bill, who mentioned the 5 years in the building
for the bill he did introduce, and why he felt that the climate was
then suitable for introducing that legislation. That was written in
a letter
10
Senator Bath. Maybe I misunderstood you. I thought you said it
had passed.
Dr. Jefferson. No, no ; introduced. The one in Florida was intro-
duced first. The one in Massachusetts was introduced in this session
of the legislature.
Senator Bath. Is the one in Florida similar to the Florida statute
when it was passed?
Dr. Jefferson. It was entirely different when passed out of com-
mittee, but there were no changes in the ones that — the one in Mas-
sachusetts was introduced which essentially followed the form of the
living will.
Senator Bath. In other words, if a person like the former Senator
Morse, wants to turn off the kidney machine, he has a right to say
turn off the kidney machine.
Dr. Jefferson. He has a right to direct, but the doctor does not
need that in terms of the law or an instrument to be executed. If the
physician is following the case carefully, the sound medical judg-
ment should let him know when it is not reasonable to use the ex-
traordinary means.
Senator Bath. Well, suppose the patient disagrees with the doctors
and says look, I'm tired of you poking me with that needle. Would
you just stop it. Then do you as a physician, think a patient has a
right to ask the doctor to do that or not ?
Dr. Jefferson. The patient has every right to ask, but the doctor
must act within that doctor's sound medical judgment, and that doc-
tor still
Senator Bath. Was that answer yes or no ?
Dr. Jefferson. I cannot answer that yes or no because the doctor
still has to act within the provisions that control his action in the
hospital.
Senator Bath. Let us take the kidney problem as specifically,
painfully and unfortunately faced by our former colleague Wayne
Morse.
Dr. Jefferson. Yes.
Senator Bath. Wayne Morse happened to be somebody everybody
knows. Suppose Jack Jones out here that nobody ever heard of comes
to yon and savs, "Look, I do not want to take that treatment any-
more, Doctor."
Dr. Jkfff.rson. I would have to turn Jack Jones over to a doctor
who would allow a patient to dictate his treatment. You see, I come
from ;i rather different medical background. I was part of the first
ten in to work on the kidney transplantation so that I look upon
kidney failure in a different way. I also handle the relationship of
a patient in a different way. I have never had a patient ask to re-
fuse treatment that was considered necessary within my medical
judgment, so that if T felt, understanding and meeting the patient's
sense, that lie wanted to direct his treatment, I would feel obliged
to find that patient another doctor.
Senator Bath. Then the answer you would give to my question is
"no," you would not continue to serve as a physician to someone who
wants to stop receiving certain treatment and let nature take its
• ourse.
11
Dr. Jefferson. That is true, when I feel that best medical judg-
ment indicates that there is a positive chance for the treatment. You
do not just treat because you have the things there available.
Senator Bath. All right, thank you.
As I say, I can accept the argument of euthanasia as a very good
signal to us to be careful that we do not follow the tragic experience
of Nazi Germany. But I must say I have much greater faith, than
apparently you and some others do, in the capacity of the people
of this country to root out euthanasia. I think it is possible to dis-
tinguish the difference between death with dignity and euthanasia.
I have heard death with dignity described as letting someone make
his or her determination as to what kind of treatment and how long
it should be prolonged, as long as they are within command of their
capacities.
Dr. Jefferson. I understand your view, but I see it obviously from
a different circumstance. I know that in medicine we cannot be sure
that every patient is going to get reasonable care. I know that things
that are considered extraordinary today were not — or will not be
considered extraordinary within 2 or 3 years. I know some things
that were considered extraordinary in 1965 that are perfectly ordi-
nary and reasonable treatment now. I am not willing at this point
to allow the members of my profession to step back from doing
what is reasonable and necessary because I know already there are
few, very few, but still a few who will not know what is necessary
at the time.
So that when people mention death with dignity to me, I know
in the first place that dignity is a quality of the living not of dying,
and when people see this, often they have not seen many people die.
I have been watching people die since I was a child, when I used
to visit them to see the souls leave, and there was no dignity in dying
from neglect, from strangling on one's own secretions, from trying
very hard to breathe, or from feeling so dry that the person is gasp-
ing^ But the doctor who is following the patient well, even in the
most hopeless of circumstances, can help the patient die comfortably
and more easily, but still within a reasonable ethical limit, and it is
just that unfortunately slogans are appealing, but people often do not
look far enough behind the slogans.
Senator Bath. I am certainly looking behind the slogans. I do
not like to see anybody gasping or strangling on their own liquids
either, but we are talking about a relatively few people, that ever
have to face that decision. Unfortunately some of them do, and I,
for one, would not want to impose some sort of a rule by constitu-
tional amendment or statute limiting their right to control the
amount of treatment received. If I were a legislator I would not
want to say to those relatively few people, we are going to take vour
right to determine how you are going to go to your own Maker, as long
as vou do not take it yourself.
Dr. Jefferson. That is quite all right. Thank you.
Repeatedly, the High Court has refused to review the scientific
evidence of the life of the unborn in cases, for example, like those
from Connecticut and Rhode Island, the evidence which was so well
presented to you in this hearing on May 7 by Dr. Albert "William
12
Liley of New Zealand, who is perhaps the father of that specialty
studying the child before birth known as perinatology, and Professor
Jerome Lejeune of France, who is a world-reknowned geneticist, and
one who predicts that perhaps the answer or management of mon-
golism will be within this century.
The court has denied the father, an unwed father in Florida, any
right to protect the right of his child, and in Massachusetts an
estranged father was denied the right to save the life of his child
during 19 weeks within its mothers womb. The Supreme Court de-
cisions are used as an excuse for some doctors to use no medical
judgment in the, abortion decision, but to serve simply as medical
technicians performing abortion on demand. Roe v. Wade has be-
come the principal device for promoting abortion in the United
States. The decisions protecting abortion privacy are used to force
public support of abortion practice by the use of tax moneys through
medicaid and insurance payments which do not allow subscribers to
avoid paying for the abortions that others would have. The poor
woman who has not yet been guaranteed access to the health care
delivery system can now, with fair readiness at least, be given access
to getting rid of her unborn child.
We also see the threat to the lives and health of women who are
subjected to unmonitored operation circumstances. As the State may
not interfere in the abortion decision in the first 3 months, women
are subjected to all of the risks that were supposedly involved in the
so-called illegal abortion practices. They are subjected to operations
at the hands of those who do not have to subject themselves to the
scrutiny of peer review, credentials review, observation of their
skills, the hygiene of safety of the physical plant, the kinds of re-
sults that their operations have produced, or whether or not that
operator has the ability to handle the complications that would arise
from the procedure.
It is our ri.o-ht as citizens in a free republic to use everv democratic
means possible to overturn a decision which we consider morally,
medically, and legally wrong.
Quo democratic means is using the political process to join those
of like mind to accomplish legislative change. Throughout the
country, many people from all walks of life, social conditions, re-
ligions or no formal belief, political parties or no partisan affiliation
are joining the effort to defend the sancity-of-life ethnic. Collectively,
this is known as the right-to-life movement. There are at least 1,000
right-to-life organizations recorded as well as an uncounted addi-
tional number of those who function as ad hoc committees to respond
to many abortion promotions which they observe.
The National Right To Life Committee is an effort to provide
an organizational arm through which various State groups can con-
centrate effectiveness here in Washington.
The organizations are as diverse as the people who comprise them,
but they are distinguished by having political effectiveness within
the States. These are by no means all, but among these are the pio-
neer groups of those from New York, Minnesota, Illinois, Missouri
Washington State. California. Kentucky, and the city of Cincinnati
with the most dramatic election victories against abortion on demand
13
in the fall before the Supreme Court decision in Michigan and North
Dakota. In addition to effectiveness, some of the groups are outstand-
ing for their sheer size, like Pennsylvanians for Human Life with a
membership in excess of 100,000. Gaining recognition for effectiveness
and rapid growth in Massachusetts Citizens For Life with a member-
ship in excess of about 60,000 in less than the 2 years it has been in
existence, nad the numbers are growing.
We are committed to achieving an amendment to the Constitu-
tion which will protect human life from its beginning to its natural
end. With the necessity for ratification of such an amendment and
securing as well as defending enabling legislation within the States,
right-to-life organizations will become a permanent part of the po-
litical scene.
We have heard the objections to the idea of a constitutional amend-
ment, a human life amendment, but these sound hollow when they
are given by those who voted for the Equal Rights amendment. We
cannot consider seriously the obections based on the falsehood that
the unborn child is not alive before birth, is somehow other than
human, or is a part of the mother's body when modern science has
demonstrated exactly what the biological facts are. We are not re-
sponsive to the philosophic view that holds that to be unwanted is
to be unwantable and therefore expendable. We are dismayed by
the dishonesty in the suggestion that a pregnant woman has "free-
dom of choice" in the outcome of the pregnancy. She can become
unpregnant in only two ways: By giving birth to a living child, or
unfortunately sometimes to a stillborn or delivering a dead one by
abortion. We know that the Constitution as it is or even as amended
would not interfere with a physician practicing the medicine of sal-
vage and healing.
Our objective is to defend the dream of America as a democracy
with liberty and justice for all, and not an elitist preserve where
only the perfect, the privileged, or the planned have the right to
live.
Senator Bath. Thank you, Doctor, and Mr. VanDerhoef. Doctor,
you brought very unique credentials to this discussion, and I ap-
preciate both of your testimonies. We all have more places to be than
we can be right now. There is a vote going on, and we are going
to have to leave shortly, and Senator Fong has an important ap-
propriations conference that he is going to have to participate in.
Otherwise he would be here. Do you care to ask any questions
before we recess?
Senator Fong. No ; I have no questions. But we do have the vote.
Senator Bath. Doctor, you mentioned the ERA. Do you support
that, or did you support that?
Dr. Jefferson. I am in favor of equal rights for all, but if one
wants to look at it in a technical way, there should have been no
necessity for indeed the Constitution should provide for all.
There have been various Supreme Court decisions upholding this
principle of equal rights for all. Various States have enacted legis-
lation, but still it was found necessary by some to underline this
provision to make sure that it was possible, and it is for that reason
that we found it necessary to underline what should be an understood
provision in the interpretation of the Constitution.
14
But somehow there is a gap between the idealization and what
actually happens, and as it should not have been necessary to pass
an equal rights amendment, it should not be necessary to look for
protection of lives, but unfortunately it is.
Senator Bath. I am just trying to find out how you feel. Is the
answer yes or no? Do you support the equal rights amendment?
Dr. Jefferson. I do not understand.
Senator Bath. Do you support the equal rights amendment that
is now before the State legislatures ? I think about 33 have ratified it.
Dr. Jefferson. Massachusetts has already, sir, so my stand is moot.
Senator Bath. Well, you refer to it in sort of a negative aspect.
Do you support it or not?
Dr. Jefferson. I support the principle. As for the amendment as
such, I do not feel it necessary in the face of the favorable States'
laws as well as the Supreme Court decisions. I would not object to it.
Senator Bath. Could you cite me one Supreme Court decision that
brought women under due process of the 14th amendment?
Dr. Jefferson. I did not hear the first part of that.
Senator Bath. I do not know one Supreme Court decision that
actually brought women as a class of Americans under the equal
protection and due process clauses.
If you are familiar with one I would be glad to know it.
Dr. Jefferson. I did not consider that they were excluded, since
any of the
Senator Bath. Well, that is the way the Supreme Court has looked
at them now for 100 and some years, and that is why it was neces-
sary to pass the amendment. You do not support the equal rights
amendment ?
Dr. Jefferson. No, I did not say that. I said I did not see that the
same necessity was — but I thought that for those, who, I have heard
objections to the human life amendment, have usually said that they
regarded the document as something that should not be modified
or approached lightly and we agree with that.
But the same people who have offered that argument for not sup-
porting at this time the human life amendment have indeed sup-
ported the equal rights amendment.
Senator Bath. You know we have all sorts of people. I do not
think we ought to judge a position legislatively because a few peo-
ple may assume philosophies or arguments on an issue that we dis-
agree with.
I think it is totally possible to be for the equal rights amendment
and still be very concerned about abortion, but apparently you do
not.
Dr. Jefferson. I see it a different way. I simply cannot under-
stand.
Senator Bath. I am going to have to vote. I am not going to
change your mind at all.
Dr. Jefferson. I cannot see wanting rights to myself that I would
not extend to my child, my husband, mv friends. That is the prin-
ciple.
Senator Bath. Unfortunately, if you look at the pay scale of
women, if you look at the inability to get women emploved in public
institutions at an equal rate, if you look at the lack of 'equal justice
15
before the law in many States, women have not been treated equally.
I'd think it was important to give other women who have not been
quite as fortunate as you to have a chance to have equal rights, and
I do not think that is inconsistent with being very concerned about
abortion, but I accept your judgment.
I do not certainly deny you that.
Dr. Jefferson. I did not say that I have had equal rights but I do
not let the effort show.
Senator Bath. I have heard Mrs. Chisholm say, a very distin-
guished black legislator, that she found that she was discriminated
against to a much greater degree because she happened to be a woman
than because she happened to be black, that may not be your ex-
perience. But we did pass the amendment and it is out before the
States for ratification. You say Massachusetts has ratified it, so really
it is not that important.
I will be right back.
[A brief recess was taken.]
Senator Bath. Could we reconvene our session, please?
Mr. VanDerhoef, Dr. Jefferson, I apologize for the interruption
here.
Dr. Jefferson. We understand.
Senator Bath. I found when I got over there there was not one
vote, but two; so I stayed long enough to cast the second one, and
now we are back.
Both of you, I think, make very eloquent statements supporting
the cause that brings you here. Do either one of you care to express
the National Right to Life Committee's position on which of the
two amendments you would prefer; the Helms amendment or the
Buckley amendment?
Mr. VanDerhoef. I would address myself, on behalf of the Right
to Life Committee, and I am sure Dr. Jefferson will, too. I think at
this point we have seen a development of thought since the Supreme
Court decision 1972 that requires, I think, a very close analysis, and
will be expanded even further in the hearings in front of this com-
mittee on the legal aspects.
As a policy statement, we support all of the right to life amend-
ments that will in any way alter or assist in overcoming the Supreme
Court decision. We do feel, though, that in the legislative history
that is being prepared at the present time, we would not wish to be
precluded from continual input and assistance to this committee in
reaching the ultimate goals that I outlined in my statement; and
that is that the word person in fact be defined to include the unborn.
Also, that we carefully analyze the medical aspects, so that legally
we do not become involved where we have eliminated procedures that
are rapidly unfolding. Our concern is, for instance, if they have
transplanted the developing human being from test tube incubation
into the mother, is there any reason why we likewise do not remove
it?
So the amendment, I think, as it comes out of this committee,
would of necessity involve perhaps some additional modification of
all of the amendments or any of the amendments which are pending,
so we support all of those. We would ask, however, to be consulted,
and would offer our assistance in drafting, ultimately, the best
amendment that will afford protection.
16
Senator Bayh. What kind of modifications could you anticipate?
Mr. VanDerhoef. I think there are two areas that we have talked
about that have come to life in the last 2 months, and one of them is
a word, and I think it should be eliminated; an exception clause. I
do not think we are talking about an exception as such. We are ta^"
ing about a balancing between two lives, where the ultimate obli-
gation and constitutional protection is afforded to both parties; and
this again, then, if we aer talking about an exception clause in the
debate between the amendments presently pending, make a good deal
of this. And I think, legally, we will hope to participate, and will
participate, in the hearings on the legal matter, and define further.
The word execption, I think, has to be eliminated. We are not talk-
ing about an exception, because there is no exception where we would
want to destroy the life of the mother or destroy the life of the
child. So I think that is one area that specifically needs additional
modification over the amendments that are presently pending; at
least, consideration to be sure that the amendments pending do, in
fact, answer that question.
Senator Bath. Does the National Right to Life Committee sup-
port an amendment that permits the mother, father, and doctor to
make a decision that there shall be an abortion performed, if it is
necessary to save the life of the mother?
Mr. VanDerhoef. In light of the decision being made, likewise,
to save the life of the child, not to the expense of the child, but to
the life of the child as well; and there is, as I mentioned in my re-
marks, there are certain cases today in which the medical science has
not achieved the sophistication to preserve that life. But we do not
support an amendment that would allow the exclusion of those pro-
cedures that will, in fact, protect the life; and I think that is where
the word exception becomes very dangerous — to say that a mother,
father, and doctor have the right to determine that that child's life
will be taken, when in fact that child's life could be saved. To pre-
vent the death of the child as well as the death of the mother is our
ultimate goal.
Dr. Jefferson. The diversity of this group obviously indicates
that I think it would not be possible for anyone to write an amend-
ment that every single person in the country would support. The
Legal Advisory Committee of the National Right to Life Committee
came up with the drafting of the amendment, that was introduced
by— as I think it is identified now — as the Derwinski amendment, but
it is the one that came out of the Legal Advisory Committee of the
National Right to Life Committee. That one differs from the others
in the sense that the protection of life is provided complete — more
of a constitutional protection. But it also restores the States rights to
act in that balancing of the lives, so that the States actions could be
whatever the groups within the States did indeed determine, so that
if had considerable support.
But T think the thing most people recognize is that an amendment
as introduced is rarely the form that it comes out finally, so that we
have at least enough, T think, to approach what any person who sup-
ports the human lifo amendment would like to work with.
Senator Bath. The chairman of this committee, as one of 100
Members of the Senate, I am not permitted the luxury of dealing
17
with broad generalities. That is why I tried to pin you down on the
equal rights amendment, We either have to vote yes or no. We can-
not say, generally, we are for the principles that sound nice. You
vote yes or no, but you are not in that position yet where you want
to say, this is the best proposal. I mean, you point out that there
are certain questions that remain.
Mr. VanDerhoef. Yes. I think the position will become clear, both
to the committee and certainly in its final form, as we have the hear-
ings on the legal ramifications of exact wording. And for that rea-
son, I think that those hearings are essential before the final draft,
and I am sure that this committee would be able to drum
Senator Bath. Well, I certainly hope you will feel free to com-
municate with us in the future, as you have in the past.
Are there any other areas where you might find some flexibility
relative to the competing lives— for example, in the case of rape, in-
cest, genetic congenital disease of certain types? Is there any flexi-
bility there?
Mr. VanDerhoef. Again, I think we are talking about ultimately
resolving the problem of two innocent lives, and none of those, as I
see, would be a defect in the rights of the unborn that would warrant
its destruction. Certainly, as far as the medical criteria for deformity
and this type of thing, Dr. Jefferson addressed herself to that. But
I think the specific items that you mentioned, none of them would
constitute, under due process or equal protection of either the 5th or
14th amendments, any reason to take the life of the unborn child.
And for that reason, we would hope that the committee would, in its
draft, to gain support from this Nation, that it protect both of those
lives. If, in fact, in the— again, I hate to use the word— an execption
is drawn someplace, it would have to be drawn in the light of the
fact that, for some reason, due process and equal protection did not
apply to the unborn.
Senator Bath. Let me express the concern in other terms. We have
not yet explored the legal ramifications by which I think you could
perhaps draw a due process decision where you have consenting
adults participating in the exception. We have one problem in that
situation ; if you have a woman who is not voluntarily participating
in those acts/but is forced into a situation that leads to an exception,
the exception is forced upon here. Now, does that give any running
room in the rape situation, as far as you are concerned ?
Mr. VanDerhoef. I do not believe it does answer the—; —
Senator Bath. In the case of a minor child, a minor girl?
Mr. VanDerhoef. Tragic as those situations are — and again, as
I mentioned, we do not lose our sensitivities to them — we must hope for
a solution then, and I find it difficult to imagine that the solution
would be to destroy the innocent life because of the circumstances
that begot that child. So I think again, there are other ways, I would
think, of solving this; and again, based on the fact that we are talk-
ing here, constitutionally, of what has that child, the distinct, con-
ceived child, clone to warrant the forfeiture of its life?
And so, I think the difficulty is that the circumstances that have
iust been described by you deal with the mother, and that certainly
is a very vital part that must be considered. Does it override, how-
18
ever, the fact that as a result of that, we now have a second life ? Be-
cause I think tragedies happen in a family that are every bit as
tragic to the mother and to her well-being — perhaps after the child
is born, and we do not afford that. So again, it gets back to the very
basic question ; has that child, who now has a separate existence, for-
feited that because of some act of the mother, or some act of a third
party to her mother? And I do not think it can be resolved by saying
it is a forfeiting of a constitutional right.
Senator Bayh. You have four children. Do you feel that same
way if it was one of your daughters?
Mr. VanDerhoef. I do.
Dr. Jefferson. There are some other considerations, I think, that
are often overlooked in this kind of discussion. As a physician, I am
well aware of the fact that we like to have safeguards, and we also
like to have escape hatches. "We like to have that little bit of extra
protection. But I think as physicians we must face up to what medi-
cine is in 1974, and what that practice of medicine is.
When one deals with the matter of rape and incest and so on, we
must look a little bit more carefully, as well as the genetic screening
that you mentioned, of what we are dealing with. Rape, for example —
often, in the discussions, we do not have adequate review of just
what the pregnancy complication of rape is. Pregnancy is not the
commonest complication of rape; veneral disease and injuries are.
Obviously, in the one young woman who did become pregnant as a
result of rape, it is a problem. But even with that, one has to look
a little bit more closely at the woman involved. A first pregnancy
may be the only pregnancy. It may not be that ending the pregnancy
is best for that particular young woman or girl. The matter of rape
is a difficult scene. It creates psychological scars. You cannot erase
the fact of the rape or punish the rapist by aborting a pregnancy
that develops. However, you may seriously handicap this woman's
reproductive future if she is very young, and if that is her first preg-
nancy that is interrupted.
I think one thing is that I do not look upon pregnancy as quite
the burden as some other people may. Even though I have not been
pregnant, I have been at least watching pregnant people all of my
life, and I just do not see it as quite this great, awful burden that
some people seem to see.
Senator Bath. Well, then, it is extremely difficult for some of us
who have not been raped to share that experience with somebody
who has.
Dr. Jefferson. I have known people who have. I have known many
people in many circumstances. I also grew up watching 12, 13 and
L4-year-old girls going through pregnancies delivered by midwives,
so that the matter of the attitude toward the pregnancy and the rape
situation are things which require very careful handling, and there is
a way of glossing over what is happening to the young woman in the
rape situation when the focus is on abortion — to get rid of the conse-
quences of the rape — and that social circumstance — we ignore doing
something about the rapist, and with the focus on the young woman,
we simply do not do the tilings necessary.
For example, the families who know that they have a sociopath —
this is particularly a concern in the matter of incest, because often
19
the minor child who is raped or has been raped by some member of
the family— so that there is a good deal in that situation which is
glossed over when the focus is on what happens to the pregnancy.
There is also the matter that we should look more closely into the
matter of incest. What is wrong with it? What is wrong with the
pregnancy? Why does it mean automatic ending of pregnancy that
results from incest % Much of the things said about the children that
develop from incest are not borne out in the actual observations of
the people. If we look at an experience like that of Sweden, that
for some reason seems to have an especially high incidence of incest,
the one that suffers in it is not usually the woman, the girl. It is
usually the father who ends up in some kind of mental institution,
and of the ones that have been followed, the young women seem not
to have particular psychological problems after; and those followed
have made successful marriages.
So that we have to look, I think, beyond what some of our set
ideas are regarding these two areas. They are quite emotional in
terms of the person who does not respond to the matter of a young
woman pregnant as a result of rape or incest. But on the other hand,
I think we need to look a little bit more as to whether or not ending
the pregnancy is going to be in the best interest of that young
woman; and the focus on it from the legislative area tends to push
the matter of clearing out the complication to the detriment, some-
times, of young women involved. The matter of the genetic screening
and the use of the diagnostic measures in a search-and-destroy man-
ner bring up serious questions.
From a medical point of view, I have to look closely into the pro-
cedures themselves. Amniocentesis, for example, a procedure which
requires exceptional skill for its use, a procedure which has its own
risks, as a careful review of the complications of the procedure would
turn up; but there is also another matter that I, as a physician
watching what we do, must think of, and that is the matter that the
increasing tendency of centers who do this to do the procedure with
the assurance that the parents will agree to abortion if a defective
child is found.
Now, ideally, we know that they are concerned about the family
unit and the defective child. But on the other hand, we have to look
at the very practical matter that if the operator doing the test has
had something happen — maybe a few eye cells or a few other cells
that should not have been removed have been removed. It is very
simple to abort the child and avoid the malpractice case later. Those
are also concerns that enter into this matter, which make the matter
of genetic screening not quite the ideal that one may mention. But
it also carries in the overlay, the underlying idea, that we have sort
of flirted towards before. You mentioned the Nazi experience. The
search-and-destroy mission is a preNazi attitude; the attitude of re-
moving the burden from some society happened before the Nazis
came to power in fact, I think it was in the 1920's, in Leipzig, a book
was written by Hucke and Binding with a very awkward title which,
translated into English, is something like On the Release of the De-
struction of Live Devoid of Value. The ideas represented in that
book were that there are some lives which are simply worthless. They
are burdens to society. There should be no penalty for removing these
20
burdens from society. Doctors are in the best position for removing
such burdens from society, so doctors should suffer no penalty for
removing such burdens — and German medicine took this to heart ;
not the quacks, but the great professors. And long before Hitler came
to power, they had undertaken to help remove the burdens from
German society.
Many of my fellow physicians are quite interested in the new social
medicine, and the new social medicine does indeed take a very ag-
gressive attitude in removing such burdens of society. The immediate
target is the Mongoloid child, because there is a way of determining
and diagnosing it. There is the Tay-Sachs child, the Tay-Sachs child
who is not visibly defective at the time it is born, and may even be
at the early stages an unusual child, unusual in every physical as-
pects, until the disease effect catches up, and then the deterioration
and death. But it is to prevent what happens later that the child is
destroyed at that point. But I have not seen a single paper in the
American literature that calls attention to the fact that in a long
series of cases from Europe, for example, and England, that when
first pregnancies are interrupted by abortion, there is an incidence
of birth defects in subsequent children born of such women which is
higher than the incidence of such genetic defects in the population.
So that we do not know that in medicine, that we are creating a
reasonable circumstance. We can say that perhaps it is better to have
deformed hips than it is to have Tay-Sachs Disease or have a Mongo-
loid child. But that is simply a value judgment. But I think we tend
to emphasize a little too much the emotional aspects that my pro-
fession presents in wanting the safeguards or the escape hatch when
someone is suggesting that the profession of medicine may remember
the hippocratic tradition, which simply would not accept the kind of
utilitarian uses that the new social medicine requires.
Senator Bath. Thank you very much. I appreciate both of you
taking the time and trouble to be here with us, and we will continue
to look for your thoughts as we pursue our study here. Thank you.
Mr. VanDerhoef. Thank you.
, Senator Bath. Our next witness is Pat Goltz of the Feminists for
Life.
Ms. Goltz. I would like to yield the floor to Randy Engel, if I
may. She has another appointment.
Senator Bath. All right. That will be fine.
Ms. Engel. Senator Bayh, this afternoon there are IUD hearings
going on in the Food and Drug Administration, so I am scheduled
to do that later on this afternoon.
Senator Bath. Randy Engel, Director of U.S. Coalition for Life,
we are glad to have you here.
STATEMENT OF RANDY ENGEL, DIRECTOR, U.S. COALITION FOR
LIFE
Ms. Engel. Thank you. Mr. Chairman. I am Randy Engel, Na-
tional Director of the U.S. Coalition for Life. We are basically an
internationa] research center and clearinghouse with a specialtv in
Federal antilife programs both within the Department of HEW
which would be domestic programs as well as for the Agency for
International Development being foreign life programs.
21
I thank you for your invitation to appear before the subcommittee
today in order that I might express the views of the coalition, its
distinguished national and international board of advisors, some of
whom have already testified at earlier hearings by this subcommittee,
including Sir William Liley, KCMG, and those opinions of the thou-
sands of grassroots people whom we have had the honor of serving
on a day-to-day basis since the coalition opened its office almost 2
years ago.
Mr. Chairman, I would request at this time that my testimony in
full, along with all attachments, be entered into the record? Is this
satisfactory?
Senator Bayh. Without objection it will be ordered.
[The full statement of Ms. Engel follows.]
22
TESTIMONY ON THE HUMAN LIFE AMENDMENT
BEFORE THE
CONSTITUTIONAL AMENDMENTS SUBCOMMITTEE
OF THE
COMMITTEE ON THE JUDICIARY
SENATOR BIRCH BAYH , CHAIRMAN
AUGUST 21, 1974
Presented By:
RANDY ENGEL
NATIONAL DIRECTOR
UNITED STATES COALITION FOR LIFE
EXPORT , PENNSYLVANIA
23
Mr. Chairman and Members of the Sub-Committee:
I am Randy Engel, National Director of the United States
Coalition for Life, an international research center and clearing-
house specializing in domestic federal anti-life programs within
the Department of Health, Education and Welfare and the Agency for
International Development. Thank you for your invitation to appear
before the sub-committee today in order that I may express the
views of the Coalition, its distinguished national and international
board of advisors, some of whom have already testified at earlier
Senate hearings on the Human Life Amendment, and that of thousands
of grassroots people whom we have had the honor of serving on a day
to day basis since the Coalition opened its offices almost two years
ago.
Mr. Chairman, about four months ago, the Coalition filed with
your office, the transcript of a speech made by Louise Tyrer , M.D. ,
Family Planning Division of the American College of Obstetricians
and Gynecologists, before the Association of Planned Parenthood
Physicians' 12th Annual Meeting, Memphis, Tennessee on Tuesday,
April 16, 1974, on the status of the various Human Life Amendments
to the Constitution of the United States. (Attachment A)
According to Dr. Tyrer ' s assessment of the Congressional scene
there are two basic approaches. One - a "state's rights" approach
which would return the power of lawmaking in the area of abortion
to the individual States. The second - which would guarantee the
full protection of the law to the unborn child from the moment of
fertilization.
The "State's rights" approach she states, and correctly so,
is unacceptable to the majority of Pro-Life people yet very attrac-
tive to the legislators because " it sought of takes the ones off
their backs from making any decisions."
The remainder of her talk stresses the necessity of stalling
the hearings of this sub-committee by having Planned Parenthood
physicians flood the sub-committee with requests to testify. This,
Dr. Tyrer suggests would be politically expedient and politically
NECESSARY for you Mr. Chairman, in order to keep the amendments
bottled up in sub-committee until you had gone through the election
process in the Fall.
Now, Mr. Chairman, I have no desire to embarass you in any
manner. Not because I fell Dr. Tyrer was incorrect in her judgment
of the political realities of the Senate and House Committees dealing
with the abortion issue or her assessment that stalling these sub-
committee hearings by dragging them out month by month would be
politically expedient for you and others who might prefer not to
have a roll call vote on a Human Life Amendment before election time.
But rather, because with few exceptions, almost every Senator
and Representative in Congress would like nothing better than to get
rid of the abortion issue tomorrow, if not before, or at least dump
the matter back into the lap of the State legislatures.
24
This is not our affair - they say.
The massive slaughter of hundreds of thousands of innocent
unborn children is not a federal matter - they say.
We are not responsible for the Supreme Court decision of
January 22, 1972 which is now the law of the land - they say.
Well, I am here Mr. Chairman to tell you and every other
Senator and Congressman that like it or not - Abortion IS your
affair. That the massive slaughter of unborn children in this
country I_S a proper matter of federal concern. Moreover that this
Congress IS_ directly responsible for the almost inevitable Supreme
Court decision which stripped unborn children of their inalienable
right to life.
Congress IjS responsible because over the last ten years it has
permitted an anti-life philosophy and anti-life programs and policies
to become matters of NATIONAL POLICY, promoted and supported by tax
dollars.
It is the Federal Government - at all levels - Executive,
Legislative and Judicial branches - which has posed the greatest
threat to unborn children in recent years.
The Executive Branch because it has failed to correct the
anti-life abuses primarily within the bureaucracies of HEW and AID
and has permitted key anti-life leaders such as Dr. Louis Hellman
the Office of Population Affairs and Dr. R. T. Ravenholt, Director
Population Bureau for Population and Humanitarian Affairs to remain
in office.
The Legislative Branch, because it has authorized legis-
lation and appropriated funds year after year to initiate, promote
and sustain anti-life programs in virtually every conceivable federal
bureaucracy including the
Office of Economic Opportunity
Office of Environmental Education
Office of Education
Department of Defense
Office of Population Affairs (HEW)
National Institutes of Health
Agriculture Department
Food and Drug Administration
Public Health Service
Social Security - MedicAID
Aid to Dependent Children
U.S. Information Agency
Population Office(AID)
Contraceptive Research Branch (NIH)
Federal Communication Commission
(See Attachment B)
25
The Judicial Branch whose Highest Court by a 7 to 2 decision
legalized the killing of unborn children up to and including the time
of birth - a decision based in part upon the impeccable historic
credentials of the Playboy Foundation as well as numerous anti-life
lower court decisions, brought about through the tireless efforts of
federally-funded Legal Service lawyers.
Earlier in my testimony I made reference not only to federal
anti-life programs and policies but also to an anti-life PHILOSOPHY
which has in fact become the State religion in so far as federal
taxes, personnel, offices and publications are used to support such
a philosophy or way of life. This philosophy now expressed as a
matter of national policy - is reflected in the following quotations-
CHAPTBR V. "The wickedness of
creating a Large Family" from
Women and the New Race.
"The most serious evil of our time is that of
encouraging the bringing into the world of large
families. The most immoral practice of the day
is breeding too many children...."
"Every jail, hospital for the insane, reforma-
tory and institution for the feeble minded cries
out against the evils of too prolific breeding
among wage-workers."
"...The most merciful thing that the large
family does to one of its infant members is to
kill it."
" What shall be said of us (society) who
permit outworn laws and customs to persist in
piling up the appalling sum of public expense,
misery and spiritual degradation."
CHAPTER VII. "When Should a Woman
Avoid Having Children? from Woman
and the New Race
"No more children should be born when the parents,
though healthy themselves, find that their children
are physically or mentally defective. No matter how
much they desire children, no man and woman have a
right to bring into the world those who are to suffer
from mental or physical affliction. It condemns the
child to a life of misery and places upon community
the burden of caring for it...."
CHAPTER IV. "The Fertility of
the Feeble-Minded" from The
Pivot of Civilization
" we realize that each feeble-minded person
is a potential source of endless progeny of defec-
26
tives, we prefer policy of immediate steri-
lization, of making sure that parenthood is
absolutely prohibited in the feeble-minded."
CHAPTER VIII. "Dangers of Cradle Competition"
from The Pivot of Civilization
"..Eugenics is chiefly valuable in its negative
aspects... it shows us that we are paying for and
even submitting to the dictates of an ever increasing,
unceasingly spawning class of human beings who never
should have been born at all...
These basically vicious, racist opinions could never be a
matter of the foundation on which we base our national policy -
on the contrary! Within the next five years the federal govern-
ment will spend more than one billion dollars in taxes to promote
these ideas. For you see, Mr. Chairman, these quotes were taken
from the works of Margaret Sanger, founder of the American Birth
Control League which today we know as Planned Parenthood-World
Population.
Today, some fifty years later, the Sangerite revolution is
complete - the Sangerite philosophy or way of life has formed the
basis of federal policy in the area of population control and so-
called "family planning" a pleasant-sounding euphanism for birth
control (including contraception, sterilization and abortion.) -
The Sangerite programs and policies have become federal programs
and policies.
Despite a concerted effort to overhaul the public image of the
Sangerite Movement between the years of 1920 to mid-1960' s to tone
down its original eugenics roots and hedoristic basis of sexual
activity, the Movement has appeared to come full circle following
the January 22nd Supreme Court decision on abortion.
It is a matter of public record that Planned Parenthood -
World Population and its affiliates sees abortion as a key to elimi-
nating physically or mentally defective unborn children - as a tool
to reduce welfare rolls and as a most necessary and efficient method
of population control, i.e. the regulation of family size by govern-
ment.
Large families are an athema, as is so perfectly reflected in
Planned Parenthood 's brochure - So you finally had a boy? which
characterizes parents of large families as being immoral and selfish
since their example "may kill us all in a few generations". (Attach-
ment C)
The story of the rise of the Sangerite anti-life philosophy
to that of national policy though basically a complex and lengthy
one, may be said to have developed from "an idea" to "an institution"
via eight plateaus, each somewhat overlapping a total time span of
more than 50 years.
27
First
Plateau
1920-1940
Second
Plateau
1940-1960
A FEW INDIVIDUALS "crying in the wilderness" - These
were the Sangerites, the Drysdales, the Gambles.
SMALL GROUPS, working together informally, then as
SMALL ORGANIZATIONS, some help of venture capital
from FOUNDATIONS. These small nucleus groups include
the International Planned Parenthood Federation and
Population Reference Bureau, the Population Council,
the Ford Foundation.
Third
Plateau
1960-1968
Fourth
Plateau
1965-1969
Fifth
Plateau
mid-1960' s
MASS MEDIA coverage, in order to achieve respecta-
bility for subject as a topic for general discussion.
A period of increased foundation interest and the
development of university-based centers during the 1960's
BILLS introduced into Congress - this activity being
carried on by leaders within Congress such as the late
Senator Gruening or outside Congress by individuals
like William Draper, recently appointed U.S. delegate
to the World Population Conference in Bucharest.
CRYSTALLIZATION OF OPPOSITION - In the United States
the Catholic Church remains the singular institution
opposed to population control in all forms including
abortion.
Sixth
Plateau
1970
APPOINTMENT of one or more High Level ADVISORY COMMIS-
SIONS of distinguished citizens to make policy recom-
mendations and WIN PUBLIC SUPPORT for legislation.
The Rockefeller Commission on Population Growth and
the American Future.
Seventh
Plateau
1970-
Eighth
Plateau
Additional Congressional hearings, culminating in
LEGISLATION usually of modest scope and funding. Key
bills include the Tydings Bill and the Environmental
Education Act.
The last plateau had been reached by the Sangerites
during the early 1970 's. This included increased
acceptance of population control and birth control
legislation, the increase of the movements structural
and financial stability through increased tax subsi-
dies and its incorporation into the institutions and
mores of society. This action continuing at many
levels including indoctrination of young children
in the elementary and secondary schools, the mass
media, university teaching centers, technological
28
service provided by researchers and the pharmaceutical indus-
try, government agencies at all levels - local/state/federal,
professional groups such as medical societies, foundations, etc.
As I said the Supreme Court abortion decision was an inevitabl^J
one. All the cliches of that decision - terms like "unwanted children",
"a woman's right to control her own body.", the population explosion -
stem from the Sangerite ethic. It represented the culmination of more
than half a century of dedication and tireless efforts by the Sanger-g
ites and the Malthusians to convince the American public of the ™
righteousness of the CAUSE and to elevate the SANGERITE-MALTHUSIAN
philosophy to that of Public Policy. This final achievement is por-
trayed quite candidly in this book Breeding Ourselves to Death - the
Story of the Hugh Moore Fund by abortion leader Lawrence Lader.
In the section on gaining Congressional Support, former N.Y.
Senator Kenneth Keating, then newly appointed National Director of
the Population Crisis Committee tells about eating in the Senate
Dining Room where he could spread the gospel of family planning among
old friends, particularly among the Republican leadership. This fight
to influence by other population control leaders in Congress goes on
today.
CONCLUSION
But what does all this have to do with this subcommittee hearing
on the Human Life Amendment? Simply this
«
For more than a year the Hogan-Helms Human Life Amendment and
similar bills have been buried in the House, where Representative Don
Edwards has refused to hold hearings, and in the Senate - hearings are
dragged out month after month to get Senators and Representatives
through the November watershed without a floor vote on such as the HLA.
Obviously there is no sense of urgency about the matter, with the
exception of a handful of dedicated men, the Congress doesn't appear to
be the least concerned that its inaction will result in the death of
hundreds of thousands of unborn children. The fact that millions of
federal tax dollars are used to promote a myriad of anti-life schemes-
from direct abortion payments (Medicaid-ADC; to the research develop-
ment and promoting of new abortion techniques to the indoctrination
of young children of an anti-life ethic - appears to raise no parti-
cular concern at family planning authorization or appropriation hearings.
Equally obvious is the fact that under these conditions we will
have a difficult time getting a Human Life Amendment passed by both
Houses. of Congress and on its way to the states for ratification.
My purpose here today is to point out the current committment A
of the Federal Government including this Congress to the anti-life ™
establishment, and briefly how such a committment was obtained and
at what price.
29
Mr. Chairman, this Congress OWES its vigorous support for a
Human Life Amendment which would protect Human Life from conception
until natural death to the American people. The Coalition would
agree that the Hogan-Helms Amendment or the newer Roncallo Amendment
would provide such protection.
Apart from the merit of these amendments themselves, we feel
that Congress should recognize the fact that through its indifference,
ignorance and its inability to withstand the pressures of the anti-life
movement, it must bear its share of guilt for the 1972 Abortion decision,
and its share of responsibility in seeing a Human Life Amendment is
passed to protect the unborn child. Your responsibility, Mr. Chairman,
in this matter is very plain.
As for our part, I believe the Coalition and the Pro-Life Move-
ment in the U. S. will continue to fight at all levels - including
the Halls of Congress and yes, even in Senate dining rooms - to educate
and to promote an ideal that is as revolutionary in our day as the
Sangerite ideal was fifty years ago.
That ideal is based on the sanctity and innate goodness of
all human life.
Thank you.
30
U.S. COALITION FOR LIFE
Vol. 1 - No. 1
September, 1972
Mrs. Randy Engel, Editor
Newdlettek
P. O. Box 315
Export, Pa. 15632
WASHINGTON. DC Latest followup of the anti-
life Rockefeller Commission involves the U.S. Office of Educa-
tion, and the non-profit company known as Population Educa-
tion. Inc. which was created by the commission and produced
the propaganda film of commission findings and recommenda-
tions.
Population Education, Inc. is directed by Christian N.
Ramsey who served as a Vice-chairman on Presidential Com-
mission on Population Growth and the American Future.
On June 5 and again on July 27, the U.S. Coalition for Life
contacted the Office of Education for a list of population
oriented environmental education projects the agency spon-
sored in 1971 and 1972. According to Walter Bogan. Director
of the Office of Environmental Education (OE), six projects
were selected in 1972. ZERO POPULATION GROWTH REP-
RESENTATIVES were used as councils.
Among the six projects listed was a $50,000 grant to the
Population Education, Inc., Christian Ramsey, Director for the
purpose of providing supplemental curriculum material for
secondary school in population education. The grant was
funded under the Cooperative Research Act PL. 83-531.
Another smaller grant of $4,000 was awarded to the Fargo-
Moorehead Chapter of ZPG for a rural pilot project on man's
activities and life styles on the environment which included
the establishment of environmental booths and exhibits at
state and county fairs.
A complete list of these grants are available from the USCL.
QUESTION HOW MUCH LONGER ARE THE
PRO LIFE FORCES OF THIS NATION GOING TO CON
TINUE THE FEDERAL GOVERNMENT TO USE TAX
FUNDS TO SUPPORT AND ABEIT THE ANTI-LIFE
FORCES????????
. HJR 837, the Congressional flip-side of S. J. Res. 108
on population stabilization has been circulated to the full House
by Congressmen Morris Udall (AzD) and Frank Horton (NYR)
who are currently scouting for co-sponsors. The House bill has
been referred to the Government Operations Committee. Pro-Life
leaders should request that their names be put on the Committee's
mailing list to be notified when hearings are to be scheduled and
should begin preparing their testimony - both oral and written.
Excellent back ground material can be found in Declaration of
U.S. Policy of Population Stabilization by Voluntary Means, 1971,
a compilation of the Senate hearings on SJR 108. Order from
U.S. Printing Office, Washington, Doc. 68-976-0, $2.50.
Another House bill HR 1 1 226 to establish a Population
Growth Institute and sponsored by Esch (MIR) has been referred
to the same Government Operations Committee.
McNamara's Bank has recently published its sector
working paper on Population Planning, designed to help member,
borrowing nations reduce their population growth rates. The
filing of a demographic analysis and survey of a country's popula-
tion policies or programs in their economic reports to the World
Bank is now required of all developing nations who wish Bank
aid. Asofjan 1 , 1 972, the Bank is sending its missionaries abroad
in order to set up the necessary institutional structures required
to plan fand administer family planning-population limitation
programs.
Annex 3 of the Bank's report on Contraceptive Method
contains serious errors. For example, the IUD is listed as a con-
traceptive rather than an abortifacicnt agent. The section on
"rhythm" mentions the calendar and temperature methods of
regulating births but ommits the newer Billings Ovulation
Method which has both universal appeal and applicability. None
of the latter methods, however, the report notes have been used
on a mass scale. For population control, the plug-or-drug approach
have greater appeal. The Bank report praises the safety and
efficiency of suction abortion and highlights the future of new
abortifacient agents such as the vaginal prostaglandin supposi-
tories which "requires no regulation of sex activity and greatly
reduces the need for education." This statement suggests that the
Bank's oversees population aides will not trouble perspective pa-
tients' consciences with the abortifacient nature of their new
magical pills guaranteed to "bring on a period". It also suggests
that World Bank leaders need to be initiated into the Pro-Life
facts of life. Write: Robert S. McNamara, President, World
Bank Group, 1818 H St., N.W., Washington, D.C. 20433.
Population Planning, Mr. 1972 available from World Bank at no
charge.
It is no well kept secret that some Pro-Life groups
been waiting as long as 18 months for a ruling from the In-
ternal Revenue Service on their tax-exempt-tax deductible
status. In the meantime, the Anti-Life establishment enjoys
the exempt-deductible status which enables them to rack in
foundation and business monies. Consider the following —
Citizen's Committee on Population Growth and the Ameri-
can Future, the newest miscarriage of JDR3rd's Commission
which was created on July 1, 1972 has already obtained its
tax-exempt and deductible rating from the IRS. Leaders of
the Committee include Carol Foreman, former Commission
aide, student Stephen Salver, Hugh Downs, and Eleanor Norton
described by ZPG as "a black woman who champions liberaliza-
tion of abortion and other human rights." (USCL Reprint
#101)
The ZPGrowth Fund established in 1971 has been de-
clared a tax-deductible educational foundation. Fund board
members include Paul Ehrlich, Richard Lamm, Don Shaw and
Rodney Shaw. ZPG's computerized Abortion Data Bank is a
project of the Fund. (USCL Reprint #102)
Even well-known population control lobby groups such as
the Population Crisis Committee enjoy a limited favorable tax
status with contributions to the Committee deductible up to
50% of the net adjusted income of the donor. The PCC is
designated as a "publicly supported charitable" group operating
as an educational institution in the population field. (USCL
Reprint #103)
Letters of inquiry into suspect IRS practices may be
directed to: The Internal Revenue Service, 1111 Constitution
Ave., N.W., Washington, D.C.
The specter of US-financed, foreign aboritoriums was
raised in the Agency for International Development, Dec. 1971,
Population Program Assistance report which states," .... as
legal restrictions on postconceptive fertility control are removed,
for example, India in 1971, it is foreseeable that famdy planning
program strategy will center upon the early diagnosis and relief of
unwanted pregnancy, followed by provision of the contraceptive
information and services needed to prevent subsequent unwanted
pregnancies."
"Such pregnancy-centered programs can be much more efficient
than ordinary family planning programs because women who be-
lieve they may have an unwanted pregnancy will actively seek out
any facility offering relief, and hence educational and promotional
costs of the f.p. program can be greatly reduced, and the time
from inception of the program to reduction of fertility can be
minimized."
"Provision of relief of unwanted pregnancy plus effective con-
traception, for example, sterilization, can achieve fertility re-
duction of more than one birth per clinic acceptor and have a
powerful and rapid effect upon fertility patterns." (pgs. 34-35).
PPA Report (Dec. 1971) of AID. available from U.S. Govern-
31
ment Printing Office. Washington, D.C. 20402 $2.00. Inquiries
into A.I.D.*s abortifacient financing and policies may be directed
to: R. T. Ravenholt, Director, Office of Population, A.I.D., Wash-
ington, D.C. 20523, and to your own Congressional representatives.
A USCL inquiry to the Food and Drug Administration
of HEW into the "status" of abortifacient drugs brought the
following reply from Information Specialist Edward Nida:
" . . . . several investigational New Drug exemptions (1ND)
to the Federal Food. Drug, and Cosmetic Act are in effect for
clinical tests of such drugs ("morning after" pills). This is in
effect a test license. We are prohibited from commenting on who
has such licenses and for which drugs." Mr. Nida states the "in-
formed consent" obligation of IND holders then, "FDA's stand
on abortifacient drugs is that they are new drugs limited to in-
vestigational (test use) only. Federal law prohibits promotion or
other commercialization of these drugs UNTIL THE Y ARE PROV-
EN SAFE AND EFFECTIVE." He concludes, "I hope this in-
formation will be useful; unfortunately it is all I am free to tell
you until these drugs are licensed." (Oct. 19, 1971).
Lesson - Pro-Life forces must begin work now on halting tax-
financed clinical testing of abortafacient drugs which contrary to
FDA judgement are notoriously deadly for unborn babies. For a
detailed analysis of Federal abortifacient funding and programs
see Pro-Life Report on Population Growth and the American
Future, available from WCUC, Box 8071. Pittsburgh, Pa. 15216 or
PHL Greensburg. Box 416, Greensburg, Pa. 15601. $.75 each.
The new Child Development Act, S.36I7 which
passed the Senate June 20th is presently awaiting House action.
There are a number of disturbing sections of the bill which may
pose a potential threat to both parent(s) and child including re-
ferral services for "family planning" and purchase of such
services when not otherwise available to families enrolled in the
program; the inclusion of f.p. in health and mental services; the
entire hierarchy of bureaucratic agencies, prime sponsor, Child
and Family Services Council, local councils and delegate agencies;
the training and certification of Child Development Associates; the
authorization of the Secretary of HEW to carry out research and
demonstration projects,and a multitude of other potentially harm-
ful activities; the Child Development Research Council; the fact
that very young children UNDER the age of two could be regis-
tered under certain circumstances; and the incredible segment of
the Act having to do with the use of children as subjects of re-
search and experimentation. A thorough public debate on this Bill
is needed.
BOSTON, MASS Formal charges of violation of the
Fairness Doctrine have been filed with the FCC by the U.S. Coali-
tion for Life against WBZ-TV4, Boston, producers of the Saturday
morning children's program EARTH LAB.
On Feb. 19, 1972, Earth Lab featured a representative from
ZPG's New England Speakers Bureau, Dr. Ronald Arenson.
Shortly thereafter, the USCL contacted Shep Morgan, the pro-
ducer of Earth Lab requesting that a pro-life representative be
given an opportunity to present the other side of the population
question. No reply was received.
On June 2, 1972. a second request was filed with WBZ-TV4
with carbons to the FCC. Within five days, Mr. Morgan notified
the USCL that the entire matter had been turned over to their
Westinghouse legal staff. On June 18 Randy Engel, Executive
Director of the USCL, in N.Y.. wrote Mr. Johnson at the Westing-
house legal department requesting an interview. No reply was
received.
Earth Lab is currently filming its 1972-73 programs which
may explain the desire of WBZ-TV4 tc try to procrastinate the
showdown with the USCL.
A formal brief containing ZPG's Malthusian concepts as pre-
sented by Dr. Arenson along with details on the organization's
multi-anti-life activities was sent to the FCC on July 27. Pro-life
support for the USCL action can be directed to both, WBZ-TV4 in
Boston and William B. Ray, Chief, Complaints and Compliance
Division, Broadcast Bureau. FCC. Washington, D.C. For details
explaining the applicability of the Fairness Doctrine write for
FCC's Public Notice, July 1, 1964; Vol. 29 No. 145 of the Federal
Register. Pgs. 10415-10427.
SUSSEX, N.J The NATIONAL SOCIAL CONDI-
TIONING CAMPS bill, H.R. 6781, introduced by Rep. Murphy
of N.Y. has been referred to the Committee of the Judiciary.
The first of the NSCC. "a prototype of similar camps to be
established in every state of the Union" will be Camp Shangn-
Li, Sussex, N.J., open year-round for all dependent children
between the ages of 7 - 1 2.
The multi-purpose camps are designed to prevent pre-teen
delinquency in "disaffluent" youth who are too poor to attend
camp or "who might require attendance at camp for the pre-
vention of delinquency." Referrals are made by both private
and state-federal agencies. For details write - National Social
Conditioning Camps, Joseph Gainer, Treasurer, 2 Pennsylvania
Plaza, N.Y. N.Y. 10001.
PALO ALTO, CALIF Zero Population Growth. Inc.
has been recognized by the Selective Service System as alternate
service for conscientious objectors. The ZPG national office
and a number of chapters is employing C.O.'s, according to the
ZPG National Reporter. Feb. 1972.
Apparently, the reluctance to spill blood does not extend to
the mass computerized killing of unborn children via ZPG's Abor-
tion Data Bank which as of June 1971 has handled 1000 abortion
"hits". Information from Bank on the pregnant woman - her
address, stage of pregnancy, etc., is fed into a shared-time
computer which in turn spews out the names of 10 doctors,
hospitals or clinics willing to do the abortion. No fee is charged
and only 25% of the women using the bank make a contribution
of $5.00 or more. ZPG's income loss is supplemented by TAX-
DEDUCTIBLE PRIVATE DONATIONS.
In Michigan this Fall, ZPG will be pushing an abortion refer-
endum which permits abortion up to 20 weeks, on request, when
performed by a licensed medical or osteopathic physician in a
licensed hospital or other facility approved by the Dept. of Public
Health. The Michigan campaign is headed by Dr. Jack M. Stack,
Lansing, Michigan. (USCL Reprint 104-10*).
SEATTLE, WASHINGTON "PLANNING TO PRE-
VENT OVERPOPULATION OF THE EARTH MUST INCLUDE
EUTHANASIA, either negative or positive" .... laws regarding
euthanasia should "be changed to conform to what seems right
and what the public desires." .... we should increase our
activities immediately and to a major degree, in dealing with
population control, selective abortion, problems of mentation,
aging, suicide, and negative euthanasia. It seems unwise to attempt
to bring about major changes permitting positive euthanasia until
we have made major progress in changing laws and policies per-
taining to negative euthanasis . . . ." These comments were taken
from "Number; Types and Duration of Human Lives", by Robert
H Williams, M.D., Northwest Medicine, July, 1970, Vol. 69
#7, pgs. 493-496. Dr. Williams of the University of Washington
illustrates the anti-life domino theory to a superb degree. For a
study copy of the full text write, USCL Reprint #105-0.
HARVARD U., CAMBRIDGE, MASS Should the
Roman Catholic Church be tried before a World Court for
crimes against humanity for its opposition to Birth Control
which ( 1 ) in effect requires millions of people to have unwanted
children (2) forces unwanted children to live a life of poverty
and misery (3) permits these unwanted children to drain world
resources which are needed by wanted children born of respon-
sible parents practicing birth control and (4) in general, by its
obstinancy fails to reduce resultant suffering and death? ....
"What additional facts and statistics would you want in order to
determine (1) whether the Church should be brought before a
world court, and (2) whether it should be found guilty of any
crime?"
This "when did you stop beating your wife" orientated
discussion question is taken almost verbatim from POPULA-
TION CONTROL - Whose Right to Live, an American Educa-
tion Publications Unit Book adapted from the Harvard Social
Studies Project and edited by Charles Cutler.
The book is part of a series of 28 paper-backs covering a
wide range of topics on foreign and domestic social study is-
sues, begun at Harvard U., which eventually became one of a
dozen college and university centers designated by the U.S.
Office of Education as part of Project Social Studies.
32
In addition lo population control, the text covers birth
control, sterilization, over-population, and abortion as pre-
sented by well-known anti-life personalities and organizations.
The incredible anti-life bias of this publication, which is used
in both public and parochial high schools across the nation, is
best demonstrated in the chapter on abortion by Jane E. Brody
followed by a "discussion" of when the unborn child be-
comes a person having moral value and under what circum-
stance an abortion may be justified.
The USCL has asked that the U.S. Office of Education
publicly disassociate itself from this unit book and that it be
removed from the Project Social Studies program. Pro-
lifers therefore, may want to obtain sample copies immediately
from Education Center. Columbus, Ohio 43216, 40V each.
"Further details to follow. Note: Population Control is
copywrited by the Zerox Corporation which sponsored the
Rockefeller Population Commission's film on the findings
and recommendations of the Commission of Population Growth
and the American Future, to be aired by the PBS in November.
ANN ARBOR. MICHIGAN While general public accept-
ance of the hard-sell approach to population control is seen as be-
ing about a year away, use of educational television and public
television broadcasts which cater to a more sophisticated audience,
as an instrument of population indoctrination is a current
possibility. This is the conclusion of an article which appeared in
the Ob. GYN. News (Vol. 7, No. 12) and illustrated by campaign
signs such as "OVERPOPULATION - May be Hazardous to your
Health."
The Physicians International Press release outlines the recom-
mendations of a student "Think Tank" with 37 members of the
U. of Michigan in co-operation with the Michigan Council on En-
vironmental Quality. The prepared material from the workshop
focused on the use of the mass media - newspapers, magazines,
TV and radio, with special emphasis on public broadcasting.
(USCL Reprint #106-0).
And speaking of public broadcasting, the USCL in a
letter to the Public Broadcasting Service on July 27, 1972 has
I that the PBS provide a complete public disclosure of
the facts surrounding the November airing of John D. Rocke-
feller 3rd's population masterpiece, on his Commission findings.
In addition, the PBS has been asked to provide an opportunity
for a similar program on the population issue by Pro-life experts
in this area. PBS reaction will be reported in next newsletter.
UNITED NATIONS HEADQUARTERS, NY The
U.N.'s Population Division has been charged with planning and co-
ordinating a World Population Conference in NY. on Aug. 19 -
30, 1974, while World Population Yeai-1974 responsibilities
have been given to the U.N. Fund for Population Activities, a
quasi-official group financed largely with AID-tax funds with
offices on Lexington Avenue in N.Y.
A pre-liminary report on the year and conference has been
issued by the Economic and Social Council and is available from
Kathleen Jupp, of the U.N Population Fund, U.N., N.Y.
It should be noted, that at the 1965 World Population
Conference, in Belgrade, the International Planned Parenthood
Federation, which will be one of the co-ordinating agencies for
Year and Conference- 1974, rushed into chamber meeting halls
during conference half-times to show their colored film of the
latest abortion-suction techniques.
The USCL will have additional details on the 1974 population
events in its future newsletters. Pro-life reporters may want to
write to Mr. Kelly at the U.N. Press Office in N.Y. for details on
covering the events at the U.N. during August
NEW YORK, N.Y Never let it be said that the
Population Control I stahhshment leaves anything to mere chance.
Youth') Agenda for the Seventies by Wade Greene is a report on
the White House Conference on Youth with a Summary of
Recommendations prepared by the Youth Task Force of the JDR
3rd Fund. The resolution on population and consumption states:
"that the U.S. take an exemplary leadership role in effecting
measurable steps toward population stabilization and eventual
reduction."
Other recommendations from the youth conference include
universal contraception to all including minors be made available
by government", that federal funds for contraceptive research be
intensified; that taxpayers foot the bill for an abort ion-on-com-
mand policy; and that population control education be integrated
into the school curriculum .... which is to say the exact same
thing as JDR 3rd's Commission said only eleven months later.
The Youth Agenda report is available free from the JDR
3rd Fund, Box 1105, Radio City Station, N.Y, N.Y. 10019.
BRONX, N.Y Pro-Life writers and leaders interested
in offering reprints of good articles on abortion, euthanasia,
population control, etc. to students via school and public libraries
should send such material on a REGULAR MONTHLY BASIS to
the H. W. Wilson Co., 950 University Ave., Bronx, N.Y. 10452
publishers of a Vertical File Index which lists pamphlets by title
and subject. The Dec. 1971 issue of the Index under Abortion
carried 6 articles submitted by the Assoc, for the Study of
Abortion and offered FREE on request. Pamphlets so listed
are ordered from the source, i.e., the ASA, and NOT the
Wilson Co.
"Conception and Contraception" is a recent article
appearing in Natural History, Aug. - Sept., 1972 (Vol. LXXXI,
No. 7). Wedged in between photos of charging buffalo bulls and
ads for wild life societies is a full page picture of IUDs, foam,
pills, condoms and assorted contraceptive and abortive devices
followed by a detailed description of contraception and abortion
techniques. The author is Prof. Gerald Oster who has been exper-
imenting with the Copper - IUD. According to Prof. Oster, new
birth control paths lie in the way of once-a-month abortifacient
oral pills. His conclusions are typically Malthusian . . ."
Sociologists agree, however, that it is equally important to -in-
culcate in the masses a recognition of the dangers of over-
important to inculcate in the masses a recognition of the dangers
of over-population and a strong personal need to restrict the size
of the family. Meanwhile, the population time bomb keeps
ticking away."
While there is very little original material in the Oster article,
its appearance in a magazine like Natural History is of significance
to the Pro-Life Movement. Letters to the editor may be directed
to: Natural History, 79th & Central Pky., W., NY., N.Y. 10024.
ATLANTA, GEORGIA Pro-Life forces in Georgia
have hit the Department of HEW in the gut by demanding that a
Federal grant of $185,000 to Emory University for a two-year
study on abortion and unwanted births to be conducted by well-
known pro-abortion physicians, be rescinded. National pro-life
support to our Georgian brothers-in-arms can be directed to HEW
head Elliot Richardson, President Nixon, and Congressman.
In addition to showing once again how much more enterprising
the children of the darkness are when compared to the children
of the light, this incident proves the need for solid pro-life
research initiative into the multi-faceted areas of anti-life issues
and pro-life alternatives. Information on Federal research grants
may be obtained through the Office of Population Affairs (HEW)
and/or the Contraceptive Research Branch of the Center for
Population Research of the NHI (HEW).
In addition to protesting the EMORY U. grant #130171-01,
pro-lifers may also want to include a NIH grant #69-2094
awarded to Robert L. Brent of Jefferson U. in Philadelphia, Pa.
for a "study in experimental methods of interrupting pregnancy
(microwave radiation)" (P. 202, HEW Five Year Plan, #68-1 78-0,
U.S. Government Printing Office, Washington: 1971.)
DAYTON, OHIO The Compass, the journal of
MAP (More Agricultural Production) calls for a new world-wide
commitment to fight hunger and malnutrition in developing
nations. MAP's immediate plans include a public education
campaign and youth scholarship program in agricultural for
promising young people in areas of L.A., Asia, etc. Long range
plans include the establishment of demonstration and research
farms utilizing local talent in areas with vast untapped agricultural
potential.
The Compass is an excellent pro-life population reference
newspaper. Regular MAP membership, $3.00, includes a sub-
scription to Compass. MAP's mailing address: Main Box 1101,
Dayton, Ohio 45401.
33
DATELINE THE WORLD
JAPAN The Pro-Life Movement in Japan has made
significant headway since Spring. On April 4, 1972, Minister of
Welfare, Mr. Nobuo Saito at a debate of the Budget Committee
of the Upper House stat.d that the time has come for the Diet to
persuade the people to have more respect for life and that the
Eugenic Protection Law (EPL) section permitting abortion for
economic reasons should be deleted from the law. He particularly
stressed the importance of not aborting the FIRST child.
Similarly, Mr. Tamaki (Sen.. Liberal Democratic Party) stated
that respect for human life is the very foundation of the principles
of good government noted that the Prime Minister himself
attended the ceremony for the repose of souls of the departed
unborn, performed in the mountain village of Chichibu (Saitama
Prefecture) to demonstrate his commitment to life.
Prime Minister Sato said, "I hear that Japan is widely known
as an "Abortion Paradise". It is loathesome for me even to hear
such a thing with my ears and pronounce it with my lips .... the
abuse must stop .... we must never forget that a baby is a gift of
nature and its life must be respected."
"1 have been requested to erect a statue of MIZUKO JIZO
(deity of unborn children) in memory of the children who were
aborted .... so that they may rest in peace .... 1 made it my
business to show respect for human life by attending the
ceremony. (Complete translation of text - USCL Reprint
#107-50*).
On May 24, the Cabinet approved the revision clause of the
EPL. BUI now goes to the National Diet for approval. Seicho
No Le Religious group with Catholic co-operation is spear-heading
the pro-life movement in Japan.
On June 4, 1972, ASAHI, the Japanese daily, ran an
article on the efforts of the Japan Family Planning Association
(the Inter. Planned Parenthood affiliate) to halt the revision of
EPL which would help tighten up the nation's abortion laws.
Following an emergency meeting of the JFPA, Chairman Dr.
Yoshio Koyasent a protest letter to the Diet attacking the revision
on the grounds that ( 1 ) if the EPL deletes the economic reason
for abortion, both illegal abortions and the fee for legal abortions
will increase (2) the number of illegitimate and unwanted children
will increase resulting in unhappiness (3) the hardships of life
will make psychological burdens increase .... (4) and the
recognition of reasons for abortion will become dependent upon
the subjective judgement of a physician, and it therefore becomes
easier for a physician to procure an abortion. Dr. Koya's con-
clusion is that the revision of the EPL would do more harm than
good.
Opposition to the revision may also be based on the fact that
so many physicians depend on extra profit from Japan's present
abortion law and that passage of the revision might signal a govern-
ment-campaign to increase its anti-abortion pressures. (USCL
Reprint #108-20*).
ENGLAND In its January, 1972 newsletter, the In-
ternational Planned Parenthood Federation described its educa-
tional and training objectives for 1972-1974 "Young people
are identified as a special target group."
"While the IPPF will press and assist UNESCO to penetrate the
school systems of all countries, a special effort is to be made by
the voluntary sector to reach those millions of young peor-i ' who
never get to school or who drop out of school after only a few
years of education . . ."
The IPPF is funded primarily by the U.S. tax-payers via USA1L
In February it sent a team of physicians to Decca to abort pregnant
Bangladesh women who had been the victims of rape under a pro-
gram called the "Bangladesh Women's Emancipation Program"
The short range purpose of this scheme is to establish abortion
centers across the nation to be manned by abortionists trained
by the IPPF. The long range plan calls for setting up facilities to
train women to become self-sufficient and socially better placed.
According to the Federation, ONE OF THE MAIN OBJEC-
TIVES OF THE PROGRAM IS TO RE-ESTABLISH AND SUP-
PORT FAMILY PLANNING PROGRAMS AND ENCOURAGE
SMALLER FAMIL1FS.
As for the Government of Bangladesh, it appears as if they
have had enough of the IPPF tactics. Recently, the Minister of
Health Abdul Malek Ukil announced "We have had enough of con-
traceptives. For me, family planning includes pre and post natal
care, maternity care, child nutrition and infant welfare.
Women Concerned for the Unborn Child in Pittsburgh, Pa. re-
cently sent a gift of $1,000 collected at their Right-to-Life
Ecumenical religious service to Bangladesh, for the care of the
children and their mothers - both victims of rape during the
war. Other pro-life groups may want to follow WCUC's fine
example.
CAMBRIDGE Bibliography on Family Planning and
Population, a bi-monthly list of references compiled from the
world's literature on abortion, population control, etc., is now
available from the Simon Population Trust, founded in 1957
to "help in the adjustment of world population to resources."
The first issue of the bibliography, July, 1972, carried num-
erous anti-life references. To see that a proper balance is
achieved, pro-life writers and/or groups should send copies of
books or articles to: Donn Casey, Simon Population Trust
Fund, Bibliography, 141 Newmarket Rd., Cambridge CBS
8 HA, England.
Through a special photocopy service utilizing coupons, pro-
life readers may obtain articles which are not available in the
U.S. The Bibliography ($3.00 single issue; $18.00 a year)
should be in every pro-life office as a reference for members
and leaders.
CANADA The subject of tax-supported provincial
aboritoriums or so called "Pregnancy Centres" to take pressures
off over-crowded and/or recalcitrant hospitals appeared in a
Globe editorial on Oct. 22, 1971. Such centres would include
beds, operating and recovery rooms, medical records department
and provide post-operative followup care and counseling. (USCL
Reprint #109-10*).
Dr. Benjamin Viel, Directot General of the International
Planned Parenthood Federation (England) stated that it will be
difficult to control world population if CONTRACEPTIVE
METHODS ARE NOT COMBINED WITH ABORTION. Address-
ing the annual meeting of the Family Planning Federation of
Canada, Dr. Viel said that consideration should be given to the
legalization of abortion as a means of reducing the increasing
world population but that abortion should be regarded as an
emergency measure followed by use of contraceptive methods to
prevent risk of further pregnancies. From Hamilton Special,
Dec. 15, 1971. (USCL Reprint #1 10-10*).
Addressing the College of Family Practice in Canada,
Dr. John Lederman of Vancouver stated that the early discovery
and relief of unwanted pregnancy may render objections to
abortion obsolete.
According to Dr. Lederman's reasoning people who do not
disapprove of the Pill, the 1UD, or "morning-after" pill do object
to abortion because it destroys a living fetus. Therefore, women
who have missed a period and suspect they are pregnant can go to
their doctors for a routine scraping or suction procedure. If not
pregnant, no harm would result. If she were, the newly implanted
egg would be removed . . . just like an endometrial biopsy. Thus
such a procedure would "reduce it to the point where it is not
offensive to anyone's ethics." From Globe and Mail, Sept. 15,
1971. pg. 9. (USCL Reprint #11 1-10*).
ITALY The Italian magazine EPOCA, Ap. 9, 1972,
carried an article on England's black market for French and Ger-
man babies to help fill adoption requests. The sharp decline of
available babies for adoption in England is credited to widespread
use of contraceptive pills and the fact that many unmarried wo-
men now keep their children. While waiting for the liberalization
of Common Market Adoptive regulations, the shameful commerce
continues as babies are sold to the highest bidder. (USCL
Reprint #1 1 2-F).
34
U.S. COALITION FOR LIFE
Vol. 2 No. 2
January. 1973
Mrs. Randy Engel, Editor
NeuPilett&i
P. O. Box 315
Export, Pa. 15632
BIRTH PATROL ON THE MARCH - "Fewer People for a Better World" is the theme song of the latest population control
agency, NPG - NEGATIVE POPULATION GROWTH, 103 Park Ave.. Suite 414. New York. New York 10007.
Listed among the Board members are
Edgar Chasteen. President of Compulsory Birth Control for ALL Americans. Liberty I ? I. Mo.
Richard Bowers, Zero Population Growth
Alfred Forsyth, Sierra Club
Stewart Ogilvy, Population Communication Center. (Population Institutel
Sir Julian Huxley (Patron)
Miss Shirley MacLaine
Miss Joanne Woodward
Shirley Radl, National Organization for Non-Parents
The precise goal of NPG is to reduce world population to ONE-HALF its present level via compulsory population control.
In the conflict between individual choice and the needs of society relating to family size, the conflict according to NPG must be
resolved in favor of the common good ... WITHOUT A SINGLE EXCEPTION".
"The forms and extent of the controls (to reduce population) must be decided by Congress. They could vary from
minumum and voluntary controls such as government guidelines to family size, at one end of the spectrum, to compulsory birth
control at the other end, with compulsory sterilization after one child. "
"However, whatever Congress decides as to the form of the necessary controls, it is essential that they be immediately
effective in getting the job done, and the population reduced. "
"National programs of population control must be put into effect now!" (Source: Statement of Purpose and Program
- Negative Population Growth, Inc. I
The Executive Director of NPG is John Rague, who is also the Executive Director of the Association for Voluntary
Sterilization.
OEO ISSUES STERILIZATION QUOTAS - In 1971,
the Office of Economic Opportunity amended its policies to
include contraceptive sterilization programs.
A grant of $240,000.00 was awarded to the Planned
Parenthood Association of the Southern Mountains and a
quota of 1 50 vasectomies and 150 tubal ligations established
for the Anderson County pilot project over a 2 year period.
Codedata, derived from interviews with sterilization ap-
plicants, who were unaware that they were guinea pigs in a
government pilot program, was then fed into computers by
the Tennessee Dept. of Public Health.
Implementation of similar "OEO projects", however,
have been temporarily suspended by OEO Director of
Health Affairs, Dr. Leon Cooper until the costs, priorities
and long range effects of contraceptive sterilization have
been more fully evaluated. Source: N.Y. Times, 5 28 72.
I Reprint No. 113-20cl.
OEO AND CONTRACEPTIVES TO MINORS - THE
RALEIGH PROJECT. On Nov. 11, 1969 the State
Edition of the Houston Chronicle ran an-article by Chicago
Times correspondent Tom Littlewood entitled, "U.S. Starts
Bold Plan for Pre-Pregnant Teens".
Financed by a two year grant from the Federal Office of
Economic Opportunity, the Raleigh Project featured a
health department clinic in a public housing neighborhood
which catered to black, unmarried teenage girls who had
never been pregnant. The program included "sex education
meetings" and distribution of contraceptives, as well as
physician referrals.
According to Mr. Littlewood, the Innovative OEO
program was part of "the frontier of social policy as the
government presses toward President Nixon's announced
goal of making birth control assistance available within five
years for all income women." He also noted that "As in
Raleigh, all of the most imaginative and successful programs
for 'pre-pregnant' teenagers are in black-urban neigh-
borhoods." (Reprint No.ll4-20cl
35
WHAT STAGE POPULATION CONTROL? - Ac-
cording to the Feb. 1970 issue of Population Bulletin, a
publication of the Population Reference Bureau, the
transition of great ideas pass through a series of states as
follows..
1. A few individuals crying in the wilderness 2.
Formation of nucleus groups aided by foundation
capital 3. Mass media coverage which increases as
does foundation support and the start of university
interest 4. Feeler bills introduced into Congress 5.
Opposition crystallization and delay in progress 6.
Appointment of high-level governmental com-
missions to win public support 7. Congressional
hearings resulting in federal funding, and 8.
"INCREASING acceptance of the legislation, its
strengthening in structural and financial terms,
and its incorporation into the institutions and
mores of society." Ip. 231.
In the area of population control, "private individuals,
private non-profit organizations and educational institutions
will be the key to success or failure in this effort." Ip. 24).
For a copy of this population control blueprint write :
Population Reference Bureau, IPRB.) 1755 Massachusetts
Ave. N. W.. Washington, D.C. 20036. $.50 copy.
NOTE ON P.R.B. - Founded in 1929. the P.R.B.
remained a one-man horse-show until 1954 when
millionaire-population controller, Hugh Moore bailed Guy
Irving Burch's agency out of bankruptcy. Mr. Moore made
himself chairman of the board and pulled in Standard Oil's
Frank Abrams who in turn pulled in Ford and Rockefeller
money. By 1966, the P.R.B. was operating on an annual
budget of $400,000.00.
The teacher's guide to Rockefeller's film,
POPULATION GROWTH and the AMERICAN
FUTURE, was prepared by the Population Reference
Bureau as was the population control grade-school text,
This Crowded World.
PHYSICIANS AND POPULATION CONTROL ■
In the October, 1971 issue of The New Physician,
ZPG leader and Chief Vasectomizer at Chicago's Midwest
Population Center, Dr. Lony Myers discusses in depth the
role of physicians in the new science of "hyponatology. the
art and science of lowering birth rates." Among the ten
mandated points for the medical profession listed by Dr.
Myers to cope with the "population-environment crisis" are ;
I. Recognize the need for an immediate plan to stabilize
population. II. Assume leadership in carrying out this plan ;
V . Support the concept that responsible parenthood means a
maximum of two natural children per family: VII. Accept
the principle that responsible sexual intercourse purely for
recreation is more socially responsible than intercourse solely
for procreation; IX. Promote alternate life styles for women
so that motherhood is not the dominant role of fulfillment,
(p. 6451.
More recently, Dr. Myers is peddling her Malthuaian
wares to the American College of Obstetricians and
Gynecologists, described by the ZPG's National Reporter as
"one of the bodies commonly accepted as setting standards
of behavior within the medical profession." For a look at Dr.
Myers' revised resolution, see the Nov. Dec. 1972 issue of
the National Reporter, 4080 Fabian Way, Palo Alto, Ca.
94393.
OPERATION LAWSUIT by AVS, ZPG, and ACLU
According to the Association for Voluntary
Sterilization's Jan. 19th Progress Report, OPERATION
LAWSUIT is a co-ordinated effort of the AVS and its allies,
primarily the American Civil Liberties Union and Zero
Population Growth, to force "backward" hospitals into
permitting contraceptive sterilization on request.
Two well publicized cases in recent months involve St.
Vincent's Hospital in Billings. Montana and Holy Rosary
Hospital in Miles City. While the former institution received
a small Federal grant under the Hill-Burton program, 17
years ago, the latter hospital is not supported in any way by
public funds. There is an aspect of these lawsuits which to
date has not been examined, however.
Specifically, in the Jan. 19th issue of the AVS Progress
Report (pg. 41 there was a partial statement reprinted from
a letter to the AVS from ACLU (Eastern Montana) Vice
Chairman, Robert Bulkley concerning the contraceptive
sterilization issue.
Keeping in mind that the consolidation of St. Vincent's
with Deaconess Hospital was not completed until June 5th,
1^72. and Mr. Bulkley's comments were made while con-
solidation processes were as yet not finalized, we
read "As a result (of the centralization of facilities), the
mother who wishes to be sterilized shortly after the delivery
of a child will be in a difficult position their rights will be
significantly reduced. WE ARE CO'iSIDERING
TAKING ACTION AGAINST THE CATHOLIC
HOSPITAL TO FORCE IT TO ALLOW
STERILIZATION AT LEAST IN THESE CIR-
CUMSTANCES...." (emphasis added!.
The listing of the Board of Directors of the Association
for Voluntary Sterilization (14 W. 40th St., N.Y.N.Y.
10018) includes numerous abortion-on-command advocates
including Lawrence Lader; Rev. Rodney Shaw; Paul
Ehrlich; Alan Guttmacher; Christopher Tietze; Emily
Mudd; Harriet Pilpel and Joseph Fletcher to name a few.
Pro-Life legal advisors should begin preparing now for a
new OPERATION LAWSUIT....this one directed at
recalcitrant hospitals which will not permit the killing of the
unborn to take place in their facilities.
36
HEW OFFICIAL DISCUSSES POLICIES
The new director of the U.S. Dept. of Health, Education and Welfare, National Center for Family Planning Services, Miss
Majorie Costa, in an address at the annual convention of the Planned Parenthood Federation, San Antonio, Oct. 23-26, stated
that a national program of sex education and human sexuality "from the pre-school level right on up" was advocated by her
department.
According to Miss Costa, the federal government is not funding any programs in which abortion is used as a means of
contraception or population control. (Source: American Medical News, Nov. 13, 19721.
Miss Costa, however failed, to explain how millions of dollars of federal funds being tunneled into Planned Parenthood
units, in the U.S. and abroad, will be prohibited from use in programs where abortion is used as a "back-stop to faulty or om-
mitted contraception," or as a population control measure as in Singapore or India.
For the record we quote Dr. Alan F. Guttmacher's statement on the role of abortion in Planned Parenthood programs
taken from "Planned Parenthood : Profile and Prospectus", F. P. Perspectives, Vol. 3, No. 1 Jan. 1971, Pgs. 57-58.
"To achieve this society (i.e. "the perfect contraceptive society"! we in Planned Parenthood must establish a multi-faceted
program which would include, in addition to contraceptive services, the following elements; contraceptive education for all
youth so that at the appropriate time in their lives contraception will be accepted as naturally as breathing ; infertility services,
including artificial donor insemination where necessary genetic counseling, ABORTION and sterilization; veneral disease
diagnosis and treatment. Many ofour Affiliates now include some of these services. IN THE FUTURE, ALL OR MOST OF
US MUST INCLUDE ALL OF THEM (emphasis added.)
Dr. Guttmacher concludes his two-page article with the suggestion that Planned Parenthood will shift its emphasis from
legal, religious, and bureaucratic battles to intergrating its programs into the growing "family planning network of hospitals,
health departments, and other nonprofit agencies"....
Presently most Planned Parenthood federal funding is conducted through so called, Regional Family Planning
"COUNCILS".
For example, in Illinois, HEW funds flow into the Illinois Family Planning Coordinating Council, and out to P.P. of
Chicago and its teeny-bopper affiliate TEEN SCENE.
In New York City, HEW funds flow into the N.Y.C. Inter-Agency Council on Family Planning and to PP of NYC which
operates two of its own aboritoriums.
UNICEF AND POPULATION CONTROL
The United Nation's Children's Fund according to the
Sept. 1972 issue of the International Planned Parenthood
News is now destined to play "a more agressive role in family
planning activities" as a result of implementing recom-
mendations of the WHO UNICEF Joint Policy Committee
approved by the Executive Board.
UNICEF's unholy alliance with the WHO. which sees
abortifacient drugs as a key weapon in population control in
developing countries, will center primarily in the area of
support for "advanced training in human reproduction,
population dynamics and family planning" with specific
emphasis on providing contraceptive supplies, equipment
and transport.
PASTE YOUR UMBRELLA BEFORE THE
RAIN is a booklet prepared by the Chinese Center for In-
ternational Training in Family Planning of Taiwan with
some technical aid from Rockefeller's Population Council.
UNICEF contributed $10,000.00 worth of paper and ink,
thuB making possible the initial printing of 440,000 copies,
enough for every boy and girl graduating in 1971 from junior
and senior high schools and vocational schools.
The thrust of this publication is unabashedly and
ruthlessly Malthusian-population control orientated.
Couples with large families i.e. more than two or three
children are depicted in a constant state of mental and
physical anguish. The "Population Explosion" is blamed for
a multitude of sins including refuse disposal, air and water
pollution, water shortage, heavy traffic and housing
problems.
Much of the section on contraception is truly heart-
warming. For example, the booklet cites the case history of a
college graduate infected and disabled from TB and finally
classified as a grade 1 indigent. They have six children ages
16 to two, and live on relief and the small income earned by
the wife. The reporter who originally cited the case in a
newspaper article was sympathetic to the sacrificing mother
but the authors of Paste Your Umbrella stated, "We
however, think that their troubles were caused by this stupid
couple themselves." (pg. 44-English version). The theme,
"every child a wanted child" and "two is enough!" is
repeated in the Family Planning Song at the conclusion of
the text;
"Family Planning has a theme
Two children as each couple's dream;
Three years after marriage, one-
Before 33 childbearing's done.
Let a small family be your goal
Just choose a method of birth control
Methods are safe and simple too
A happy future waits for you."
37
PRO-LIFE MEMBERS SEEK APPOINTMENT TO HEWS POPULATION COMMITTEE
In 1973, three positions will be open on the Secretary- of HEW's Advisory Committee on Population Affairs headed by
Dr. Louis Hellman. The Committee is divided into Services Task Force and Research Task Force members. Currently,
there are well known anti-life personalities sitting on each task force.
As of July 28th, Committee membership included the following :
Service Task Force Research Task Force
Mrs. Helen Martin. Chevy Chase, Md. (19731 Dr. Gorden Douglas. N.Y. N.Y. 119741
Judith Blake Davis. Berkeley, CA. (19741 Thomas Dietz. Kent, Ohio (19721
Cary H. Hall, Hampton, GA (19731 Mrs. Jo Anne Gray, Denver. Colorado, (1972)
Herbert J. Hutton. Philadelphia, Pa. (19741 Roy 0. Greep, PH.D., Boston, MA (19721
Richard K. Manoff, N.Y., N.Y. (1974) Mrs. Eunice S. Howe. Belmont, Mass. (19721
Ernest W. Page, San Francisco, CA. (19731 Norman Ryder, Ph.D., Princeton, N.J. (1973)
Pro-Life groups who wish to submit the namelsl of members who are interested in the areas of family planning and
population control demography for consideration by the Dept. of HEW should send in immediately, the names of the can-
didates, their qualification and interests to:
Dr. Louis Hellman. Chairman
Advisory Committee on Population Affairs
Dept. of HEW
Office of the Secretary,
Washington, D.C. 20201
9 Please send carbons of all correspondents to: President Nixon
HEW Sec., Casper Weinberger
Your U.S. Senator
The USCL (for filing!
Carbons should be accompanied by a letter requesting a proper balance of views be brought to this Committee.
ANTI-LIFE VIRUS THRIVING AT GEORGETOWN UNIVERSITY
"If you are definitely pregnant and decide that you wish to have an abortion performed, the Washington D.C. law is such £
that obtaining one here will present no particular trouble. There are a number of agencies and clinics that perform counselling £
and dispense abortion information in Washington. A list of them can be obtained by calling Georgetown University Hot Line at %
625-4194. Because safe and legal abortions can be obtained presently, there should be no reason to have an illegal one per- $
formed." X
"There are presently four methods of abortion that are generally used Dilation and Curettage. ..Vacuum Curet- £
..Saline Injection. ..and Hysterotomy. A method that is still somewhat in experimental stages but promises to come into £
Y more widespread use in the future is prostaglandin therapy. It should be remembered that these procedures are all
1 surgical operations and that they all can produce physical trauma. In order to lessen the extent of this, it is best
tage..
all considered
i best to have the
abortion performed as early as possible. Abortions after the 20th week should not be performed, since the likelihood of
irreparable harm to the mother and aborting a fully functioning human is very great. ..(p. 35-361.
"The intrauterine device (the IUDl is inserted into the uterus making it in some manner unreceptive to a fertilized
egg....lp.28).
"A method which costs little and exhibits no side effects, except possible enlargement of the female's abdomen is the
Rhythm method." (p. 31) the requirement of premeditated temperature-taking, and the rhythm method finds no effective
place on the college campus, (p. 441.
From Human Sexual Response-Ability
Students of Georgetown U., Inc.
Introduction-Rev. R. C. Baumiller, S. J. J
38
\BOH IIOVTHE NEW COMMODITY? Source-Legal Abortion: How Safe'.' How Available? How Costly?, Consumer
Reporta-Facte ^ou Need Before Von Buy No Advertising. July 1972. 60c I Address; P. O. Box 11 11. Mt. Vemon, N.Y.
105501. pgs. 166-470.
INDEX
Outboard motors Air-Conditioners Zippers Station Wagons Self-Cleaning Ovens
, El. Fans Legal Abortions
Ixmdspeakers
Marine-Radio Telephones
Putting "moral and religious" arguments aside. Consumer I'nion. confines itself to information gleaned "from doctors,
public health officials and abortion referral specialists" about "the safety, availability and costs of abortion." Information is
selected from the Joint Program for the Study of Abortion IJPSAI financed by Rockefeller's Population Council at a 0OS1 ol
(246.623.00.
Despite a prohibition policy of no advertising, the article lists the addresses and phone numbers for Family Planning In-
formation Service of N.Y.Cand the National Clergy Consultation Service, of N.Y.C., along with appropriate aboritorium fees.
According to Consumer Reports, the Clergy Consultation Services "was founded for the specific purpose of helping
women to obtain abortions. In 1971, some 3000 Clergy counselors handled more than 100.000 referrals for abortion."
While the report suggests that Planned Parenthood and Clergy Consultation Service are "non-profit" agencies and charge
no fee for referrals, it has been established that in certain areas of the countr\ . i. e., Los Angeles. Calif., a kick-back of between
$20-25 is received by these agencies per abortion. (L. A. Times West Magazine, July 23, 19721. Additionally, Planned
Parenthood of New York City operates two aboritoriums with fees ranging from $ 1 25 to $800 or more depending on length of
pregnancy.
Pennsylvania legislators might be interested in noting that " one hospital in Philadelphia performed more abortions in
1970 than all those in Delaware and South Carolina combined-even though the latter two states had recently liberalized their
laws." (pg. 4691
Pro-Life physicians will have a field-day with such comments as "In terms of fatalities, early abortion is far safer than
childbirth and SALINE ABORTION thus far appears to be somewhat safer than a full-term delivery in short, abortion is
safe only in competent medical hands.... ."Letters to the Editor of Consumer Reports may be directed to above address.
SEATTLE-KING COUNTY DISTRIBUTES
"MORNING-AFTER" PILL
According to Dr. T. L. Marks, Director of Family
Planning for Seattle-King County's Dept. of Public Health
the so called "Morning-After" Pill now under investigation
b\ Ilalph Nader's health research associates, "is available on
prescription from most physicians in the community, Family
Planning Clinics of the Health Department, Planned
Parenthood Center, and University affiliated clinics."
(Source: Seattle Times-9 7 711.
Among the nine points listed on the Seattle-King
County Health Dept. Acknowledgement and Consent and
Instruction sheet, which is signed by the patient and wit-
nessed are:
1. The effectiveness in preventing pregnancy cannot be
assured*.
21 This medication may cause serious reactions and com-
plications, both known and unknown to me and my fetus.
4. Side effects such as nausea and vomiting, headaches and
dizziness often severe, may occur with this medication.
9. Since the morning -after pill is not something I should take
repeatedly. I must use a method of birth control each time I
have intercourse to prevent pregnancy.
N< ill : This medication which has been linked with vaginal
cancer, and has not been approved by the Food and Drug
Administration, according to an administrator of Planned
Parenthood Center. Seattle, IS GIYT.N TO MINORS
WITHOUT PARENTAL CONSENT, by her agency.
OEE OFFERS ENVIRONMENTAL EDUCATION
HANDBOOK
The U. S. Office of Education has issued a draft of the
Environmental Education Handbook which outlines the
projects and requirements for grants of the Office of En-
vironmental Education.
In 1972, the OEE made six grants, totaling
$127,000.00 for "population education".
Pro-Life organizations or interested individuals should
write immediately for the Handbook and request an ap-
plication if they are interested in filing for an environmental
grant in the areas of population, resources, etc.
Last fiscal year, awards went to the following;
$13,000 111 Alexis DuPont School. Greenville, DE for
Population Environment Project
$35,000 121 Indiana University Foundation, Bloomington,
IN. for H.S. Population Unit
$20,000 (31 U. of North Carolina, Chapel Hill, N.C.- In-
service Training Program
$ 4,000 (4) ZPG-Fargo-Moorehead Chapter-Rural
Population Study-Booth, Fargo, N.D.
$ 5,000 (51 U. of Cincinnati. Cincinnati, Ohio for
Population Education Inservice Course.
$50,000 (6) Population Education, Inc., Washington, DC-
Secondary School Population Education.
Handbook and applications available from:
Office of Environmental Education
400 Maryland Ave., S.W.
Washington, D.C. 20202
39
WHITE HOUSE PROBES HEW INVOLVEMENT IN ROCKEFELLER FILM
President Nixon's advisor, John Ehrlichman, charged with domestic affairs, is investigating the role of the Dept. of HEW
in the sponsorship and distribution of the film Population Growth and the American Future, which was aired over the PBS
on Nov. 29th, 1972.
HEW funds authorized for film distribution, the preparation of study guides and teachers materials, purchase of films, cost
of editing film into "teaching modules" and grant to Population Education, Inc. now totals more than $220,000.00.
The USCL has asked Dr. Ehrlichman to make public all grants and contracts involved in the project including the $50,000
grant to Population Education, Inc. from the U.S. Office of Environmental Education. It has also asked that all materials
currently being edited and prepared by Dr. Louis Hellman's Office of Population Affairs be first reviewed by a special
Congressional Committee appointed by the President to assure that the views presented are objective and balanced.
Since the Dept. of HEW has already purchased 100 copies of the Rockefeller film, the U.S. Coalition for Life has
requested that 100 copies of the second PBS hour be purchased and that the Office of Environmental Education and Office of
Population provide equivalent funds to the U.S.C.L. for the preparation of teaching materials similar to those now being
prepared to accompany the film.
Negotiations are expected to take several months, and the film is expected to be withheld until government administrators
can assure the taxpayer that all points of view are being heard on the population question.
For additional details see USCL MEMO for Jan. 20, 1973.
A.I.D. OFFICIAL ADDRESSES IPPF MEDICAL
AND SCIENTIFIC CONGRESS- SYDNEY, AUGUST
1972
Dr. R. T. Ravenholt, director of the Office of
Population, USAID, took note of the fact that from 1965-
1972 AID allocated $385 million towards population
programming. According to Dr. Ravenholt it was becoming
increasingly necessary to reach young women to curb early
reproduction. He said that no coercion should be employed,
but all methods should be made available in family planning
programs, including ABORTION.
A significant portion of the IPPF agenda was given over
to abortifacient agents such as prostaglandins. Dr. S. S.
Ratnam of Singapore stated his hospital used prostaglandins
for 2nd trimester abortion and that his trial supply came
from the IPPF.
Dr. Ben Branch of PRETERM, Washington, D.C.'s
key aboritorium, evaluated outpatient vacuum aspiration
programs which he expected would reduce long-term
problems of future spontaneous abortion, ectopic pregnancy
pre-mature delivery and involuntary sterility.
Dr. R. P. Soonawala of India discussed his massive
experiments with 5,000 vaginal sterilizations of which 2,269
were under his own supervision. He stated that Indian
women were more likely to come to the sterilizing operating
theatres if the word "operation" was no used. The women
instead were told that a stitch would be put in the vagina and
they would be safeguarded from having further children.
Patients were advised not to have sexual relations for 4-6
weeks by telling their husbands that this might disturb the
stitch.
Dr. Rosenfield presented a paper on the effect of the
copper T-IUD, which he suggested interfered with the
implantation of the blastocyst.
Dr. Malcolm Potts, of the IPPF, presented the final
conference paper on coitus-interruptus or withdrawal which
he stated should have a place in family planning programs,
as this method of birth control could serve as a conditioning
agent to the acceptance of clinic-based methods. According
to Dr. Potts, withdrawal when combined with legal abortion
might present less risk of morbidity and mortality than the
continued use of medical methods of contraception with their
"rare but sometimes serious side-effects."
USCL Reprint No. 1 19
ZPG AND CONSCIENTIOUS OBJECTOR STATUS -
Prolife groups and individuals who wish to have Zero
Population Growth removed from the alternate service
program of the Selective Service as "a non-profit
organization contributing to the national health, safety and
welfare" may send letters accompanied when possible, by
clippings of local ZPG anti-life activities to:
Mr. Byron Pepitone, Acting National Director
Selective Service System
Washington, D.C.
"HOW TO GET 6,000 ABORTIONS A DAY!"
Contraception-Sterilization-Abortion-Population Control.
Anthony Zimmerman, SVD, STD covers them all in an
excellent expose of the true nature and consequences of
governmental population control programs
"....And another Korean official told us at the Second
World Population Conference that a nation which launches a
birth control campaign owes it to the citizens to liberalize
abortion laws to a certain extent "
"Accidental pregnancy is a real disadvantage in the use
of this method IIUDI. Patients are often very upset or even
hysterical when told that they are pregnant. Dr. Guttmacher
(USAI recommends induced abortion..." (comments of Prof.
Chun of Hong Kongl.
"There should be no statutory compulsion toward this
(mass sterilization), but there is a need for mobilizing public
opinion in such a manner as to operate as moral com-
pulsion " Comments of Mr. R. A. Gopalawami at 1963
Asian Population Conferency at New Delhi.
Study copy of Zimmerman article originally published
in the Dec. 1966 issue of The Reign of the Sacred Heart is
available from the USCL. Order Reprint No. 1 16 - 50c.
40
INDIA'S MEDICAL TERMINATION <>K PREGNANCY ACT. 1971 was analyzed by Drs. R. Koteswara Raq and
G. R. Bhaskar at the International Conference on Family Planning, New Delhi. March 12-16, 1972.
I ndet present regulations, abortions must be earned out by a Registered Medical Practitioner, i.e., allopathic doctors, who
are registered with a Medical Council and who have undergone training or gained experience as prescribed by the Central
Government. Six weeks of training at a teaching hospital with a minumum killing of 12 unborn children is the suggested
program.
Abortions are carried out if 1 1 1 the life or physical or mental health of the mother is threatened or (21 if the child might be
seriously mentally or physicially handicapped.
According to the explanation offered by the Indian physicians, the above criteria would cover pregnancy due to rape and
"Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the
purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitue a
grave injur) to the mental health of the pregnant woman."
< >|mti -eason on the unborn is limited to the first twenty weeks of pregnancy. Minors or lunatics require written consent of
guardian.
Abortions may be carried out in Government Hospitals and approved private aboritoriums set aside for this purpose.
NOTE : In a medical emergency, an abortion may be carried out at any time, regardless of period of gestation of the child,
in any private hospital b> any doctor regardless of training or experience.
Additional beds for abortion patients may be set up in the General or District Hdqs. Hospital. "The same plan as adopted
for post partiim theatres and sterilization wards may be adopted."
USCL Reprint No. 1 1 7 - 40c
% According to Prof. A. Dass of New Delhi who also participated in the International Conference, "With liberalization of the
abortion law early pregnancy detection has become a means of offering comprehensive obsteric management induction of
abortion is safest between the 6th to the 8th week and the best and least traumatic method is vacuum aspiration. At this period
of gestation vaginal tubal ligation is easy. ...a nation wide publicity campaign and a quick and efficient service would greatly
contribute to the success of the programme."
USCL Reprint No. 1 18 - 30c
NOTE : India's current abortion programme appears to follow the guidelines set forth in the U.S. Agency for International
Development Population Report (Dec. 1971 1 which called for a "pregnancy-centered approach" to family planning programs
where early pregnancy detection is combined with abortion, contraception and sterilization services, (p. 34-35.)
According to the AID report, India's Abortion-on-Demand "now poses a mighty challenge to the Indian Government." Ip.
1791.
In June 1970 AID made a grant of $20 million dollars to India for expanding its family planning programs. This is in
addition to over $20 million dollars given to various projects involving condom manufacturing, bi-medical research and manu-
facture of 6,000 f.p. vehicles.
India receives aid from other agencies including the International Planned Parenthood Federation. Rockefeller's
Population Council, The Pathfinder Fund, the Ford Foundation, the Rockefeller Foundation, CARE, Oxfam and the World
Assembly of Youth IWAYI, the Peace Corps; UNICEF, the U.N. Fund for Population Activities, and from the nations of
Sweden, Denmark and the United Kingdom.
(Ed. note- Almost all of the above U. S. based agencies receive the major portion of their funding from A.I.D. I.
In the Jan. 1972 issue of AID's War on Hunger, an article entitled "Selling' Vasectomies in India" featured the activities
of Dr. Datta Pai, who according to AID writer Carl Purcell is attempting to "liberate his country from the ominous threat of
overpopulation". Photographed in the AID publication was the sterilization booths and illuminated scoreboard at Emakulam
District and Dr. Pai's mobile family planning bus.
According to the Nov.-Dec. issue of ZPG's National Reporter, Dr. Pai's comprehensive program now includes "services
from sterilization to supervised abortions" if government incentive programs fail, enforced government quotas would be next,
Dr. Pai believes. Ip. 41.
41
OEO AND THE SARASOTA PROJECT • The Federal
Office of Economic Opportunity is currently financing a pilot
project for the University of Florida serving the counties of
Manatee, Charlotte. DeSoto. and Hardee.
According to Mr. Roy J. Schaffer, Executive Director of
Planned Parenthood Association of Sarasota County, Inc.,
an agency funded by the Dept. of HEW, "Girls as young as
12 and 13 can get contraceptive information and or medical
care through our program without parental consent...."
Mr. Schaffer. who. is handling the OEO project stated
that in addition to obtaining a quick test for pregnancy . "We
counsel pregnant girls.. ..determine if a therapeutic abortion
is possible, or if the baby is definitely wanted"
"The basic plan is to keep unwanted children from
being born." he explained, "and since responsible kids are
engaging in sex, they should obtain accurate medical in-
formation." The family planning project includes in-
formation in the areas of birth control, maternity care,
sterilization and abortions. I Reprint No. 115-20cl.
PLANNED PARENTHOOD Pl^BLICATION NOW
FEDERALLY FUNDED
In the Oct. 1971 issue of PP's Family Planning
Perspectives (pg.5l. the transfer of the "Literature and
Comment" section of this publication to a new publication
called Family Planning Digest was announced. As of Jan.
1972, the Digest has been published and financed by the
National Center for Family Planning Services of the
Dept. of HEW but prepared by Planned Parenthood- World
Population's Publication Unit of the Center for Family
Planning Development.
According to Mr. Richard Lincoln, PP's Director of
Publications, articles to be digested are selected by the
NCFPS which is the technical assistance Division of PF-
WP, in consultation with NEW's NCFPS. All over
responsibility for materials published and editorial comment
lie with Mr. Lincoln.
The Digest, according to Mr. Lincoln, is nut a periodical
of primary publication but rather a digest of materials
already published. Selection is based on "usefulness fur
professionals involved in organized family planning activ itiefi
in the United States."
The most frequently covered topics covered in this bi-
monthly 'government' publication are vasectomy, teenage
contraceptive programs, abortifacient drugs, Sangerite
philosophy, "unwanted children ', sex education, and the
poor and birth control.
The March issue of the Digest contained a large article
on "Prostaglandins: New Birth Control Hope "r
Headache": the July issue contained another entitled.
"Health and Social Impact of Legalized Abortion ": and the
Sept. issue evaluated Tietze and Lewit's study on the medical
complications of legal abortion. In the May issue under
"contraceptive practice" an evaluation of the Human Life
Foundation's Conference on Natural Family planning was
made. Of the five issues published between Jan. and Sept.
1972, the latter was the only reference made in the Digest to
regulation of family size by sexual continence based on the
natural rhythms of the body.
The Digest also publishes a want ad section for Planned
Parenthood affiliates at home and abroad and a few
governmental family planning agencies.
NOTE : Before taking any action regarding the
government financing of this publication, the Coalition plans
to offer the Dept. of HEW an opportunity to balance the
content of the Digest. The USCL therefore requests that Pro-
Life groups submit published articles on any of the topics
mentioned above to: Lynn C. Landman. Editor
F. P. Digest, Center for F. P. Programs
315 Madison Ave.. PP-WP. NY.Y. N.Y. 10022
FEDERAL AGENCY SPONSORS STERILIZATION CONFERENCE
The U.S. Agency for International Development (AID I has granted to the International Project of the Association for
Voluntary Sterilization, a contract of $2,000,000.00 for an international conference on voluntary sterilization as a potential
method of family planning and fertility limitation.
The four day conference, to be held in Geneva from Feb. 25 - March 1, 1973, "will provide the groundwork for an in-
ternational communications network of voluntary organizations, professional and governmental agencies, and other interested
groups."
The many aspects of the International Project involve public campaigns, training programs; the formation of an in-
ternational sterilization federation ; research and information and communication activities.
AID public tax dollars have in recent years been used to finance a numbe* of similar conferences and workshops including
(II a Johns Hopkins Conference on Population Dynamics 119651 121 a National Academy of Sciences Symposium on
Population Policiesl 19701 131 a gTant to support the general conference of the International Union of Scientific Study of
Population in London 1 1970) (41 the Third International Conference on Prostaglandins held by the N.Y. Academy of Sciences
(1971) (51 a grant to support a regional meeting of the International Planned Parenthood Federation in Korea ( 19651 161 a
grant in support of a 4-day international conference relating to Social Work and Population Dynamics and Family Planning.
(1969) (7) International Communication Seminar at U. of North Carolina (19681 (8) Financial support of World Assembly of
Youth (WAY) conferences to promote family planning (1969; 1970; 1971) (91 International Conferenc of Midwives. London
(1971) (10) Family Planning Seminars, PP-Chicago (1970:1971)
42
;oro
FEDERAL GOTCR.NMENT CONDUCTS "STOP THE STORK" CAMPAIGN
"Can Mass Media Advertising Increase Contraceptive Use?", was the subject of a mass media experiment in family
planning, conducted by the Family Planning Evaluation Project of Maternal and Child Health of the U. of North Carolina.
The 6 month, multi-media advertising campaign undertaken in four U.S. cities.-Columbus. Ohio, Memphis, Tennessee.
Altoona. Pa. and Jackson, Miss., - was financed by the Dept. of HE W's Health Services and Mental Health Administration and
the Rockefeller Foundation
In addition to covering all research costs, the Division of the Maternal and Child Health Service of HSMHA advanced the
project. $30,000 specifically for media plans and basic layouts developed by the J. W. Thompson Company.
The Rockefeller grant of $85,000 was used for actual production of advertisements for radio, t. v. magazine, and
newspaper ads. while the National Center for Family Planning Services kicked in $252,000 directly for funding family plan-
ning projects in the four cities for purchase of media time and space.
The Thompson Agency's STOP THE STORK ad, featuring a teenage couple necking on a park bench was directed at the
unmarried and the child-saturated married couple while the Robert Blake ads placed emphasis on married couples who want
children later. The ads were run in Life and Look magazines and on radio and t.v.
Conclusions of the mass media campaign indicated that generally it is not an effective means of increasing clinic attendence
or in increasing nonclinic sales of contraceptives. (Source-Family Planning Perspectives, Vol. 4, No. 3 July 1972 Reprint
from P.P. at 30c per copy. I
Ed. Note-A national prolife delegation may want to investigate a Dept. of HEW grant involving the use of the mass media
to promote a pro-life mentality in the U. S.
NOTE. .ABC's TV "Population: Boom or Doom!" documentary made reference to this project involving the mass media
and birth control advertising.
COMPULSORY BIRTH CONTROL OF FEMALE WELFARE RECIPIENTS PROPOSED
109th General Assembly (State of Ohio)
Regular Session
1971-1972
H.B.No.512
Mr. Netzley
A BILL
To amend section 5107.03, and to enact section 3709.41 of the Revised Code to
make injections of a contraceptive drug an Aid to Dependent Children eligibility
requirement.
The contraceptive drug specified in Mr. Netzley 's bill was DEPO PROVERA, to be administered on "an every third
month treatment basis" to any person attempting to qualify for ADC support. No ADC child would be eligible for aid unless his
mother possessed a written certificate of pregnancy immunization from the Board of Health of a city or general health district.
Such immunizations could be administered by ( 1 ) a voluntary nonprofit PLANNED PARENTHOOD SERVICE, or (21 a
licensed physician.
DEPO-PROVERA is a registered drug of the Upjohn Company, Kalamazoo Michigan. In the April 1972 (Vol. 8, No. 41
issue of The Journal of Reproductive Medicine, Dr. T. J. Vecchio, of Upjohn's Medical Research Division outlines the
international experience in over 20,000 cases using DEPO-PROVERA for primarily three month regimens.
Among the complications listed by Dr. Vecchio were unpredictable patterns of bleeding, some complete amenorrhea, with
most women showing olito-amenorrhea i.e. sporadic-irregular menstrual cycles. A few cases required curettages to stop
hemorrhaging; others, supplemental dosages of oral estrogen; and there were six thrombotic episodes reported. The average
delay in return of fertility was five months.
(USCL Reprints No. 121 and No. 122- 40cl
POPULATION CONTROL AND FUTURE HOMEMAKERS OF AMERICA -
On Nov. 11th, UPI (N.Y.I ran a wire service feature on a survey on society and the family, conducted by the national
Future HomenuuVers of America IFHAI Public Relations Committee. The report was carried in the Nov. Journal of Home
Economics, published by the American Home Economics Association (AHEAI. The association and the U.S. Office of
Education (USOEI jointly sponsor FHA.
Among the areas of concern expressed by the 75 respondents, which supposedly "delivered a kind of consensus among the
FHA's half million members" were pollution, overpopulation, male and female roles, etc.
One of the selected replies aired by UPI on the subject of family planning was:
"My mother contributed more than her fair Bhare to the population explosion. I plan to bear no children as I feel there are
43
too many unwanted babies brought into the world and I can better help in other ways than through motherhood..."
Seven months prior to the survey release. Teen Times IMay-721 the official mouthpiece of the Future Homemakers of
America, which is funded by the American Economics Assoc, and the U.S. Office of Education ran a feature entitled, The
Population Liberation Crisis".
The introduction of the article is a hard sell for the N.Y. Times population supplement prepared by PP-WP and the
Population Crisis Committee from which Congresswoman Patsy Mink's (D-Hawaiil statement was taken and reprinted in full
in Teen Times.
In addition to the usual population control rhetoric, Mrs. Mink views the question of abortion as a matter of women's
rights rather than a population control issue. "Women seeking legalized abortion want the right of control over their own
bodies it makes more sense to prevent pregnancy that to seek its termination, but the right of termination must exist as a
human choice "
"...When we achieve population control, all society will benefit, but the women will win the most, with a new promise of
equality," Mrs. Mink concluded.
Recommended action by Future Homemakers included writing for the Times supplement ; and contributing some ideas
for classroom discussion of "this population crisis".
(FHA, National Hdqs. 2010 Massachusetts Ave., NW, Washington, DC 20036.1
POPULATION CONTROL AND THE MASS MEDIA -
In 1967, a series of Summer Workshops were held at the University of Chicago by the Community and Family Study
Center. The proceedings of these workshops were compiled by Donald Bogue into a soft-bound text entitled Mass Com-
munication and Motivation for Birth Control (Ed. note - the terms birth control and population control are used in-
terchangeably in the text.)
Funds for these workshops and the U. of Chicago's Population Control and Demographic projects and student programs
are derived from the following sources:
• Ford Foundation
• Population Council
• U.S. Agency for International Development
• U. S. Public Health Service
• U. S. National Institute
• Pan American Union
• OCED
• Pan American WHO
The Bogue compilation includes a student contribution, "A Sign for the Times" by Harry L. Levin I pgs. 315-323.1. Among
the suggestions made by Mr. Levin were-
1 1 1 Standardization of population control data into a language system similar to Fortran to analyze and develop input into
meaningful terms.
( 2 1 The harnessing of material profit in population control programming, i.e., an IID ("Instant Identification Device"!, a
simple symbol to be used by every population control institution in the state, nation and world.
131 A Demographic Computation Institute, designed to collect and analyze population control matters perhaps under the
U.N.
(41 A CEASE CORPS - the enlistment of recruits to carry forth the population control message to schools, colleges ect.
(51 IUD Holiday Centers - using medical traveling teams and facilities
(61 Catholics Unanimous or any Group Unanimous - the cultivation of Catholic and other groups who will support
government financing and action in population control field.
(71 A Birth Control Products version of Avon Products or Fuller Brush.
(8) Emphasis on commercial aspects of birth control products.... "the sale of contraceptive products offers the largest mark-
up, fastest turn-over of inventory, and largest net profit of any item other than prescription items."
(91 A population-birth control version of Dear Abby!
(101 Photo, entertainment or sports ticket incentives for Planned Parenthood visit.
(Ill Development of youth indoctrination material similar to Dr. Seuss stories.. ."Jack and Jill Went on the Pill", the
creation of early reading and primary grade books on population-birth control theme
Order from Community and Family Study Center, 1 126 E. 59th St., Chicago, 37. 111.
44
MAUDE IS A FRAUD - The L'SCL joins with Women Concerned for the Unborn Child and our Pro-Life colleague
around the nation in a one-year boycott of all sponsors of MAUDE, CBS's comedy of liberal theology which featured on Nov
14th and 21st, an abortion-sterilization-population control trilogy.
Sponsors, listed below have been notified of the USCL decision :
Lipton Tea. Office of the President, Thomas J. Lipton. Englewood Cliffs. N.J.. (17632
Krito-Lay Office of the President, Dallas. Tex.
Norelco, 100 East 42nd Street, New York, N.Y. 10017
General Electric. 570 Lexington Avenue, New York. N.Y. 10022
Mattel Toys. 5150 Rosecrans Boulevard. Hawthorne, Calif., 90025
Breck. Berdcn Avenue, Wayne. J.J. 07470
and Alberto Culver, 2525 Armitage Avenue, Melrose Park, III., 60160.
NOTE IN LIGHT OF THE FACT
THAT THE STATE DEPARTMENT VIA AID
HAS GRANTED MILLIONS OF TAX
DOLLARS AT HOME AND ABROAD TO
COMMITTED ANTI-LIFE GROUPS. CON-
FERENCES SUCH AS THOSE SPONSORED
BY THE INTERNATIONAL PLANNED
PARENTHOOD FEDERATION. AND HAS
FINANCED SEMINARS ON ABORTIFACIENT
RESEARCH. THE U.S.C.L. HAS BEGUN
INITIAL PROCEEDINGS TO OBTAIN A
MULTI-MILLION DOLLAR AID-STATE DEPT.
GRANT FOR THE PURPOSE OF HOLDING
AN INTERNATIONAL COALITION FOR LIFE
CONFERENCE WHICH WILL FEATURE
SPECIALISTS IN A WIDE VARIETY OF
FIELDS RELATING TO FETAL DEVELOP-
MENT: REPRODUCTIVE BEHAVIOR: THE
MEDICAL. LEGAL. SOCIAL AND ETHICAL
ASPECTS OF ABORTION. STERILIZATION,
AND ENTHANASIA AND OTHER RELATED
AREAS. DETAILS TO FOLLOW.
POPULATION CONTROL, ABORTION,
AND
THE NATIONAL COUNCIL OF CHURCHES
In November, Dr. Cynthia Wedel, president of the
National Council of Churches, told an interviewer in
Michigan that abortion is not a matter to be handled by the
criminal law or the courts. "Abortion should be decided by
the woman and a doctor," Dr. Wedel said, "The length of
time before the abortion - none of these things ought to be
handled by law. This is just not a criminal situation."
iSource - National Catholic Register - Nov. 12, 1972).
It should also be noted that Dr. Wedel sits in the
population control camp of the Population Institute - the
troika which, also features Harold Bostrom lof the Victor-
Bostrom Fund, the fund raising arm of Planned Paren-
thoodl. Rodney Shaw, Assoc, for Voluntary Sterilization,
Willard Wirtz. Congress for Optimum Population and Rev.
John ' O'Brien, population control advocate from Notre
Dame, and Bill Ryerson, of ZPG,
The Population Institute's Population Communication
Center. 1475 Riverside Dr. NY 100271 faffed by David
Poindexter and Casey Derrick feeds the mass media their
population control pabulum on a regular basis while the
Institute's Student Project, (Population Institute, 100
Maryland Ave., NE, Washington, DC 200021 caters to
youth and the Institute's Ethics Project, (Wesley Theological
Seminary, 4400 Massachusetts Ave., NW, Washington.
D.C. 200161 to "ethicicists, theologians, and population
experts".
The Population Institute is currently offering a
$5,000.00 award for the best 30 minute script on population
control produced on prime-time television between Sept.
1972 and June. 1973.
PROSTAGLANDIN-ABORTIFACIENT RESEARCH
AND AID
In the January, 1972 Health Services and Mental
Health Administration Report IDept. of HEW, Vol. 87, No.
1-4 Pgs. 41-421 an anonymous article entitled, "Birth
Control Method Tried Alter the Fact" describes federally
sponsored abortifacient research and clinical testing at tin' I
of North Carolina, Chapel Hill.
According to the HSMHA report, the work of Dr. S.
Bergstrom at the Karolinska Hospital in Stockholm in the
induction of abortion using prostaglandins, in the late
1960's, stimulated the interest of U. of N.C. researchers.
"In August 1970, a research team at the university,
headed by Dr. Charles Hendricks, chairman. Department of
obstetrics and gynecology at the University'9 Memorial
Hospital began using prostaglandins as abortifacients."
In 1971, 46 experimental abortions were carried out on
women 6-20 week9 pregnant.
45
"Besides being effective abortifacienls, prostaglandins
were found to bring on menstruation prior to implantation of
the egg which normally occurs about six weeks (?l after
intercourse."
Team researchers Dr. William Brenner and Dr.
Frederick Kroncke see prostaglandins as being superior to
other birth control methods.
The report article concludes, "Until recently, most of
the funds for the prostaglandin research have come directly
from the U. of N.C., Dept. of Ob.-GYN. with some
assistance from the Upjohn Company, which supplies
prostaglandins to the investigators. Since mid-July 1971,
money has also been received from a grant from the Agency
for International Development to the North Carolina
Population Center."
USCL Reprint No. 120 -30c
The N.C. Population Center was established in 1966 by
a $268,000 grant from AID to provide training facilities and
consultative services to AID for development and im-
plementation of population programs. (Project 031.11-570-
814; csd-10591. Between the period of 1965-1971. the
university has received more than $12 million in AID
population funding including; $1.6 million for population
program designs; 3.1 million for the establishment of an
international network of field trial centers to evaluate new
methods of fertility control INCLUDING THK SUP-
PORT OF PROSTAGLANDIN FIELD TRIAL
STUDIES.
In addition. AID grants for prostaglandin-abortifacient
research have been awarded to Worcester Foundation ($2.9
million I; U. of Wisconsin ($227,0001 Washington
University ($293,0001 and Makerere U. in Unganda
($821,000).
According to AID's Office of Population, all research
and testing of "family planning drugs and devices" carried
out by AID are in keeping with Title X of the Foreign
Assistance Act.
CHILD DEVELOPMENT NATIONAL ADVISORY COMMITTEE. Dept. of HEW, Office of the Secretary.
The U. S. Coalition for Life and its Pro- Life associates have been invited by the Dept. of HEW, Special Projects Division,
to submit the names of candidates to be considered for appointment to the Child Development Advisory Committee. The
following information is needed in order to consider a candidate for appointment:
1. Name
2. Home address (If student, a parent's address!
3. Business address (If student, a college mailing address)
4. Date and place of birth
5. Education and or Training
6. In Detail - Professional background or Community Contributions
7. In Detail - Special interests as they relate to Professional Background, Community Contributions, or Education and
Training.
NOTE : Recommendations and endorsement information should be transmitted separately.
ACTION LINE
Pro- Life agencies as well as individuals are asked to submit this resume information for committee evaluation of candidates
for appointment to the Child Development National Advisory Committee:
TO: Director, Special Projects
Child Development Committee
Dept. of HEW
Office of the Secretary
Washington, D.C. 20201
Additional information on the authority, structure, and functions of the Committee are available on request from the Dept.
of HEW.
The U. S. Coalition for Life was created to serve as a
national and international clearing house for Pro-Life
organizations and individuals seeking information and
research materials in the areas of population control,
euthanasia, genetic engineering, abortion and related areas.
Its primary function is one of service rather than
organization or control.
The U.S.C.L. Reprint Service is designed to provide
documentation and resource materials for the Pro-Life
Movement. Costs include both copying and postage ex-
penses. All reprints are to be used as study copies only. In
case of copyrighted materials, permission must be obtained
from the publisher or author directly, except for brief quotes
which may be used with proper credit.
Subscription Rate is $3.00 a year which includes both
the Newsletter and special USCL mailings relating to current
areas of controversy or Pro-Life interest.
Editor - Randy Engel
46
Vol. 2 No. 3
May, 1973
Mrs. Randy Engel. Editor
Published by
U.S. Coalition for Life
Box 315, Export, Pa. 15632
Fetal Experimentation
The U.S. Coalition for Life in conjunction with
Women Concerned for the In born Child filed written
testimony on human experimentation involving unborn
children and clinic patients with the Senate Health Sub-
committee on Human Experimentation on March 6, 1973
after being refused seating at the public hearings
scheduled late in February and the first week in March.
Dr Lawrence Horowitz, charged with hearing
scheduling, stated that seats for oral presentations had been
booked months in advance and that the final day of
hearings, i.e. March 8th was reserved for "world experts".
Furthermore, Dr. Horowitz stated that the committee
would not be investigating abortion or any aspect thereof
and that Coalition testimony relating to the use of poor,
clinic patients for abortifacient experimentation was not
relevant to topics being discussed at that time. Another
government official said that the hearings called by Sen.
Edward Kennedy were simply restricted to those issues the
Senator wished made public and that anything related to
abortion was not applicable at this time, including ex-
perimentation on the unborn.
One month later. Capital newspapers exploded with
the news that the National Institutes of Health (HEW!
have been deliberating the issue of experimentation on
children bom alive via abortion for more than a year, and
were considering the possibility of adopting guidelines on
such experimentation similar to those approved in England.
On April 18, the NIH stated publicly that the
government agency which is the prime source of funds for
American research laboratories, will not support "research
on live, aborted human fetuses."
77ir Coalition has documented evidence to the con-
trary. We know that there arc numerous medical-research
(enters in the U.S. which receive NIH funds, that are using
live aborted babies for a wide variety of experimental
purposes, and that NIH personnel have been sent abroad to
Finland, Sweden and elsewhere to conduct experiments
using such children.
Clearly, a full, public congressional investigation into
this matter is necessary since it is unlikely that the NIH can
be counted on to make such disclosures on such ex-
perimentation, any more than it is able to disclose the
millions of tax dollars it is currently awarding for abor-
tifacient research and clinical testing.
Action Line - Write to your federal legislators and ask
them to support a Congressional investigation of such
experimentation including "research" on live aborted
babies and abortifacient experimental drugs which turn
wombs into tombs. The Coalition has wired Sen. Kennedy
asking that he set a date for public hearings on these and
related topics by his Senate Health Subcommittee. Also,
President Nixon has been asked to take action on
withholding NIH funds until such time as the agency sets
down specific guidelines ruling OUT the use of live aborted
babies for experimentation purposes by research labs and
medical schools receiving federal funds.
The Coalition has prepared a packet of materials on
fetal experimentation in the U.S. and England and Europe,
for the use of pro-life groups. Cost per packet is $5.00 to
cover postage and printing costs.
TAX-FUNDS TO UPJOHN COMPANY FOR
ABORTIFACIENT RESEARCH
Portions of the millions of dollars of federal funds
being used to develop "effective and safe" abortifacient
drugs which will meet FDA requirements have found their
way to the Upjohn Pharmaceutical Company via the U.S.
National Institute of Health (NIH). Population
Research, an inventory of federally sponsored programs,
fiscal year 1971, clearly documents this fact.
For example in 1969, John Johnston of the Upjohn
Company was awarded a four year contract from the NIH
for prostaglandin research in new developments of "fertility
regulation techniques". Total project cost: $200,587.00.
In 1971, Kenneth Kirton of Upjohn received $42,913
fur research relating to "Quantification of Prostaglandins
(monkeys, humansl."
The Upjohn Company has jusi petitioned the Food
and Drug Administration IFDAI to ok the use of
prostaglandins as abortifacient agents. An FDA agent told
the Coalition that they are currently studying English
research and data on the commercial sale of prostaglandins
as abortifacient agents since England approved use of the
drug late last year.
Other contracts, of immediate interest to prolife
researchers and federal legislators, include:
( 1 ) $24,604 - Black resistance to Family Planning Cen-
ters, M.F. Roseman, Moorehouse College, Atlanta, Ga.
(21 $249,735 to a Yugoslavian teaching hospital to
compare medical effects of induced abortion by suction and
curretage.
(3) $49,998 to I.M. Cushner of Johns Hopkins for clinical
testing of prostaglandins during first trimester.
(41 $107,148 to W.C. Oppel of Johns Hopkins U. for
behavioral study of "therapeutic abortions - with special
reference to teenagers." •
47
(51 GOALS AND CONDITIONS oR'OPULATION
CONTROL - An Nfh six year grant of $337,652 to
Kingsley Davis of the U. of California 1 1 69 - 1 0 741
When writing for this information, ask for HEW
Publication No. NIH 72-133. No Charge. Order from:
Center for Population Research, NIH, Dept. of HEW.
Bethesda. Md.
I PJOHN AND DEPO-PROVERA
Depo-Provera. a proven carcinogen in animals, not
approved by the FDA as a contraceptive, is patented by the
I'pjohn Company.
Country profiles, publication of Rockefeller's Population
Council. Feb. 1973 issue on Nigeria by David Lucas and
Gabisti Williams states that women attending Family
Planning Council clinics who do not want to have any more
children are encouraged to try the injectible steroid con-
traceptive (Depo Proveral. which is also now available.
(p.9l
Depo-Provera has also been used in Chilian studies at the
U. of Chile as well as clinical testing in the McCormick
Hospital. Chiang Mai, Thailand. Women in the rice fields
of Sarawak, Malaysia are Depo-Provera guinea pigs under
the guidance of Canadian Dr. Robert McClure of Toronto,
who also promotes sterilization. iSource: International
Planned Parenthood News, Oct. 1972 and Jan. 19731.
AID
AID's War on Hunger features abortifacient
research. The research activities of Suhanali Magan Karim
of Uganda were featured in the AID publication War on
Hunger. Vol. V No. 9, Sept. 1971.
Dr. Karim, a leader is prostaglandin-abortifacient
research stated that by 1975 use of such drugs would be
very common. "Prostaglandins are now readily synthesiaed
and as such will become available at a low cost - a few
pennies per use." He described it as an "after-the-fact"
approach. Dr. Karim sees abortion as a means of
population control as present religious and medical
restrictions change.
Dr. Karim's "research" takes place at Makerere
University in Kampala. Uganda. His "research" which
includes prostaglandin abortions past 13 weeks gestation is
financed by the American tax payer via an AID contract
(No. 931 1 75705401 for project period 6/7 1 - 6/74.
Ten clinic patients, five Caucasian and five Negro,
ages 15 to 27 years, and all in their second trimester of
pregnancy were aborted by the administration of Intra-
Amniotic Prostaglandin F2d with a 40% success rate
based on the 24 hour criterion.
The study was conducted by D.C Leslie, M.I), and
Leonard E. Laufe, M.D„ F.A.C.O.G. of the
Reproductive Counseling Institute, West Penn
Hospital in Pittsburgh and reported in the Dec. 19T2
issue of The Journal of Reproductive Medicine.
Side effects of the prostaglandin "therapy" in this
series included nausea, vomiting, diarrhea, flushing,
pyrexia, headache, bronchospasm. Nausea and
vomiting occurred in all patients with an average of 2
to 3 episodes per patient.
If the prcgnanl^termination did not occur within
24 hours, additional methods including uterine
evacuation and saline injections uere carried out.
Curettage was performed on all patients aborted
during the first 24 hours.
Of the ten patients "chosen" from the clinic
population, three were minors 1 17 or under!. The
report brings into focus the problem of using clinic
patients in general, and using minors in particular, for
abortifacient experimental research. The Coalition has
the matter under further investigation at both the state
and federal level.
OEO MAILING LISTS PROVIDED TO
POPULATION CONTROL AGENCY
Since May of 1971, the Office of Economic Op-
portunity IOEOI has provided over $100,000 to
Population Services, Inc. of Chapel Hill, N.C. for the
purpose of increasing use of condoms among sexually
active, young, unmarried low-income males in urban and
rural settings.
Population Services, Inc., directed by Dr. Timothy
Black of England, a postgraduate of the UNC Chapel Hill
Population Center, and Philip Harvey, former director for
CARE in India, has a tax-exempt status to qualify for
governmental "research funds", while its twin agency -
Population Planning Associates-serves as the retail firm
doing the buying and selling of birth control devices.
Using OEO "anti-poverty" funds. Population Services
directly contacted over 25,500 individuals between the
ages of l.t and 20. Local OEO Community Action
Agencies and commercial sources provided the
tnailintf lists.
The letters of the unsolicited mailings included such
questions as "Has one of your friends made a girl pregnant
recently?" and reassures the young male that condoms help
prevent babies as well as V.D. Also included in the mailings
is provision for obtaining a condom stamp coupon worth
$1.00 from a North Carolina outlet.
According to an informed source in Washington, D.C,
of the 25,000 young men contacted, 2,260 responded
favorably and were sent materials via unmarked envelopes
while 86 requested no further materials be sent. At no time
was parental consent solicited for minors.
The OEO grant to Population Services Inc. in 1971
totaled $61,905 while the 1972 grant totaled $47,066. The
latter OEO funds are intended to expand work among the
"target" populations" with emphasis placed on reaching
coaches and other supervisory "outreach" personnel.
Information gleaned from the "research" will be refined in
order to "establish a model which can be used elsewhere."
A proposed program ending in 1974 with the OEO carrying
the TOTAL costs for Population Services. Inc. - services
which will cost the American tax payer some $152,274!
Letters asking that OEO funds to Population Services,
Inc. be immediately impounded and calling for a
Congressional investigation of OEO "family planning"
programs in general may be directed to : Howard Phillips,
Office of Economic Opportunity, Dept. of HEW,
Washington, D.C. 20506, with carbons to your
Congressman and Senators, and to President Nixon.
48
PLANNED I'Wtl \lll(M>|^lll \\ Mil
Planned Parenthood Association, Chicago Area,
an affiliate of the Planned Parenthood Federation of
America. Inc. (PP-WPl, is a family planning-population
control training center with hoth national and international
programs funded by HEW and US-AID. at a cost to
taxpayers of hundreds of thousands of dollars annually.
Costs for non-Planned Parenthood or government
financed participants range from $12.00 to $15.00 per
person per training day.
This federally -funded enterprises's prototype training
program includes the following:
General Training - studies of the "Contraceptive
Movement" and the "Population Crisis" ...
Administration and Organization - Organizing,
developing, establishing, maintaining and evaluating
family planning programs ....
Medical - Methods of contraception, male and female
sterilization, and the training of para-medical personnel
including "counselors for abortion referral and for
standard clinics" as well as pregnancy testing and other
laboratory procedures....
Communications - Utilizing mass media for opinion
formation and the reinforcement process of the public
Male Education - male sexuality programs geared to
youth....
Research - Medical, biological and contraceptive research
in U.S. and abroad
Education - Developing community programs
"TRAINING FOR ABORTION COUNSELING AND
REFERRAL COUNSELING". AN OVERVIEW OF
THE LEGAL AND MORAL ASPECTS OF ABORTION
IN THE U.S. : removal of sexual inhibitions and barriers to
human sexual communications by "demythologizing"
sexual hangups....
( Training and Education Dept., PP-Chicago, 185 North
Wabash. Chicago, III., 606011
TEEN SCENE
"Teen Scene" is a special youth oriented program
operated by Planned Parenthood of Chicago. A substantial
portion of its funding comes through a grant from the Dept.
of HEW to the Illinois Family Planning Coordinating
Council.
Under HEW Grant No. O5-H-O03O1 173371, Teen
Scene received:
FY 1971 -$69,000 FY 1972 -$190,000
Teen Scene is located at 185 N. Wabash Av., home of
the Chicago P.P.
The objectives of Teen Scene as outlined in their
brochure "Straight Sex Talk for Teens" include:
1. To provide a non-judgmental atmosphere in which
teenagers may explore human sexuality through education
and dialogue.
2. To eliminate unwanted pregnancies by making effective
means of family planning, including contraception and
voluntary abortion, available to all.
3- ,. < Ibjectives also involve exploring attitudes, establishing
ongoing model programs, evaluation of programs and in-
service training programs.
Office of I'opul^Pfi Affairs in a letter dated Nov. 1, 1972,
HEW funded activities of "Teen Scene" include pregnancy
testing and contraceptive information to eligible
cnadidates. Pregnant teens are referred to a "Teen Scene"
social worker for discussion, but not counseling on abor-
tion. If a "Teen Scene" client wants abortion counseling
she is referred to CARES and no followup of such patients
is made by "Teen Scene", stated Dr. Shultz.
Now it just so hap/H'ns that the main CARES office
i Cooperative Abortion Referral and Evaluation' Ser-
vice! is located at the exact same address, I8.~> \.
If abash, as Teen Scene and Chicago P.P.!
Established in July. 1971, CARES operates a five-
state abortion referral service which shuttles (prior to Jan.
22. 19731 women from Illinois. Indiana. Michigan. Ohio
and Wisconsin to New York at a package deal rate of about
$145-$350. incl. transportation for a legal abortion.
In Teen Scene Handbook under the title. Pregnancy
Testing, individual counseling by TEEN SCENE
counselors DO IN FACT include making plans, for among
other things, "legal safe abortion referrals". Dr. Shultz's
comments not withstanding.
Furthermore, a pre-arranged phone call to Teen Scene
in the Spring of 1972 verified the fact that Teen Scene is
also involved directly in abortion arrangements. The caller,
an 18 year old boy contacted Teen Scene to arrange an
abortion for his 15 year old girl friend. He was told that the
must make his own plane reservation on a flight which
would be pin-pointed by Teen Scene and that he must bring
in a signed notarized statement of responsibility by a 21
year old (any 21 year old I. Teen Scene said they would
arrange for a limousine to meet the girl at the airport in
N.Y., take her directly to the clinic where the abortion
would be performed and she would then be transported
back to Chicago the same day.
In the meantime, while tax-payers fund the abortion-
fornication center of Planned Parenthood, Birthright of
Chicago suffers financial hardship and must compete with
HEW funding - YOUR funding.
Action Line - Write your federal legislators and ask
them to provide you with specific details on Teen Scene
including an audit for the period 1971-1972 outlining how
HEW funds were spent. Request that matching funds be
made available to Birthright Chicago. Ask if he or she
would initiate or support a Congressional investigation of
such programs as Teen Scene in which abortion is clearly
stated as a means of family planning.
USCL will provide all the necessary documentation.
Please include $2.50 to cover copying and postage. Ask for
Teen Scene Packet.
INVASION OF PRIVACY ISSUE
Two recent events involving, tiie, Dept. of Health,
Education and Welfare funded - "family planning"
programs, bring into sharp fopus the further erosion of
marital privacy by government agencies.
In P.P.'s publication. Family Planning Per-
spectives, Vol. 5, No. 1 Winter 1973, details are provided
on Tennessee's Statewide Data System for Family Planning
begun in 1970. The system consists of centralized computer
49
processing of individual patient m.^B I>;i>»mI on th<-
patient -oriented family planning data system developed in
Atlanta. In Tennessee, staff from all 95 local county health
departments have had to be taught the new data system, via
teach-in sessions.
Under this data system, both patient's name and a
unique ID number are recorded on the data form in order
to "evaluate continuity of care". In Tennessee, the
patients number is her Social Security number. When a
new patient doesn't have a S.S. number, the clinic staff is
instructed to apply for one and to give the patient a tem-
porary number. Data information includes: patient
identification, clinic identification, date of visit! s I
METHOD OF CONTRACEPTION, and information on
subsequent visit.
Under this data system, each patient's record folder is
filed at the local clinic. Patients missing appointments can
be easily tracked down for formal or "informal" visits by
home visiting teams under the computer's direction, and
guidance.
Collected data are utilized for a number of purposes
including "community education", and generation of life
tables as well providing data on "fertility rates and
illegitimacy rates, and designation future target groups."
"Since each patient is UNIQUELY identified no
matter in which clinic she has received services, and has an
up-to-date longitudinal history file of all visits to the family
planning din, it becomes a computer programming task to
extract the information in a format appropriate for life-
table calculations." (pp. 50-54).
The second incident involves a National Birth Survey
conducted by the Public Health Service of HEW with the
approval of local State Health departments.
Information from the survey is being collected on a sample
of approximately 7,400 mothers of live births who
represent the nearly 3.7 million women having deliveries
(luring I "72.
Each physician and each patient in the survey was sent
a questionnaire about the patient's recent pregnancy.
The survey cover letter to physicians includes the
name, address, date of delivery, name and sex of child
and a survey number, and assurance that all the material
given to the government will be kept "completely con-
fidential", and used for statistical purposes. Doctors failing
to fill out the form receive a followup letter from the
Division of Vital Statistics charged with carrying out the
survey. Neither the attending physician or the patient
require the consent of the other to reply to the survey.
National Birth Survey includes:
I. Information about this mother.. incl. number of live
births, abortions etc.
II. Prenatal and Postpartum Care of mother.. .incl.
number of pre-natal visits, nature of post-partum and
mother's CONTRACEPTIVE HISTORY including what
method used if any.
III. Name, Address, and phone number and date of
survey completion with any notes and comments, by
physician or patient.
Concerned tax-payers who ultimately fund these
programs may wish to bring these matters to the attention
ol their congressman and senators. The Coalition position is
that Congress shoiil^^fcce the necessary action to forbid the
use of Social Sectu^ry numbers as a means of patient
identification for medical treatment surveys and data
taking, and prohibit the federal government from soliciting
confidential information which violates the privacy of the
physician-patient relationship, and or other relationships
including that of parent and child.
Note: Medical World News. 4-13-73 in Big Brother \>
'Dr. Feelgood' notes that the ACLU. AMA, and Phar-
maceutical Manufactures Assoc, are protesting the new
N.Y. Controlled Substances Act requiring drug
prescriptions (containing name of patient, addresses etc.) in
be fed into programmed computers manned by the state
health department, as an invasion of patient-doctor privacy.
ROCKEFELLER FILM PACKET BATTLE RAGES
ON -
On March 22, 1973, members of the U.S. Coalition for
Life and allied pro-life groups were scheduled to meet with
Dr. Louis Hellman of the Office of Population Affairs, Mr.
John Fuller of the Office of Education and Dr. Walter
Bogan of the Office of Environmental Education to review
the "population packet" originally designed to accompany
the Rockefeller film, which was to be distributed by HEW
until pro-life popular pressure forced its withdrawal.
The packets containing student and teacher film
guides and other population teaching aides were prepared
by the Population Reference Bureau and its associates with
tax-funds from the Office of Education.
The meeting with HEW officials was cancelled,
however, when Dr. Hellman and John Fuller informed the
Coalition that the packets were not yet prepared for
evaluation, the final drafts having not as yet been com-
pleted. Coalition Director Randy Engel received assurances
that she would be contacted as soon as the drafts were
ready, prior to their printing for distribution. Casper
Weinberger was then informed of the cancellation as well as
the OE agreement with the Coalition.
Early in April, the Coalition was informed by a federal
employee in the family planning field that the 80 page
teaching guide, and also a student guide, had been on his
desk for some time, where upon the Coalition immediately
wired Weinberger asking for a meeting with him in the
presence of Dr. Hellman and other OE officials involved in
the controversy. Letters in support of the meeting with the
Secretary of HEW may be sent to directly to Casper
Weinberger. Office of the Secretary. Dept. of Hew.
Washington. D.C.
AMERICA WILL ROCK CHAIRS, NOT CRADLES
An HEW-funded grant to the Center for the Study of
Democratic Institutions for the purpose of analyzing
"long range social futures" for the Department of Health,
Education and Welfare utilization in planning for health
care delivery in the coming decades examines the social
implications of an ever-increasing aging population in the
United States.
The full report, co-authored by Center Senior Fellow
and project director Harvey Wheeler and R. J. Carlson was
50
completed in December, while a Ix^Hcngth publication is
scheduled for 1973. ^^
In their February, 1973, Center Report, a number of
capsule conclusions are listed under various sub-sitles.
Under the sub-title People: the Center stud) suggests
that in the coming decades few couples "ill have more than
two children and many will have none. ...that there will be a
drive for negative growth thai our youth base will
shrink.. ..that qualit \ of | >u I >l i< ■ sen ices will deteriorate if the
talents of growing numhers of elderly are not utilized
that family planning will mean planning for the elderly, not
children and that a significant portion of the
population may. at any given moment, be under the in-
fluence of mind-altering drugs
Under the sub-title, Medical: the ('enter studv
suggests that amniocentesis might facilitate effective
treatment of the genetically defective the appearance of
cloning and mood-altering drugs on the horizon a rise
of general physical and emotional disability due to
prolonged life spans of an aging population.
I hher information included under Politics and
Government, Culture and Ethics, Education and Places
highlights the problems of a nation who will be preoccupied
with rocking chairs rather than cradles in the 21st century.
A.I.I).
Population Report is a publication of the Population
Information Program of George Washington University
Medical Center, a new population control brainchild of the
I S. Agency for International Development.
Administrator for the program is P.T. Piotrow, Ph.D.,
Secretary of the Population Crisis Committee, policy
researcher for the Rockefeller Commission and editor of the
Victor- Bostrom Fund Report IV-B -F is the fund raising
arm of Planned Parenthood I.
Areas of new developments in family planning are
reported in a regular series of reports dealing with each of
the recognized birth control methods in the following
categories :
A. Steroidal contraceptives
B. Intrauterine devices
C. Sterilization, female
D. Sterilization, male
E. Rhythm
F. Pregnancy Termination
(i. Prostaglandins
H. Local Methods of Fertility Control
I. Experimental Methods of Fertility Control
Editor's Note - Prostaglandin "Therapy" has not
hen approved l>> the FD \. and is still classified as an
experimental procedure to induce abortions in various
stages of pregnane} .
Copies of Population Reports mav be obtained upon
request from Population Information Program. 201)1 S.
Street, N.W., Washington. DC 20009.
Federal (, overrent Mandates Complaince With HR-
1: Parental And States' Rights Usurped
The Clearinghouse Review is a publication of the
National Clearinghouse for Uegal Services funded by the
Office of Economic Opportunity, and Northwestern
University.
The November. 1472 issue of the Review contains an
article by attorney Alan Charles entitled "Enforcing Legal
Rights to Family Planning and Abortion" followed by a
Dei-.. I<)72 article "H.R.I: Changes in Family Planning
Requirements. Every pro-lifer should immediately obtain a
copy of these publications from the NCLS, Northwestern
School of Law. 710 N. Lake Shore Dr., Chicago, III.
606 1 1 . ">0c per copy. Also a copy of the Senate Committee
Report on the Social Security Amendments of 1072. S.
Rep. No. 92-30, 92nd Congress., 2d Sess. 11072).
With the Senate passage of H.R.I, Title IV, Aid to
Families With Dependent Children IAFDCI and Title
XIX, Medicaid programs have undergone significant
changes.
As clearly stated in the Senate Amendment Revision
Report, ALL states are required to make a particular effort
to provide family planning services to minors...."who have
never had children but who can be considered to be sexually
active". Requirements for parental consent are INVALID.
Services must be provided by states without regard to
marital status, age or parenthood. Furthermore, the poor
should receive Medicaid payments for abortion since to do
otherwise would descriminate against them, says attorney
Charles.
Federal matching funds for family planning
services are now available to states at the rate of 90%.
"In view of the stricter. ..more definitive requirements
in H.R.I, states should not be allowed to ignore and avoid
their statutory duty as they have been doing successfully for
the past five years, " says attorney J. B. Stern. If they do,
they will lose their federal funding. *
Federal C-O Amendment Nullified By Javits
Amendment
No sooner had Sen. Frank Church (D.Ida.) in-
troduced a conscientious objector amendment to the ex-
tension of the Public Health Service Act prohibiting
abortion, sterilization, coercion of medical facilities and
personnel than Sen. Jacob Javits (R.N.Y.) introduced a
second amendment which reads as follows:
"...Such hospitals or other health care institutions
(that is. one receiving Federal funds), shall not discriminate
in the employment, promotion, extension of staff or other
privileges or termination of employment of any physician or
other health care personnel on the basis of their personal
religious or moral convictions regarding abortion or
sterilization or their participation in such procedures." Hiis
amendment was approved along with the Church amend-
ment. Result: Nullification of Church amendment. (See
detailed debate on amendment in the Congressional Record
of March 22nd between Senator Pasture of R.I. and Javits
of N.Y.I.
51
Florence Criltenlon Aboritorium is pVKntly gearing up
for an estimated kill ratio of between 7200-9600 unborn
per year.
The new extermination service carried out in con-
junction with Pregnancy Counseling Service, Inc. will
augment existing services at the Crittenton Hastings House
in Brighton. Mass. thanks to a seed grant of $100,000 from
the Scaife Foundation of Pittsburgh, (T. Mellon and Sons).
All abortions will be carried out by licensed
gynecologists affiliated with six local hospitals, or under
their guidance. Clients whose pregnancy is greater than 12
weeks gestation or have medical contraindications
prohibiting out-patient precedures will be referred to one of
the local teaching hospitals.
According to the Pregnancy Counseling Service, two
operating rooms can handle a MINIMUM of 20 abortions
a day. five days a week. At a charge of $200 per procedure,
the gross annual income will be about $1,000,000 per year
(based on 5000 abortions).
"The development of this program could establish a
precedent in meeting the needs of the people, and serve as a
PROTOTYPE for other Florence Crittenton Leagues
around the nation for broadening their horizons." (em-
phasis added).
MARCH FOR LIFE OR DEATH?
A policy letter currently circulated by the National
Foundation-MARCH OF DIMES states that legal
abortions are outside the purview of the Foundation and
that "the decision to terminate or not terminate a
pregnancy is solely a parental decision."
"The National Foundation is not authorized to direct
that decision and further, we believe it should not be
directed by any individual scientist, physician, or coun-
selor the foundation shall not indulge in lobbying with
governmental bodies neither the foundation nor its
component chapters finances abortions or abortion
research."
Background — Abortion Symposium
On October 13-14, 1970, the Committee on Social
Issues of the American Society of Human Genetics
sponsored a Symposium, "Intrauterine Diagnosis and
Selective Abortion" at Indianapolis, Indiana. The
proceedings of the meeting were published in the March of
Dimes Foundation's Original Article Series, Vol. 7, No.
5. April 1971.
The use of fetal flesh and normal amniotic fluid
samples obtained from the products of pregnanoy ter-
mination to develop expertise in the cultivation of amniotic
fluid cells and for accurate assessment of human fetal data
was discussed by Michael M. Kaback, M.D. Researchers
involved in the X project include staff of the NIH (National
Institutes of Health I and the U.S. Public Health Service.
The United Cerebral Palsy Research and
Educational Foundation. Inc. of New York City
has already supported similar research using live
babies ■■ byproducts of abortion — in an attempt
to isolate attenuated rubella-vaccine virus from
human products of conception and uterine
cervix.
/IWi
. . . .According l^kwn abstract which appeared in
the May 18, 1972 New England Journal of
Medicine, 35 women, certified for legal abortion,
were vaccinated with the live rubella virus and
subsequently aborted by hysterotomy 13) and
curettage 151.
.... "After repeated washings with balanced salt
solution these SURGICAL. SPECIMENS (em-
l>hasis added) were homogenized in a ten-broeck
tissue grinder.. .tissue suspensions were similarly
prepared from placental and fetal specimens and
from segments of extra-embryonic membrane.
Most of the samples, obtained by hysterotomy,
were delivered to the laboratory still surrounded
by intact membranes. Repeated washings with
balanced salt solutions were performed before
and after dissection," the report stated.
Dr. Henry Nadler, in Indications for Am-
niocentesis, stated that the physician undertaking am-
niocentesis to detect a genetic disorder prenatally must be
committed to providing "therapy" if the results indicate an
abnormality and the parents wish termination of the
pregnancy. This committment would include abortion
referral if the obstetrician was not performing the abortion.
Similarly, Dr. Orlando J. Miller, in Discussion of
Symposium Papers, greets with excitement the possibility
of detecting and diagnosing serious untreatable, genetic
disorders, aborting these fetuses, and thus preventing the
birth of many individuals who would have been doomed to
severe mental retardation or other mental or physical
disorders.
Another article listed in the Original Article Series is
the Psychosocial Aspects of Selective Abortion by Dr.
E. Lieberman, who insists that abortion be a matter bet-
ween a woman and her physician. Dr. Lieberman is author
of "Informed Consent for Parenthood", in which he states
that until our society does a good deal more to aid the
handicapped children "it is too much to ask women to carry
their pregnancies to term unmindful of possible or probable
fetal damage."
"In the meantime, the prevention of unwanted
pregnancy, including abortion when necessary, is more
than mere prevention. It is an enhancement of life, and it
supports the right of every child to be reared by someone
who cares."
Additional articles in the Series make reference to the
identification of genetically defective children and "their
selective abortion", the difficulties of aborting women in
the second trimester of pregnancy and public health im-
plications if intrauterine diagnosis and selective abortion.
The U.S. Coalition is not only concerned about the
anti-life company the National Foundation is keeping, but
also the awarding of grants to pro-abortion physicians.
For example, the 1973 directory of the foundation
includes a $25,474.00 research grant to Charles J. Epstein,
M.D. of the U. of California, San Francisco.
According to Mary Livacich. Chairman. Right to Life
of Tulare County. Dr. Epstein has stated for publication
that he will not go through with an amniocentesis test
unless he has a verbal commitment from the mother that
52
she will go through with an atmion if he so advises.
<Tim,<s-Delta. 1-20-73. RA)
A large number of foundation grants have been
awarded to researchers at Columbia University, New York
City. In his book. Brave Mew Baby, author David Rorvik
quotes Columbia's Dr. Karles Adamsons, a pioneering
fetologist. who invariably attempts to get the mother to opt
fur an abortion where pre-natal testing shows a mother is
carrying a seriously defective child.
"If necessary," he says," he says, "we will take the
mother to visit groups of incompetents (mongoloids and
other retarded or deformed children I to help her realize
what will happen if she insists on going through with the
pregnancy." (p. 681.
The directory (available from The National Foun-
dation, Box 2000, White plains, N.Y. 106021 also lists
Francis H. C. Krick, Ph. D. as a Nonresident fellow of the
Salk Institute, supported by foundation funds.
This Nobel Prize physicist and molecular biologist has
suggested, among other things, a license for parenthood and
germinal choice whereby women are artifically inseminated
with prize male stud service semen.
Krick, along with Dr. Linus Pauling, a foundation
grant recepient and other eugenic zealots support a national
genetic registry'. In Brave New Baby Pauling suggests
(only half in jest I. that people with defective genes have the
information tattooed on their foreheads.
POSITION
The March of Dimes credo is, 'Be good to your baby
before it is born.' The Coalition respectfully suggests to the
•.-owrningbody of the National Foundation that abortion is
the ultimate harm of an unborn child. Until such time as
the National Foundation reverses its growing anti-life
orientation in both word and deed, the Coalition joins with
other pro-life groups in stating that it deserves no public
support, financial or otherwise.
Abortion ■ Population Control - Eugenics
"Fertility Control Through Abortion" Carl Djerassi,
Bulletin of the Atomic Scientists, Jan. 1972, pp. 0-12,
41-45.
"Can Man Control His Biological Evolution? A
Symposium on Genetic Engineering - Probabilities and
Practicalities". Carl Djerassi, Bulletin of the Atomic
Scientists. Dec. 1972. pp. 25-28.
Dr. Carl Djerassi is Professor of Chemistry at
Stamford University and president of Syntex Research,
manufacturer of synthetic hormones for fertility control
drugs, and publisher of the now-defunct, vomitous Family
Planner newsletter.
Population control involves not only limiting the
quantity of human stock but also regulating the quality of
human stock, hence the inborn interest of eugenic zealots in
the population control field.
Djerassi thus sees abortion, via abortifacient drugs and
devices! as not only being "one of the most effective
methods of fertility control in countries - or in certain
population sectors within a given country" be they
developing or highly advanced countries, but as also being
an intimate link in genetic engineering.
Back isstn^Rf this publication may be obtained from
Bulletin of the Scientists, 1020-24 E. 58th St., Chicago.
111. 60637. $1.00 per copy. The Dec. Symposium issue also
contains some very fine comments by Dr. Paul Ramsey and
Dr. Paul A. Freund.
Role of Planned Parenthood-World Population in
Abortion
George Langmyhr, Medical Director, PP-WP, N.Y. in
a candid discussion of the history of this anti-life agency in
abortion, taken from the book Planned Parenthood-
World Population and reprinted in Clin. Obstet. Gynec.
14:1190-6. Dec. 71.
Dr. Langmyhr addresses himself first to P.P. as a
public service agency which should not be involved in
abortion and secondly P.P.'s role in abortion reform
legislation.
"I think it is fair to say that most professionals and
volunteers associated with Planned Parenthood have ac-
cepted, for a long time, the necessity of abortion as an
integral part of any complete or total family planning
program. The dilemma of a women who has a legitimate
method failure, or any type of unwated pregnancy, cannot
be avoided by Planned Parenthood personnel..."
With regard to P.P.'s non-profit, tax-exempt agency
status, Dr. Langmyhr explains that while P.P. is
specifically unable to overtly lobby, "many dedicated
volunteers and professionals from Planned Parenthood
Affiliates" work with other concerned citizens and reform
groups. He mentions Dr. Alan Guttmacher's "outspoken
advocacy of abortion law change" and P.P.'s legal staff role
in preparing abortion briefs.
In his outline of P.P.'s early role in abortion, activities
which were "necessarily unpublicized". Dr. Langmyhr
states his agency's involvement in abortion information,
counseling, and referral prior to the 1960's, and following
the "advent of abortion reform movements" P.P.'s role in
pregnancy detection, "clergy counseling ", and the opening
of P.P.'s own aboritorium units in N.Y.C. and Syracuse,
and national abortion hotlines.
Detailed descriptions of P.P.'s activities in California.
Colorado, and N.Y.C. including the role played by private
foundations, is highlighted in this anti-life expose - must
reading for every pro-life advocate. (See also. The Death
Peddlers, Paul Marx, O.S.B., Ph.D., St. John's University
Press, Collegeville, Minn. pp. 34-37. $.95.1
Planned Parenthood and the Educators
Planned Parenthood of Pittsburgh, which recently
supplied an executive director for the Women's Services.
Inc. abortitorium which swung into action in the city
during Holy Week, is conducting a nine-week course in
"sexuality" for city public school teachers who receive $ 1 50
from P.P. (Scaife Foundation grant I and one increment
credit leading to a higher salary from the Pittsburgh Board
of Education-
Women Concerned for the Unborn Child will soon
submit a pro-life parallel in-service program to the Pitt-
sburgh Board of Education.
7
53
ASA Finances
The Association for the Study of Abortion*s
President's Report by Robert E. Hall, M.D., January,
1973 featured an assessment of its 1972 program and
hailed the U.S. Supreme Court decision of 22 January,
1973 as a decision sought by ASA since its foundation in
1964 - "virtually our organizational raison d'etre."
Original founders of the ASA who contributed $5,000
or more to the agency's annual budget included the
Chichester DuPont Foundation, the Hopkins Charitable
Fund. Stewart R. Mott. the Population Council, John D.
Rockefeller 3rd. the Rockefeller brothers, the Rockefeller
Foundation and Mrs. Cordelia Scaife May. ASA current
officers include Joseph Fletcher, S.T.D., Alan F. Gutt-
macher, M.D., Christopher Tietze, M.D. and Allan C.
Bames, M.D.
Activities of the ASA in 1972 included newsletter, film
and reprint services as well as:
ASA granted $1,000 to a Pennsylvania group to
produce an educational brochure dealing with the position
of Roman Catholics who oppose the stand of their church
on the abortion question ....
ASA funded an opinion survey in Pennsylvania, the
results of which were used by the Governor's Abortion
Stud) Commission to bolster the Governor's decision to
veto a pro-life bill
ASA contributed $12,000 toward Wisconsin's
abortion law test case, and assisted in the preparation of the
Texas and Georgia briefs and in the filing and preparation
of amicus briefs in these two cases
ASA cooperated with Citizens Committee on
Population Growth and the American Future, ASA was
responsible for a pro-abortion obstetrical statement in the
American Journal of Obstetrics and Gynecology,
signed by 100 professors of obstetrics
Abortion Techniques and Services, a book based on an
abortion conference sponsored in part by the ASA and
published by Excerpta Medica, Netherlands, Ed., S.
Lewit. contains a number of discussions on various aspects
of the abortion business, Ipp. 203-51 which will be of in-
terest to pro-life readers.
LawTence Lader IN ARAL, N.Y. I is despondent over
the high price of killing, while ASA President Robert Hall,
suggests an abortion backlog could be handled if only the
20,000 obstetricians in the United States would perform
only two abortions each per week. ..one million per year. As
to the problem of what to do about hostile hospital abortion
personnel, Dr. Hall reassures the conference attendees that
it need not take long to weed out the "bad" assistants and
cultivate the "good" ones.
Dr. Bernard Nathanson of Women's Services, N.Y.,
the oldest and largest of New York's abortion clinics, states
that his agency used a large core of paraprofessional women
who are neither nurses nor have they medical training of
any kind. The two simple standards for their selection are
that they be over 23 years of age and have had an abortion
in the past. Dr. Nathanson said the experiment should be
copied in every abortion clinic in the Nation.
3
n mTni
YWCA on Abortion Trandwagon - In an Associate Press
feature on the "changing image" of the Y, staff writer
Lynne Olson notes that the YWCA in recent years has been
joining in legal suits based on the principle of the "woman's
right to choose."
Hence, the Loop YWCA in Chicago offers counseling
on legal matters, abortion and rape a student Y in
Seattle sponsors a Gay l?l Women's Resource Cen-
ter provides an extensive information service for women
on everything from abortions to schools and job hun-
ting
Dr. Clair Fulcher, of the National YWCA Resource
Center on Women in N.Y. concludes the article with
comments on the growth of 'Woman Power'. It is tragic
that such power will serve Death rather than Life.
PTA and Abortion - The N.Y.S., Parent-Teachers
Association Congress, meeting in Nov., 1972 passed a
resolution supporting "family planning" and "population
control" information dissemination on a voluntary basis
and supporting "the concept of legal abortion where desired
and requested." The resolution according to the Delanson
Right to Live Committee was not based on membership
vote, but on delegate vote following discussion. (For a
glimpse at the large family grand-slam read the statement
of the National Education Association in the Senate
Subcommittee on Public Health and Welfare hearings on
the 1970 Family Planning Act. (USCL reprint No. 125 -
30cl
Suicide Clinics Proposed - The Rev. Warren Briggs,
pastor of the Chapel of the Valley Church suggested, at a 3-
day suicide conference held in San Diego, California under
the auspices of the San Diego County mental health service,
a proposal for the establishment of suicide clinics.
The suicide clinics, an extension of "mercy-killing"
centers, would "provide a painless, dignified exit for its
clients to persons whose physical life has no meaning or
value to himself or society," he said. (USCL Reprint No.
127 - 20c)
Euthanasia Linked to Abortion
Euthanasia INews, the quarterly publication of the
Good Death Fellowship 1853 Ogden St. No. 5, Denver,
Dolo. 802181, Winter 1973 issue, hailed the Abortion
Supreme Court Decision with "new cheer".
"...it becomes more and more clear that in intimate
health matters, the right to decide what to do-or not to do-
rests with the patient and her doctor, not with "society" or
some hospital's rules and regulations, the article concludes.
(Ed. comment - Medical personnel and facilities seeking
CO status for abortion and sterilization may want to add
euthanasia as well as infanticide to their growing anti-life
listings.)
Just One More Pill - An early issue of the Euthanasia
News containing a recipe for a good death states that
"Several major industries are poised and ready to make
available not merely "another pill", but a wide and colorful
range of products and methods to meet the needs of those
54
who have alread) lived their lives^Bare about ready for a
good death." (Comments made by Henry W. Hough, a
Unitarian Minister and editor of the Euthanasia Newsl.
Ford Funds Rockefeller
The Ford Foundation has awarded a three year grant
of $1.5 million to John D. Rockefeller 3rd's Population
Council for the formation of the I nternal ional Committee
for Contraceptive Research designed to identify and
explore promising compounds and devices including
chemical-releasing vaginal rings and copper-wire-wound
intra-uterine devices. US. federal funds are expected to
cover a most costly second phase of clinical trials of "new
contraceptives". Project director of the ICCR is Sheldon
Segal of the Population Council. 245 Park Ave., NY
10017. lexerpts from Ford Foundation Letter. 7-15-71).
Note: In 1969, AID awarded a $3 million dollar
contract to Dr. Segal for anti-progestational contraceptive
development. Project period 6/69 - 6/73.
Organized Religion and Healthy Sexuality a detailed
account of what clergy can do in their localities, is the
monthly feature in The Institute for Family Research and
Education's publication. Say It So It Makes Sense I Winter
- 19731, a newsletter for professionals devoted to com-
municating with youth.
The Institute, 1760 Ostrom Ave., Syracuse, N.Y.
132101 is directed by Sol Gordon, who distinguished
himself as a researcher for the Rockefeller Population
Commission by proposing that contraceptive, sterilization,
and abortion services be made available to adolescents with
or without parental consent, and as the author of comic
Imoks on birth control, abortion, masturbation and other
sexuality-oriented activities.
Members of the clergy, the Institute report suggests,
can take initiatives in several areas including parent-child
sex-education, sexual teen rap-sessions, referral services for
\ .!>.. birth control, abortion, adoption ect. ; a "well-limed,
well-planned, campaign for some sex information in the
school"; and a thorough study of the Rockefeller Com-
mission Report on Population Growth.
The Institute is part of Syracuse University's College
for Human Development programs to "improve the quality
of life". The College for Human Development will conduct
a workshop on teenage sexuality. July 2-July I 3. as part of
Syracuse I niversity's summer program. Details may be
obtained by contacting Mrs. Alison Deming at the In-
stitute.
Foreign News
Brazil Pro-Life Forces Score Victory for Life
Under the leadership of the Brazilian Society for the
Defense of Tradition. Family and Property ITFPI,
attempts to alter the Penal Code to legalize permissive
abortion were defeated last year.
In a 23 page brief prepared by the TFP Medical
Commission for Professor Alfredo Buzaid, Minister of
State of Justice, President of the National Council, Plinio
Gorrea Oliveira declared that the fundamental right of the
human person to life is valid for "the life yet inside the
mother - womb or for the one alreadv born".
The sour^^^f pro-life opposition according to the
report comes from the Gynecologic and Obstetric Society of
Rio de Janeiro with the open support of the Maternity
Institute (sic! I of the Medical and Surgical School of Rio
de Janeiro and the Maternity Infirmary of Rio's Charity
Hospital, all of which are accused of using the mass media
and influential speciality publications to make people
believe that this is what the majority of gynecologists and
the medical class in general want.
Some of the arguments put forth by the abortion
advocates include, the unborn is a mere part of the mother's
tissue abortion will liberate women .... the theory of
retarded animation the unborn is an unjust agressor
abortion is a lesser c\il science, not the Church.
has the last say in matters of operatory intervention and so
forth. This list proves, among other things, that pro-life
forces throughout the world are fighting a common enemy,
and therefore should be seeking international links with
each other a long range U.S. Coalition goal.
Of special interest is the Brazilian medical attack on
the IUD. described as "cry pto-abortive" device.
Die TFP brief is available at a cost of $3.00. A
summary of the contents of the brief is also available from
the USCL for $.80. The TFP representative in the U.S. is
the Crusade for a Christian Civilization. 303 West 42nd
St.. N.Y. 10036.
India Kycs New FIVF) ^ FOAR Plan for Population
Control
Vocording to a Nov. 1972 New Delhi wire service
release. India's future population control schemes may
include the "right" of an Indian woman to have an abortion
or be sterilized without a husband's consent and com-
pulsory sterilization of the mentally, physically, or
emotionally unfit.
Tara Ali Baig. an Indian Sangerite who has been
chosen by India's government to serve on the Task Force
on Family Planning for the Fifth Plan which liegins in
1974 claim., that such action would insure the right of
children not to be born of irresponsible parents.
Since the American tax-payer is one of the prime
sources of funds for India's "family planning" package
deals which promote everything from colored condoms to
aborlifacient lUDs to operating units for "family plan-
ning" procedures (incl. sterilization and abortions), the
question arises as to whether or not the U.S. Government
will permit tax funds to be used in programs of a com-
pulsory nature.
Thus far, the Agency for International Development
has refused to answer this query for the Coalition as well as
other questions relating to CO-ahnrtinn status in foreign
nations whose population control programs are financed by
the U.S. or the United Nations Fund for Population Ac-
tivities in which AID is the biggest "stockholder".
Action : Please contact your federal legislators and ask
their opinions on the use of tax-dollars abroad to fund
abortions, abortifacient research, mass sterilization
campaigns, and programs of COMPULSORY
POPULATION CONTROL as envisioned by India.
(For information on India's abortion program see Jan.
1973 issue of USCL Newsletter)
9
55
World Population Brief;. ^P
West Germany in Absolute Population Decline - In
1972. West Germany [juried more people than were born, a
birth deficit of about 30.000. (N.Y. Times 1-28-73 p.4).
Hungary in Period of Kapid Aging - An ever in-
creasing shrinking youth base coupled with increasing
pensioners is worrying Hungarian economists in a nation
where 1 7 per cent of the population is over the age of 60.
(Journal of AMA. Vol. 2 1 5. No. 4, p. 6501.
Israel Concerned about Arab Fertility - There is an
Ongoing birthrate battle between Jews and Arabs and the
Ar;il>~ are clearly winning, and increasing their proportion
of Israel's population. One of the factors keeping down the
Jewish birthrate is said to be induced abortions which are
illegal in Israel except to preserve "the woman's health".
IL.A. Times. 12/61*721.
M.i
Media
Population Control Ads - The Atlantic-Richfield
Company ran a full-page colored ad in WORLD, 3-27-73
Describing the critical problems presented by over-
population and population imbalance.
"Nations must work together while there is still time.
One-lions must be asked: solutions must be found.
Medical World News Ad featuring a LIFE photo of an
unborn child, just over 5 V: weeks old was run by the Syntex
Laboratories, manufactures of NORINYL, low dosage
birth control pills. Mode of action stated as "The primary
mechanism of action of the oral contraceptive is
gonadotrophin suppression. It is pointed out however that
the high efficacy of oral contraceptives may not be entirely
due to suppression of ovulation but may result from other
mechanisms such as change in cervical mucus and en-
dometrium." This statement supports Dr. Alan Gutt-
macher's claim that the combined-therapy endometrium
undergoes such drastic changes from a normal premen-
strual endometrium that it is doubtful it could support
implantation of a fertilized egg.
Another Syntex ad for NOR-Q.D. states as mode of
action: "NOR-Q.D. has a progestational effect on the
endometrium. The exact mechanism, of how it prevents
conception is not known at the present time "
WNBC-TV 4 Finances Population Attitude Study -
During the month of June, 1972, designated as
POPULATION MONTH, WNBC-TV prepared 50
programs on population which were run by NBC stations
throughout the U.S.
In conjunction with the programming, NBC com-
missioned an attitudinal study conducted by the Home
Testing Institute, Manhasset, N.Y. using the Random
Digit Dialing method.
Some of the questions used in the survey relate to
choice of family size, abortion, sterilization, unwanted
pregnancies, adoption, contraceptives to minors and
domestic population growth.
10
For a copy of the ^Bage study -results write:
George A. Hopper. Director, Marketing Services, NBC,
Inc.. 30
Rockefeller Plaza. N.Y., N.Y. 10020.
Environmental News Service - Operating under a grant
from the Rockefeller Foundation, the Scientists' Institute
for Public Information. 30 E. 68th St., N.Y. 10021 is
developing as "environmental press service under the
direction of Terri Aaronson.
Ingenue magazine - A pre-teen publication for young girls,
featured in its April 1973 issue, an article on sexual per-
version, specifically a do-it-yourself step-by-step description
of achieving oral sex orgasm. The Coalition has notified the
publishers iThe News Ingenue, 635 Madison Ave., N.Y.I
10022 of the magazine that we will conduct a national
boycott of their publication in libraries, schools and other
pre-teen facilities across the nation. We ask your co-
operation in contacting local schools, etc. asking that the
April issue be removed from the shelf and that the sub-
scription be withdrawn immediately.
Population Control Ad
r'arly this year, the Wall Street Journal ran an ad
designed to attract a corporation sponsor for a film titled
"Sorry No Vacancy".
This "completed one hour television documentary",
narrated by Rod Serling features Dr. Paul Ehrlich, Rev.
Rodney Shaw. Sen. R. Packwood, and other advocates of
population control.
According to the Wilhite Productions ad, "Spon-
sorship of this film will INSURE national prime time
television release.
An resume of the film may be obtained from Wilhite
Productions. 3742 Seahom Drive, Malibu, Ca. 90265.
Planned Parenthood and the Pause that Refreshes -
The Family Planning Federation of Canada (IPPII has
just completed a $400,000 bid for a pregnancy pause. The
campaign includes massive circulation of newspaper ads,
radio spots and transit cards. Said Brian Strehler, FPFC
director, "When we begin to use abortion as a means of
birth control we're in trouble." One of the slogans aimed at
the young is ..."If you're old enough to get pregnant, you're
old enough to know how not to".
For the Record - Subject : Abortion prohibition amend-
ment to S.2108. the Family Planning Act of 1970. Memo
from American Law Division:
The question of abortion never came to a vote as an
amendment on either floor of Congress. The house version
of the bill IH.R. 193181, however, did contain a provision
forbidding the use of funds appropriated under the act for
programs using abortion as a means of family planning.
This provision eventually became part of the law IP.L.91-
5721 which was approved by the House on Dec. 8. 1970
voice vote, and by the Senate on Dec. 10, 1970 by voice
vote.
Subject: The Hugh Moore Fund. In November, 1972,
the grand-daddy of the population control movement.
56
Foreign News continued ^^
Hugh Moore, died. The Morning Call 3-10-73 of
Allentown, Pa. noted that Moore helped fund both the
Population Institute and its offshoot, the Population
Communication Center. In 1971 he liquidated the Hugh
Moore Fund in order to aid organizations which he helped
establish. For an indepth look at these agencies read
Breeding Ourselves to Death by Lawrence Lader,
available from ZPG. Palo Alto, California. $4.95.
For the Record
Subject: Medical treatment of minors without
parental consent. The American Academy of Pediatrics
Committee on Youth have proposed a model law giving
physicians the right to treat minors without parental
consent in such areas as treatment for pregnancy, v.d., and
drug abuse and without fear of legal liability. (Medical
World News 3-23-73.1
Pro-Life Obstetricians and Gynecologists
currently in formation will meet in Miami Beach, Fla.
Monday, May 21st during the annual American
College of Ob.Gyns. For further details contact:
Matthew Bulfin. M.D.. 4701 North Federal High-
way, Ft. Lauderdale. Fla. 33342.
Marriage and Family Life Education Workshop,
Director. Paul Marx. O.S.B., Ph.D.. June 3-June 16,
1973 St. John's University. Collegeville. Minn.
56321. Write for information on accomodations,
credits etc.
Special note: Wednesday-June 6 Topics - Abortion
and Euthanasia
Thursday -June 7 Topics - Youth Pro-
Life Movement and
Monday -June 11 Natural Family
Planning
"The Population Question-Limited Government
or Limited People?" James A. Weber, The
Freeman, Oct. 72. A fine resource article available
from Jim Weber. 6314 N. Drake, Chicago. III. 60659
25c each.
Citizens For Constructive Kiluration. Box 25704,
Seattle. Washington 98 1 25. Citizens I nited for
Responsible Education, Box 9864. Chevy Chase,
Md. 20015 The above parents' rights groups in the
Held of education are among the finest of their kind.
I documented and a valuable source of pro-life in-
formation. For details and sample CCEX AND
CURE packets send $1.00 to cover printing and
postage. Areas covered include sex education, secular
humanism, child development etc..
MEETINGS — PI BI.ICATIONS — NEW SLETTERS
American Psychiatric Association. May 7-11, Honolulu.
Topics to be covered include studies of pregnancy. al>or-
tion. suicide, and homosexuality.
The Human H^P Amendment. Charles E. Rice. Available
from Professor Rice. Box 104. Notre Dame, Indiana
46556; 4 for $1 and special bulk rate. This pamphlet gives
an excellent summary of the Human Life Amendment. For
further details also write HLA Committee, 15 E. St., NW,
Washington, D.C. 20001.
"Abortion-The Role of Private Foundations".
Clinical Obstetrics and Gynecology, No. 4, December.
1971, Pgs. 1181-1189. Article by Donald H. Minkler,
Ml) \1PH.
Animals and their Legal Rights. Emily Stewart
Leavitt available from the Animal Welfare Institute. Box
3492. Grand Central Station. N.Y. NY. 10017 $1.00 per
copy.
Euthanasia
"Licensed to Kill" and other assorted articles and
clippings on euthanasia are available from England's
Human Rights Society. 27 Walpole Street, London SW3.
England. Director of HRS is Mr. Bill Cooper. $1.00 per
packet to cover printing and postal charges.
"Abortion for the Asking", Helen Dudar, Saturday
Review, SOCIETY issue, April, 1973. (An arithmetical
and practical application article with a selection of in-
terviews by abortion clients. Of special note is Miss
Dunbar's comments on Catholics undergoing abortions.
She states "In this ear of radicalized and politicized clergy,
it is no longer even surprising when a woman shows up at a
clinic with the blessing of her priest." She then refers to a
Catholic patient at Parkmed aboritorium, in N.Y. who
brought in holy water from her priest, was aborted by
suction aspirator, and then had 'the tissue' blessed by a
Jewish social worker since she was unconscious during the
operation, (p. 321
When Should Abortion Be Legal, Hariet F. Pilpel and
Kenneth P. Norwick, A Public Affairs Pamphlet No. 429.
May be ordered from PAP, 381 Park Ave. South, New
York 10016, 25c each. (PAP publications are frequently
used in schools to supplement text book educational
materials. The conclusions reached oy Pilpel of P.P. and
Norwick sum up the bias of the presentation.. "Eventually,
all proponents of reform I abortion I are confident, the
presently restrictive abortion laws will be either revised or
repealed entirely. The only question, they say, is how long it
will take before it happens." Oct. 1970
Demography, publication of the Population Association of
America, Box 14182. Benjamin Franklin Station,
Washington. D.C. 20044. Issued on a quarterly oasis to
members of the PAA. this population journal is a valuable
asset to pro-life students and researchers in the
demographic field despite pro-abortion bias of PAA leaders
and many of the contributors to the publication. PAA
membership is $20.00 per year. For further details contact
the PAA at its D.C. office.
Abortion Research Notes published by the International
Reference Center for Abortion Research of the Tran-
snational Family Research Institute. 8555 10th St., Silver
Springs. Md.. 20910. Sample copies available on request
11
57
Kmko Newsletter, published by Krnkn^Rrin;il Foam Co.,
7912 Manchester Ave., St. Louis, Mo. 63143. Available
free. Editor, Elizabeth Canfield.
As the Stomach Turns
anti-life quotes
an assorted selection of
"...when a Supreme Court decision in March 1971 ex-
panded the grounds for legal termination of pregnancy in
Washington, D.C., requests at the Planned Parenthood
Association of Metropolitan Washington for pregnancy
detection increased at such a rate that a social worker was
required to devote at least half her time to the problem of
pregnancy counseling and abortion referral" from
"Pregnancy Detection: A Critical Service Link", by
Katherine B. Oettinger (First Deputy Assistant Secretary
for Population and Family Planning of HEW I in Family
Planning Perspectives, Vol. 3, No. 4 Oct. 1971.
" Anything we do to fortify the stench-to increase the
population-is a disservice both to Europe and to ourselves.
Stabilization and eventual reduction in population in
Europe would be one of the longest steps that could be
made toward world peace and well being " from Road
to Survival by William Vogt, former president of Planned
Parenthood. 1948.
"Where the dogmatists read black, the world today
reads white.. .what they consider "morality", we consider
moral imbecility. ..Our morality is not a morality concerned
with melodramatic rewards and punishments, with ab-
solute rights and wTongs. with unhealthy lingering interests
in virginity and chasity." Margaret Sanger quoted in The
Catholic Church vs Planned Parenthood" by Rev. G. A.
Kelly. The Sign. 1964.
" The methods Iq^nirh population growth was curbed
in other cultures and other times were drastic - abortion,
infanticide, starvation and other forms of early death. No
one wants to return to these methods." Quote taken from a
Planned Parenthood reprint from Cosmopolitan
Magazine, Mr. 1965 entitled "What The Planned
Parenthood People Are Up To" by Glenn White.
" To those of us in the mental health field, there is no
doubt that the child development center, with its emphasis
on the early and crucial years in the emotional and
educational maturation of the child, is an ideal whose time
has finally come," Quote by Mike Gorman, a U.S. mental
health official in address to the Church and Society In-
stitute of Pittsburgh, Feb. 21, 1973. ( Editor's comment - I
think we call such centers "home!")
" Non-feminist private (abortion) referral agencies
operate for a profit. Anything that cuts profit is curtailed
with the result that counseling and followup are
inadequate:. ...these fees go into some man's pocket....."
from The Monthly Extract, An Irregular Periodical, Box
3488 Ridgeway Station, Stamford, Conn. 06905
" Whether the ideas we espouse at this meeting can be
freely offered to our people or whether they will remain
bottled up by a 'know-nothing society" depends on us
" Lest we part on an overly optimistic note, we should
remain aware of the increasing activity and perhaps power
of the radical right. The far right is made up of people of all
creeds, colors, and diverse economic and social
backgrounds " Louis M. Helhnan, Dept. of HEW,
Office of Population Affairs in a speech before the
American Association of Sex Educators and Counselors,
Washington, D.C. March 30, 1973. (Editor's comment:
Hellman's problem is not with 'know nothings' but with
Americans who know too much.)
U.S. Coalition for Life was created to serve as a national
and international clearing house for Pro-Life organizations
and individuals seeking information, documentation,
research materials in the areas of population control,
euthanasia, genetic engineering, abortion and related areas.
Its primary function is that of service.
The U.S.C.L. Reprint Service is designed to provide
documentation and resource materials for the Pro-Life
Movement. Costs include both copying and postage ex-
penses. All reprints are to be used as study copies only.
In the case of copyrighted materials, permission must be
obtained from the publisher or author directly, except for
brief quotes which may be used with proper credit. Portions
of Newsletter may be reproduced with proper credit.
Subscription Rate is $3.00 a year which includes both
the Newsletter and special USCL mailings relating to
current areas of controversy or Pro-Life Interest. Bulk
order rate to single address is $.25 each.
Editor - Randy Engel
Associate Editor - Barbara Rutkowski
Technical Editor -G.H. Fink
58
Vol. 2 No. 4
August, 1973
Randy Engel, Editor
Published by: U.S. Coalition for Life • Box 315, Export, Pa. 15632
USCL FEATURE
lUDs - ABORTIFACIENTS and the PRO LIFE MOVEMENT
"Scientifically, abortion methods are being investigated with greater intensity than ever before . . . Professor Hardin suggests
that in the future abortion may be considered preferable to contraception."
Scientific reports on the "morning after", the "week-later" or the "second thoughts" pill are multiplying. Eliminating a newly
implanted ovum by the use of a pharmaceutical product is, of course, abortion. However, the psychological reaction of the woman
aborting in such a manner cannot be compared to that of the woman undergoing surgical abortion . . ."
Editorial by Morris Fishbein, M.D.
Medical World News - May 8, 1970
". . . The idea of a morning-after pill has much to commend it, but with frequent coitus such a pill may well become a daily
pill. A more rational approach, perhaps is menstrual regulation, the drug being taken only at a certain time in the cycle. At present
a 'deimplantation' pill seems to offer most promise . . . Developments in prostaglandin analogues . . . suggest that this method of con-
traception is just around the corner."
Editorial, Lancet 11:314
August 12, 1972
"No formal action was taken on abortion but it was much discussed . . . The term 'menstrual regulation' was disapproved,
since it is a misnomer. Scientific studies have shown that 85% of women who undergo menstrual regulation are pregnant at the time.
The CMC (Central Medical Committee. IPPF) thought that the procedure should be termed early abortion, but realized that many
people would continue to prefer the name 'menstrual regulation' , a subterfuge in terms which enables them to avoid the self-realiza-
tion that they are probably pregnant . . ."
Comments on IPPF Meeting
Alan F. Guttmacher, M.D.
President's Letter 5/4/73
"All the measures which impair the viability of the zygote at any time between the instant of fertilization and the completion
of labor constitute, in the strict sense, procedures for inducing abortion."
Dept. of HEW, PHS publication
1066 Washington: 1963, p.27
EDITORS COMMENT:
Abortion by any other name is still .
Clearly, the advocates of abortion know that life begins
at conception/fertilization. They also agree that the fertility
control measures of the future will probably be abortifacient
in nature, even though they may be disguised by appropriate
euphemisms.
Today, much controversy centers upon the IUD and so-
called mini-pill. The question is whether or not, the primary
(and secondary) modes of action of these agents are contra-
conceptive or abortifacient.
However, while the question is asked, it is not at all
clear that some pro-life people wish to find the answer. Causes
for this ambiguity are numerous.
Some do not wish to get into the area of "contraception"
which is held to be an area of private concern between the
individual couple involved. Others are actively prescribing
and/or inserting the IUD or mini-pill, or actually wearing an
IUD or ingesting the mini-pill. In the latter case, the argu-
ments of "when in doubt, the doubt should be resolved in
favor of life" gives way to the argument that "we really don't
know that the IUD or mini-pill causes an abortion every time."
It has also been stated that the Pro- Life Movement should
support a constitutional amendment which would be appli-
cable to surgical abortion only and would sanctify early
abortion via drugs and devices. Acceptance of such a rationale
would be akin to admitting that there are various stages of
being dead - dead . . . deader . . . deadest.
The U.S. Coalition for Life believes that when in doubt,
the doubt should be resolved in favor of LIFE. We do not
believe, however, that this doubt is even applicable to the IUD or
so called mini-pills since there is ample scientific documenta-
59
tion that the primary mode of action of these agents and
devices is not contra-conception but abortifacient.
The Coalition has assembled in packet form a selection
of documentation and articles on the IUD as well as a smaller
sampling on the newer pills and techniques relating to early
abortion. The "IUD packet" is available directly from the
Coalition, Box 315, Export, Pa. 15632. Cost: $6.00 per packet.
Such documentation includes: The Department of
HEW's new Five Year Plan, (May 1973) which states:
"Recent study results support the hypotheses that the
IUD alters the uterine environment in such a manner that
blastocysts are destroyed or are not able to stay in the uterus
until an estrogen surge permits implantation . . ." p. 15.
And the Hilger's report. The Intrauterine Device: Con-
traceptive or Abortifacient? which concludes:
". . . it is evident that the IUD exerts its birth-preventa-
tive effects primarily through the destruction, at a uterine
level, of the pre-implantation blastocyst. In addition, it is
clear that the IUD in the small number of cases in which
implantation is allowed to occur in its presence, is a frequent
initiator of the abortive process and, as a result, well-
developed fetuses are aborted . . ."
FEDERAL GOVERNMENT
"Abortion — Compulsory Population Control"
Title X-Programs Relating to Population Growth of the
Foreign Assistance Act, the legislative vehicle by which the
Agency for International Development funnels out millions of
tax dollars into such agencies as the International Planned
Parenthood Federation, the Pathfinder Fund and the U.N.
Fund for Population Activities provides:
Sec. 291 (c) In carrying out programs authorized
in this title, the President shall establish reasonable
procedures to insure, whenever family planning assistance
from the United States is involved, that no individual will
be coerced to practice methods of family planning
inconsistent with his or her moral, philosophical, or
religious beliefs.
The abortion prohibition amendment does NOT apply
in the case of funding by AID under this act but only to the
Family Planning Act of 1970 as amended.
With increasing frequency, a number of AID recipient
nations are initiating population control programs containing
coercive elements.
In India, the government withdrew their advertisements
from a Catholic newspaper which refused to carry anti-life
materials sent to it for publication by government agencies.
In Palliport, last year, when Catholic officials refused
to permit the Indian government to open a local sterilization
"festival" to coincide with the Feast of Our Lady of Snows,
the area was declared to be "cholera infested" and the area
quarantined.
Under recent rulings by the Medical Council of India,
medical students will be REQUIRED to perform at least 10
sterilization operations under appropriate supervision in order
to receive their medical degree.
The Indian Ministry of Health has not supported a "con-
sciencious objection" clause for Catholic physicians working in
public hospitals and in at least one state, Tamil Nadu, public
officials have stated that Catholic physicians refusing to do
their share of abortions should leave government service.
Prominent Indian leaders are already calling for the "cum-
pulsory sterilization" of the mentally, physically and emotional-
ly unfit.
Likewise, in Singapore, the government has publicly
stated it will PENALIZE families refusing to participate birth
limitation, and declared 4th and 5th children born into a
family as an "anti-social" act. Henceforth, families with more
than 3 children will suffer in terms of housing priorities,
maternity benefits and increased taxation.
ACTION LINE
As of July 18, 1973 the House has passed the foreign
aid bill and the Senate Foreign Relations Committee sent to
the floor a similar bill for debate. It is expected that the two
bills will have to go to a conference in order to have the
differences reconciled.
The Coalition is moving to have an anti-abortion prohi-
bition rider attached onto the bill and an amendment which
would forbid the funding by AID of "family planning" pro-
grams which are coercive, in nature and thus violate both the
spirit and letter of the volunteerism class of Title X Sec. 291
(c). The issue of AID's funding of Los Supermachos should
be brought to the foreign relation committees of both houses.
By the time this issue reaches pro-life groups, sometime
in late August, the Coalition will have found a senatorial
sponsor to introduce such an amendment on the floor of the
Senate when the bill comes up for approval following the Labor
Day recess.
As soon as the amendment is given a number we will
inform pro-life groups immediately so that thev may inform
their senators on the issue.
'Medical Ghouls Continue Experimentation on Aborted Babies"
from Medical Intelligence. Vol. 288 No. 23 as printed in The
New England Journal of Medicine, June 7, 1973.
The paper, Transplacental Passage of Erythromycin and
Clindamycin was presented at the Twelfth Interscience Con-
ference on Antimicrobial Agents and Chemotherapy, Sept.
27, 1972, Atlantic City, N.J.
The primary purpose of the experiment was to test the
transplacental passage of certain antibiotics on pregnant
women and their unborn children.
The project was aided in part by the U.S. Public Health
Service, and one of the participants is a recipient of an NIH
career-development award.
There were 33 women, ages 15 to 43 years of age,
carrying children from 10 to 22 weeks of gestation. The
authors state that "informed consent" was obtained from
fourteen of the women although we would question the
degree to which a young girl 15 could issue such consent. The
majority of the women were aborted by hysterotomy while
60
eight were aborted via saline infusion. An additional number
served as a control group.
The paper states that following procedures, an assay
for antibiotic content was performed on the amniotic fluid
and various body organs including the liver and lungs as well
as brain, muscle, bone and blood. The authors however do not
indicate how such procedures were conducted given the fact
that a hysterotomy produces a live baby.
In Hemoglobin A Synthesis in the Developing Fetus,
The New England Journal of Medicine, July 12, 1973
authored by staff members from the Department of Pediatrics,
John Hopkins University School of Medicine, we read of a
similar experiment. The contract was supported by the National
Institutes of Health (NIH). Authors, Kazazian and Woodhead
acknowledge their gratitude to members of the Department of
Obstetrics, John Hopkins Hospital for assistance in obtaining
"fetal specimens".
Twenty-five of the aborted women were black, seven-
teen white. No mention is made of "informed consent" by
the pregnant women, all of whom were aborted by elective
hysterectomy or hysterotomy.
IMMEDIATELY AFTER DELIVERY, the peripheral
blood cells were taken from the live babies and whole
blood drained off from the babies who range in size from 3.5
to 20.0 cm from crown to rump, the youngest being 55 days
old.
The National Institute of Health is currently preparing
a set of "guidelines" on such experimentation by staff
scientists. A set of English "guidelines" are included in our
Fetal Packet (Price $5.00), along with documentation on
experiments on live aborted babies. EVERY pro-life group
should contact the NIH and request seating when public debate
opens this Fall.
"Federal Abortifacient — Population Control Funding"
An Inventory of Federal Population Research (FY 72)
including grants and contracts for abortifacient and popula-
tion control research is now available from the Center for
Population Research of the National Institute of Child Health
and Human Development, Bethesda, Maryland 20014. Ask
for - DHEW Publication No. (NIH) 73-133).*
In FY 1972, Federal agencies invested $61 million in
population research — research in which primates, mostly
humans, were used as "research subjects" in behavioral science
and basic biological fields.
The Federal agencies engaged in population research
included the Center for Population Research (HEW), AID, the
National Science Foundation, the Office of Economic Oppor-
tunity and the Department of Housing and Urban Development.
The Agency for International Development (AID) pro-
vided $2.7 million for a large program to develop "simplified
techniques of postconceptive fertility control." (p.5)
Center grants went to Rockefeller's Population Council,
Harvard University, the University of Wisconsin, the University
of Texas, and Vanderbilt University.
•Reference copies «
Included in the eight pages of grants and contracts for
abortifacient research, primarily in the area of prostaglandins
are the -
Worchester Foundation for Experimental Biology,
Shrewbury, Mass.
University of Michigan, Ann Arbor
University of West Indies, Kingston, Jamaica
John Hopkins University, Baltimore, Md.
Upjohn Company, Kalamazoo, Michigan
Population Council, N.Y., N.Y.
Two HEW-NIH contracts totaling more than $250,000
include the growth of human trophoblast cells in culture and
fertilization of human ova in vitro.
Catholics in particular may be interested in an HEW-
NIH grant of $13,629 to J. Mayone Sytcos of Cornell
University to study "DIOCESAN MOBILIZATION A-
GAINST ABORTION LAW REFORM" (p.98)
In the area of population education, a three-year HEW-
NIH grant of more than $50,000 went to R.H. Monge of the
University of Syracuse, Sol Gorden's stomping grounds. Pro-
ject title "Communicating Population Facts to Adolescents".
nlable at no charge.
"Hud Enters Family Planning Field"
"Children bring great joy . . . when they are wanted."
(Cover of HUD Familv Planning Packet!
Titled Family Planning, the United States Department of
Housing and Ubran Development series, is the product of an
18-month technical assistance effort involving 20 Model Cities
during 1970-71 (H-1306), now part of Community Develop-
ment.
The objects of the project, carried out under a HUD
contract with Westinghouse Learning Corporation, were "to
increase Model Cities capability in functional programming, to
increase the effectiveness of the operating agency, and to aid in
improving the Model Cities planning processes."
The HUD monograph contains four booklets:
I. The Concept II. Program Planning
III. Getting and Keeping Your Program Going
IV. Improving Your Existing Program
The series introduction (I) explains that the purpose of
these publications is to assist local decision makers as they
undertake family planning projects as part of a "local health
care system, and to provide public officials with the rationale
for the agency's legitimate involvement in family planning",
thus lending support for including a family planning component
in the city's Comprehensive Demonstration Program Plan.
The Model Cities receiving Family Planning Technical
Assistance under the HUD-Westinghouse contract were:
Akron, Ohio E. St. Louis, III. Portland, Oregon
Athens, Georgia Charlotte, N.C. Rochester, N.Y.
Bowling Green, Ky. Manchester, N.H. Rock Island, III.
Buffalo, N.Y. Newark, N.J. San Antonia, Tex.
Texarkana, Tex. Youngstown, O. Springfield, Mass.
Texarkana, Ark.
The basic components of the HUD family planning pro-
gram include a full range of services designed to "educate the
general public as well as patients" about the principles of family
61
planning. Delivery of such services can be made through (1)
clinics such as Planned Parenthood affiliates (2) hospital post-
partum programs (3) private physicians and others (ex. Mobile
units).
Series I. includes a brief history of the Sangerite Move-
ment and how such obstacles as "longstanding values and
attitudes about pro-creation", religious teachings such as "be
fruitful and multiply" and sex is sinful except for procreation-
theology are fading into the distant horizon and replaced with
the new Planned Parenthood ethic. Also mentioned is the intro-
duction of birth control clinics into Puerto Rico "under the
guise of maternity services", and the flooding of P. P. units by
millions of middleclass women anxious to "control their fertil-
ity" after the advent of the Pill.
Additional obstacles to HUD programs also includes
charges of genocide by minority groups and RESTRICTIONS
OF WOMEN SEEKING ABORTIONS (emphasis added).
Cited as an example of how pressure groups can team ur
with service providers using public funds is the Shaw University
teen program funded by the OEO. (USCL Reprint No. 114)
In this federally funded innovative program, teenage family
planning pimps solicited pre-teen black youth operating out of
a health clinic in a public housing neighborhood known as HIP.
Their "meetings" included distribution of condoms and foams
to youth as young as twelve years old.
According to the HUD publication "many public officials
now consider it their responsibility to support this expression
of the nation's will" (p.1 7).
Besides, family planning helps avoid illness and can be
thought of as part of arvy preventative health care program. This
makes pregnancy a disease against which there is immunization.
There is also the matter of economics. Included in the
section are charts detailing the economics of "unwanted fertil-
ity" and the cost-benefit ratio of avoiding "unwanted births"
with the admonition that the cost of raising one child on wel-
fare is 26 times greater than the $300.00 which could have been
used to keep him out of this world in the first place.
Series 1 1, highlights the various task forces and community
action approaches. HUD administrators are warned that the
clergy might object to such programs to be sure and state that
all methods including rhythm are to be offered. The goal - a
comprehensive range of family planning services "to all persons
of child bearing age in the target area".
Series III. includes a variety of clinical tasks including
abortion counseling services.
For "high-risk" females "contraceptive counseling by a
physician should be considered mandatory".
Appendix I offers a sample copy of the PROVISIONAL
REPORT FORM FOR FAMILY PLANNING SERVICES OF
HEW which ALL OEL, DHEW, and Planned Parenthood pro-
grams are REQUIRED to submit to the National Center for
Health Statistics.
Included in the report is a detailed account of the patient's
"sexual history" including frequency of intercourse, age of first
intercourse, attitudes of partner toward contraception, and type
of contraception used.
A sample of the IUD consent form used by Dr. Joe Beasley
at his Louisiana family planning clinic absolving the physician
from liability for any ill-effects the patient may suffer from the
IUD insertion, is also included.
This series lists distributors of contraceptive supplies and
abortifacient devices. For rhythm information and supplies
Planned Parenthood is listed as a reference despite the fact
the Human Life Foundation which has been in existence
since 1968 is the nation's prime source of updated information
on natural family planning methods.
Series IV. attempts to establish standards by which one
can measure the effectiveness of family planning programs. The
HUD publication insists that all barriers must be removed which
inhibit teens from getting the services they need. Planned
Parenthood's Teen Clinic is selected as a model program.
Pro-lifers may recall in the Fall of 1972, a Youth Resource
Handbook funded by HUD and provided by Kentucky's Human
Resources Coordinating Commission, which gave a detailed fact
sheet on where teens could obtain out-of-state abortions along
with prices and transportation information.
References throughout the series include Planned Parent-
hood, the Population Council, the Population Reference Bureau
and Westinghouse Learning Corporation.
Each cover of the series includes a disclaimer which reads in part that the opinions expressed in this publication do not
necessarily reflect the opinions or policies of .any U. S. Government agency.
The Coalition is ready to admit that this is true. The opinions expressed are those of Planned Parenthood and Company
who just happen to use the agency's name and funding to propagandize their policies and philosophy in much the same way
as it has prostituted numerous other Federal agencies. We do however, hold the Department of Housing and Urban Develop-
ment responsible for permitting its agencies to be used for purposes other than specifically called for in the DHUD Act of Sept.
9, 1965 and for its circumvention of legislative intent by bureaucratic fiat.
The Coalition has informed HUD Secretary George Romney and Assistant Secretary for Community Development,
Floyd H. Hyde of these violations and asked that all HUD "family planning" activities be brought to an end.
Address: Department of Housing and Urban Development
451 Seventh Street SW, Washington, D.C. 20410
The complete four-part monograph is available for $4.50 from the Superintendent of Documents, Government Printing
Office, Wash., D.C. 20402.
"Tax Decentives First Level of Population Control"
On January 31, 1973, Senator Robert Packwood intro-
duced S.650, a bill to extend to all unmarried individuals the
same tax benefits enjoyed by married couples filing joint returns.
The following month The Report of the Tax Policy Ad-
visory Committee to the Council on Environmental Quality
recommended that the Federal Income Tax should be changed
to give higher exemptions for adults than for children on the
grounds of equity and "as a symbol of population policy".
62
In Beyond Conception: Our Children's Children, Martha
Willing of Population Dynamics, Seattle, Washington illuminates
the meaning of tax decentives within the context of population
control programs.
"One by one, as individuals come to accept Stop at Two
for themselves, the need to persuade and coerce others will
also develop," states Mrs. Willing.
The "three stages of mutual legislation coercion" include
(1) the removal of a $700 tax deduction for third and fourth
children
(2) replace incentives "to breed" with incentives and rewards
for small families
(3) "to penalize deliberate violations of a small family norm,
and to set up controls which prevent such violations."
In order to be democratic or uniformly totalitarian, Mrs.
Willing suggests that tax decentives for upper and middle-class
parents be matched by turning the screws on welfare families
with excess fertility. The author also includes programs limit-
ing free public schooling for two children per family and the
granting of college scholarships to parents with only one or two
children.
And what about punishments for violators?
"Again, after the third child is born, both mother and
father will have to present themselves at the hospital to undergo
sterilization procedures. If the couple does not appear, or if only
one appears, there will be NO BIRTH CERTIFICATE ISSUED
to the third child, but instead a third-child paper. The mother
can be tattooed or marked to signify a third birth to any sub-
sequent doctor. Instead of the missing parent, THE CHILD
CAN BE STERILIZED ON THE SPOT, insuring that this undue
share of the gene pool will not be carried forward." (p. 174)
(Editor's Note: the only thing more physically revolting than
having to read the above paragraph is having to print it.)
According to Mrs Willing, half of the battle of coercion
is won since we have birth certificates which state who had had
children and how many. She therefore sees little difficulty in
persuading couples wishing to obtain the birth certificate for
child No. 3 to either sterilize themselves or agree to abort all
subsequent children.
"Office of Economic and Other Opportunities (OEO)"
A moratorium on the use of Federal funds to sterilize
minors and legal incompetents is currently in force until new
Federal guidelines are put into effect about September 1st.
The Coalition has petitioned Casper Weinberger, Secre-
tary of HEW to extend the moratorium to include abortion
of minors without parental consent and the use of experi-
mental drugs on minors and legal incompetnets for the pur-
pose of temporary sterilization and/or as an abortifacient
agent We have also asked for an impartial investigation of
agencies receiving Federal funding such as Planned Parenthood
which is currently involved in both the aborting of minors
without parental consent and the use of experimental birth
control techniques on minors and the retarded.
Planned Parenthood Films
The OEO has funded three films produced by Seattle's
Planned Parenthood Center for Moms and Dads. The first of
the sex education series is "Old Enough to Know". Other
films will be directed at pre-teens and mature adolscents and
their parents.
OEO Legal Services Lawyers and Abortion Litigation
On June 21, 1973, Congressman Hogan detailed the anti-
life activities of certain OEO Legal Services lawyers and pro-
posed an amendment to the pending legislation which would
prohibit the Legal Services Corporation from providing legal
assistance to any proceeding or litigation relating to abor-
tion. (For full statement and working of final amendment see
the Congressional Record - June 21, 1973, H5129-H5131).
Evidence linking OEO legal services attorneys with cases
attacking anti-abortion statutes in New 'York and California
were clearly documented. Additional evidence related to OEO
attacks upon parental rights and the constitutionality of anti-
abortion statutes, as well as support for aborting minors with-
out parental knowledge or consent.
The House voted 301 to 68 to accept Hogan's amend-
ment to the Legal Services Corporation Act.
"U.S. Dept. of Agriculture - Cooperative Extension Service"
On the evening of February 22, 1973 the Cooperative
Extension Association of Chemung County (N. Y.) co-sponsored
a workshop entitled "Issues in Population" wi th Planned Parent-
hood of the Southern Tier.
Publicity sheets announcing the program bore the letter-
head:
Cooperative Extension Service - New York State
Cornel University-State University of N. Y.
U. S. Department of Agriculture
Packets distributed to the teachers at the workshop in-
cluded Guttmacher's "The Tragedy of the Unwanted Child",
"The Viewers Guide to Population and the American Future,
Kathryn Horsley's (Population Reference Bureau) Sources,
Resources: Population Education, and an assortment of other
PP-WP and PRB materials.
The film shown prior to the lecture was 1985, a drama-
tized news broadcast reporting on the environmental disaster
brought about by overpopulation and associated ills. Produced
by Metromedia, the film is distributed by the Denver Chapter
of ZPG.
Lectures included Prof. J. Mayone Stycos of Cornell
University. Professor Stycos is a technical consultant to the
Population Reference Bureau. In September 1972 he received
a grant of $13,629 to study "DIOCESAN MOBILIZATION
AGAINST ABORTION LAW REFORM" from the DHEW's
National Institute of Health.
Mrs. Sally Auman, Cooperative Extension Specialist in
Population Affairs, Cornell University also spoke on population
change.
The program was moderated by a local Planned Parent-
hood physician.
Jane Callahan, president of Chemung County Right to
Life has protested the use of tax funds for such programs and
demanded a full investigation of the financing, staffing, and
salaries of the Chemung County Coop-Extension Association.
63
BACKGROUND
This workshop is the outgrowth of PERSPECTIVES FOR
THE 70's, developed by the Program Planning and Development
staff of Cornell in cooperation with other agencies including
the program staff of the Extension Administration and designed
for state-wide (N. Y.) educational programs. Among the "prior-
ity areas" for Cooperative Extension Service in this decade is
Population - Growth, Dispersion, Control.
The pilot project in population-communication has been
in operation for MORE THAN ONE YEAR. Sponsor of the
project is COSPA/NY (Communications Specialists in Popula-
tion Affairs/New York).
Funding for the project is derived mainly from the Inter-
national Population Program of Cornell University directed by
Professor J. M. Stycos, as well as from the Extension Admini-
stration and the Human Ecology College. Total budget for 8
month pilot project - $13,900.
COSPA/NY chose to use the Cooperative Extension Ser-
vice in its opening phase because of the agency's built-in-state-
wide communication network. Project objective: to explore
the possible roles for extension agents in the areas of popula-
tion-family planning.
In the past two years, N. Y.'s Cooperative Extension
Agency has been "orientating" its agents in these fields parti-
cularly through special sessions at annual conferences. In late
1971, the agency's director approved the training of agents and
paraprofessionals in family planning communication. Popula-
tion-family planning are seen as being easily integrated into
Extension 4-H programs and nutritional programs for low in-
come groups.
To prepare agents, a notebook POPULATION AFFAIRS
AND NEW YORK STATE was prepared by COSPA/NY. This
"guide" intended for the long Range Planning Committees
of the Coop-extension staff include in its table of contents;
A Plan for Study: Population and the American Future, and
assortment of P. P. - W. P. and Population Reference Bureau
literature, and tapes by Stycos, Cole and Guttmacher. Note-
book topics include abortion, family planning, population con-
trol. These population-family planning "services will eventually
be extended to all counties of New York State."
Funding for state Coop-Extension Services is shared by
State Governments, county governments and the U. S. Depart-
ment of Agriculture.
Extension programs include 4-H youth development, home
economics and special programs for low income people.
In a letter to Sen. Schweiker of Pennsylvania intended
for the U. S. Coalition for Life, Edwin L. Kirby, Administrator
for the U. S. D. A. Extension Service stated:
(1) The U. S. D. A. has no policy on family planning or
population control education. Any state university Exten-
sion Services conducting such programs are doing so "in
response to the expressed needs of the citizens of those
states . . ."
(2) I nformai, out-of -school extension programs areauthorized
under Smith-Cever legislation (as amended).
(3) The U. S. D. A. has made no survey of the State Exten-
sion Services to determine if they are conducting any
family planning education programs. 'The Department
does not have this information."
(4) 'The role of the agricultural Extension agents is entirely
educational. No agent would ever distribute contracep-
tive devices.
(5) There are presently no plans for the D. A. to assume a
role in family planning, in population control or in abor-
tion referrals.
Answers to (4) and (5) are in reference to a Planned
Parenthood reprint of January 1972 entitled, "Agricultural
Aides: A New Manpower Resource" by Jean Brand, Extension
Education Specialist with the Extension Service of the U.S.D.A.
The article is based on a graduate thesis and reflects the author's
views and not necessarily those of the U.S.D.A. or the Extension
Service.
Of interest is Brand's outline of mechanisms by which
the U. S. Department of Agriculture via the Extension Service
could become involved in the family planning field. Recom-
mendations include the announcement by the U.S.D.A that it
would support funding for such programs; getting local exten-
sion committees to relay their "interests" in such programs to
State Extension Services; and getting ECOP (Extension Com-
mittee on Organization and Policy) to create a "consensus"
favoring such involvement.
The U.S.D.A. currently employs more than 9,000 agricul-
tural aides in its nutrition education programs reaching more
than 1.7 million people, mostly low income women.
Objective of the program would be to have these aides
trained in family planning education, the information would
thus be incorporated into their presentations and the aides
could then make appropriate referrals to family planning agency
for their problem.
The Coalition has requested that Mr. Kirby, the head ad-
ministrator of the U.S.D.A. 's Extension Service to:
(1) Conduct a survey of State Extension Services to
assess the degree, if any, of such agencies in family planning-
population education programs and make the results of such a
survey available to the public.
(2) To investigate whether or not ECOP has taken up
the question of including such programs as a matter of policy
into existing Extension programs including the nutritional
aides projects.
(3) To state whether or not the U. S. Department of
Agriculture is considering supporting, directly or indirectly,
this agency's involvement in family planning or population
education programs.
Support for Coalition action may be directed to:
Mr. Edwin L. Kirby, Administrator and Earl L. Butz, Secretary
of Agriculture — USDA, 14th St.-lndependence Ave. SW -
Washington, D.C. 20250.
"East-West Center — Hawaiian Population Control Base"
The East-West Center is "An Educational Institution of
the Government of United States of America in Cooperation
with the University of Hawaii".
Formally known as the Center for Cultural and Technical
Inter-Change Between East and West, the Center was established
by Congress in 1960 to promote better relations and mutual
respect between the U.S. and the Nations of Asia and the Pacific
64
BACKGROUND
In 1971, the E-W Center's Communication Institute, one
of five institutes conducted by the Center, received a grant
from USAID for the establishment of an international popula-
tion communication center. "A major goal of the resource base
is the training of population program communication specialists,
planners, and administrators primarily through scholarship and
workshop programs. The activity of the E-W Communication
Institute is coordinated with the E-W Population Institute and
the University of Hawaii.
The official organ of the E-W Communication is the IEC
Newsletter (Information, Education, communication in popula-
tion) Address: 1777 East-West Road, Honolulu, Hawaii 96822.
Anti-Baby Propaganda Center
The following sampling of "messages" from the Commun-
ication Center were selected from five IEC Newsletters. With-
out exception, the messages are anti-large (anti-moderate) size
family. They are distinctly pro-population control including
pro-sterilization and pro-abortion.
July, 1972 Contents included:
Promotion for Rockefeller Report
Sol Gorden's Ten Heavy Facte About Sex
First "Love Boutique" at Chapel Hill
Choice Not Change - P. P. Nigerian style brochure
"None Is Fun" promotion on the National Organization
for Non-Parents.
True to Life - Birth Control - Abortion confession mag-
azine.
Pop Goes the World explosion poster
November, 1972 - Contents included:
P. P.'s comic book, Facte of Life
Korean family planning song on happy children — only
those who are planned . . . planned . . . planned . . .
Population posters on spacing children like you space
bananas
Snakes and Ladders - P. P. style game with such label-
ing as "Tired, Sick Mother" vs "Strong Nation"
Population Reference Bureau — Jr. High and Secondary
School population texts
Market Research and STOP AT TWO
January, 1973 - Contents included:
ZPG-PP poster featuring a baby in his birthday suit
laying on an ancient symbol beneath which is
scribbled, "Have me if you want But: if you can't
give me love, security and support, Please Wait,
I Can".
Diana Ross's song "Love Child" about an illegitimate and
unplanned child and its value as a family-planning
song in the mass media.
Population Council's Walt Disney Family Planning Film-
strip — modified Indian version.
"Paste Your Umbrella" student population control book-
let • India Poster Contest - Winner's themes
include, Make Love Not Babies, Population Ex-
plosion and Two are Enough • P.P.'s Love . . .
Carefully posters and stickers
March, 1973 - Contents include:
Promotion of condom sales
Anti-large family posters from Afghanistan
May. 1973 - Contents included:
Promotion of condom sales
Sol Gorden's Planning Your Family
"Pregnant Male" promotes sterilization clinic
Population Institute's Poster winners
American Home Economics Population Packets
AID's Population Information Program at George Wash-
ington University in D.C.
Promotion for Rockefeller film
ACTION LINE
All IEC Newsletters- contain anti-life references. To date the
1-W Communications Center has never published any prr>life
Information sent to it by the Coalition over an extended period
■of 1 5 months.
All these newsletters and workshops and scholarships are
funded by the Federal Government, and promote an idealogy
yvhich many Americans find repugnant
The Director ot the E-W Center has been notified by tele-
gram that if there is no immediate balance brought into the
newsletter and workshop programs, the Coalition will move for
appropriate Congressional action beginning in September to cut
oft *heir population funding.
NON-GOVERNMENTAL AGENCIES
"American Psychological Association"
TASK FORCE ON PSYCHOLOGY, FAMILY PLANNING AND
POPULATION POLICY
The Fam-Pop Task Force of the American Psychological
Association began in December 1969, following the creation
of the Task Force by an APA Council Resolution. Funding for
a March workshop to discuss the role of psychologists in this
area was provided by Rockefeller's Population Council. A
questionnaire was submitted to the APA membership to meas-
ure the degree of interest and research, training, and service
areas related to population, and members were encouraged to
get on the Population Council mailing list. Suggested abortion
readings include D. Callahen's Law, Choice, and Morality (Popu-
lation Council grant) and R. Hall's Abortion in a Changing
World.
Listed among the Task Force consultants are Sidney H.
Newman, Ph.D., Behavioral Scientist Administrator at the Cen-
ter for Population Research of the NICHD. and Vaida Thomp-
son of the University of North Carolina, Chapel Hill, and Dr.
H. P. David. AIR/Transnational Family Research Institute.
In 1971, the Population Council funded the 2nd invita-
tional workshop at Berkeley on "Psychological Measurement
in Studies in Family Planning". The Ford and Rockefeller
Foundations also announced a Program in Support of Social
Science and Legal Research on Population Policy, with a maxi-
mum one year award of $50,000.
Recommended population resources listed in the Task
Force newsletter of December 1970 included Planned Parent-
hood, the Population Crisis Committee and the Population
Reference Bureau.
65
The June 1972 Newsletter announceWKat the Task Force
was now in its third and last year and contained a petition to
establish a DIVISION OF POPULATION PSYCHOLOGY with-
in the APA. It also announced an invitational workshop on fer-
tility counseling to be held in Hawaii sponsored by the Federal
Government's National Center for Family Planning Services and
APA. A-ttached was a^Kpy of the Population Program of the
1972 Annual APA Convention.
Among the topics and papers covered were Toward Train-
ing Population Psychologists, Attitudes of Health Professionals
Toward Family Planning and Abortion, and Population Control,
Family Size, and Family Planning.
I
ACTION LINE
The A. P. A COUNCIL WILL BE CONSIDERING THE
ESTABLISHMENT OF A DIVISION OF POPULATION PSY-
CHOLOGY AT ITS UPCOMING CONVENTION IN MON-
TREAL IN SEPTEMBER.
Pro-life groups are now organizing under a variety of
professional banners, i.e. Pro- Life Nurses Association, Pro- Life
OB & Gyns. Pro- Life psychologists may want to do likewise
in order to provide pro-life input into the new Division of Pop-
ulation Psychology of the American Psychological Association.
Additionally, pro-life editors and writers should begin
sending their publications and articles on a regular basis to the
newsletter editor of the upcoming division, at the following
address:
Ad hoc Committee on Psychology, Family Planning
and Population Policy
Newsletter Editor
Division of Population Psychology
1200 17th Ave., NW, Washington, D.C. 20036
"Children's Television Workshop Health Series"
On March 27-28, 1973 the Children's Television Work-
shop, creators of "Sesame Street" met with a number of family
planners to discuss topics including contraception, abortion and
sterilization. The Family Planning Task Force was one of seven
groups assembled with writers and staff personnel of CTW,
each meeting held at separate times, over a period of three
months.
In his Friends of P. P. May 4 Newsletter, Dr. Alan Gutt-
macher described a portion of the discussion as well as the
attitudes of the participants relating to contraception and abor-
tion.
According to Dr. Guttmacher, most participants in the
"free and frank" discussion agreed that the topics be handled
"openly and sympathetically". "One participant suggested that
abortion be mentioned at least 16 of the 26 hours to detoxify
the viewing audience from cultural shock at the word" he states.
One of the show's producers upon hearing Ella McDonald of
N.Y.'s Human Resources Administration discuss the predica-
ment of a pregnant eight-year old and the distress of the staff
when the mother refused to have the child aborted, suggested
the episode be included in their script.
"The plan is to integrate family planning as an important
segment in several different shows rather than isolating it as a
separate topic. The television amateurs were reminded by the
professionals of the value of repetition," concludes Dr. Gutt-
macher. (all emphasis added)
"Cartooning and Population Control"
Last year, the Population Institute's Population Commun-
ication Center (475 Riverside Dr., N.Y., N.Y. 10027) sponsored
a $5,000 award for the best 30 minute script on population con-
trol produced on prime-time television between Sept. 72 and
Jan. 73.
The "different shows" Guttmacher refers to will be based
on the following topics (each having been given a separate dis-
cussion period):
Parenting: Adolescent Health Problems
Parenting: Prenatal, Infant, and Child Care
Modification of Personal Habits: drugs, smoking . . .
Seeking Care: Access, Use and Participation
Chronic Diseases
Family Planning
Death
The 26 part CTW Health Series project involves three
phases with Fall, 1974 the date of the anticipated broadcast (s).
The task force seminars were part of Phase II and designed for
possible series content and to generate program ideas.
Given the task force participants in the family planning
unit, the Coalition believes that Dr. Guttmacher's evaluation
of the orientation of the seminar was accurate.
ACTION LINE
Mr. William Kobin, Future Works Division of CTW has
offered to meet with the U. S. Coalition of Life to discuss our
views on the topic of "family planning". As this newsletter
goes to print, we are in the process of arranging such a meeting
as a preliminary action for full dialogue with the Children's
Television Workshop Production Staff.
This year, the Communication Center has launched a
contest for cartoonists through several major cartoonists' soci-
eties. The goal - use of cartoons in the mass media to influence
and persuade in the area of population control and family
planning.
66
"Planned Parenthood and Media TIMWANKS"
Richard K. Manoff, ad man for Planned Parenthood and
a member of Dr. Louis Helman's Population Committee, has
complained that despite the approval of the Advertising Council,
some stations have turned down his broadcast spots.
In a statement carried in Advertising Age (10/30/72),
Manoff suggested that Congress require radio-tv stations to set
'Law and Population Programme"
In 1970, the Agency for International Development con-
tracted with the Fletcher School of Law and Diplomacy of Tufts
University (administered with the co-operation of Harvard
University) to establish a Law and Population Programme, at
a cost of $640,000.
With its main thrust directed at the development of a
reporting network on legal data from developing nations, the
Programme has also conducted seminars and initiated in-depth
national studies on how the law effects human fertility behavior
(ex. laws restricting distribution or importation of contracep-
tives or laws prohibiting contraceptive sterilization and/or
abortion.) Currently, it is compiling and analyzing country
monographs and in co-operation with UNESCO is sponsoring
an inter-regional workshop to teach "population dynamics"
in law schools.
Programme Director Luke T. Lee also serves on the United
Nations Fund for Population Activities enabling the agency to
co-ordinate its activities on an international scale - activities
which will culminate in the 1974 World Population Conference
for which the Programme is preparing reference documentation.
While the earlier newsletters of the Programme repeatedly
emphasized the U.N. declaration that family planning is a basic
human right, the developing orientation of this group is clearly
directed along population control lines in which all means of
aside 10% of their total commercial time for public service in-
formation on such things as family planning, education, etc
. . The public service "time bank" would be administered by
a non-political, new public corporation.
This system could be used by such "starved" govern-
men programs as HEW's family planning services, Manoff
suggested. (Editor's note: Just a little bit of humor, folks!)
fertility control including abortion, sterilization and contracep-
tion are supported by law.
For example, the May 1973 newsletter briefly described
the legal maneuvers of the International Planned Parenthood
Federation (IPPF) at its Indian Ocean Regional Seminar at the
University of Ceylon in July, 1972 at which time the IPPF re-
commended that countries in the region set up special commit-
tees to study the feasibility of liberalizing present laws, regard-
ing "pregnancy termination".
Such an admission is of critical importance to pro-life
agencies since the U.S. Agency for Internation Develop-
ment is the major source of funding for the IPPF. Sec-
ondly, the IPPF has maintained that where abortion is
illegal, its policy is merely to insure medical aid in cases
of incomplete abortions backed up by contraception pro-
visions. (See Abortion - Classification and Techniques,
published by the IPPF, 18-20 Lower Regent Street, Lon-
don SW1 Y 4PW, England Price $1.00).
The IPPF is currently funding Law and Population Pro-
jects in Latin America including a Mexican venture begun in
1972.
ACTION LINE
Pro-life attorneys and other legal personnel may obtain
additional information on the Programme by contacting Mr. Lee
at Tufts University. Medford, Mass. 02155.
"Rockefeller Foundation and Abortion and Dr. Know-LEK'
On March 14, John H. Knowles, President of the Rockefeller Foundation addressed the National Advisory Council of the Cen-
ter for Family Planning Program Development, in New York City. The CFPPD is the Technical Assistance Division of Planned
Parenthood-World Population.
The subject: An affirmative Response of the Health System to the Supreme Court Abortion Decision.
Accordingto Dr. Knowles, the key ingredients in securing implementation of the S.C. mandate involves (1) an informed public
policy and (2) an effective action program. Thus enabling a capacity load of from 1 ,200,000 to 1 ,800,000 killings a year throughout
the nation to take place.
Part of the public education program would include promoting the advantages of the early detection of the presence of the
child within the womb and then as promptly and efficiently as the "health services" could react, destroying that child, with tax funds
if necessary.
While forcing anyone to have an abortion or to perform an abortion is not indicated by the S.C. decision, Dr. Knowles sug
gests that the "service" must be available and accessible to those who need and want them. Unless communities take the necessary
steps to make abortion facilities readily available and accessible, it is "unfortunately", predictable that legal and other pressures will be
brought to bear to compel the existing institutions (including hospitals and health institutions with religious affiliations) to meet
community needs.
RF and Population Control
In the June 1973 issue of RF Illustrated, Dr. Allan C. Barnes, Vice-President of the Rockefeller Foundation attacks the pro-
blem of how to reach "the ignorant, the uneducated, and the lowly motivated" with the New Malthusian Gospel according to the
new St. Paul.
"Do not tell me what the Old Testament says, because the Old Testament was written on the flat side of the curve" (referring
67
to world population growth chart), suggeSrc Dr. Barnes, who sees the problem as not merely one of making birth control available
but one of getting people to do as they are told.
The combined population control budget for Ford-Rockefeller grants in 1972 was $23 million. Grants to 26 social scientists
and legal scholars from the Ford-Rockefeller Foundation in 1972 totalled $647,702 for a variety of population projects involving
the effects of the U.S. income tax on fertility patterns to motivations for delayed marriage in Hong Kong.
Some 1972 Rockefeller grants which may have special interest for pro-lifers include:
$ 25,000 - Operating costs of Citizens Committee on Population Growth and the American Future.
$ 25,000 - To the Population Crisis Committee for their special population report.
$ 5,900 - To the family planning program of Emory University, Georgia publishers of TRUE TO LIFE, the true confession birth
control-abortion magazine.
$ 86,000 - Grant to the Planned Parenthood Association of MARYLAND for population education in the BALTIMORE schools.
$500,000 - To the Population Council for "new Approaches" to conception control.
$ 50,000 - To the James Madison Constitutional Law Institute for programs in population law.
$ 98,000 - Grant to Wake Forest University for RESEARCH IN REPRODUCTIVE IMMUNOLOGY.
"The Playboy Foundation"
Citing its role in aiding "the right-to-abortion movement" the Playboy Foundation listed the following orgainzation as grant
recipients: Association for the Study of Abortion (ASA), the Illinois Citizens for Medical Control of Abortion, the Clergy Consul-
tation Service on Problem Pregnancies, the National Association for the Repeal of Abortion Laws (NARAD, Women's National
Abortion Coalition (WNAC), Center for Constitutional Rights, and Texas Citizens for Abortions.
Additionally, the Playboy Foundation supplied the Supreme Court with copies of an article by Professor Means on the history
of abortion in both English and American Law, which was quoted in the Court's Texas opinion. (Playboy, May 1973, p. 71). Now
who said the Supreme Court didn't do their homework?
"Population Control through Home Economics"
The American Home Economics Association has signed
a three-year contract with the Agency for International Develop-
ment (USAID).
In 1971, AID awarded a grant of $1 18,000 to the AHEA
to assess "needs and opportunities" for home economics asso-
ciations and institutions in developing countries to provide
family planning concepts and information. When field surveys
proved "so enthusiastic" AID increased its first year funding
in order to support three family planning workshops in 1972
at Lincoln, Nebraska, Washington, D.C. and Atlanta, Georgia.
Participants in the workshops were home economics stu-
dents from developing countries studying in the United States.
The workshop format centered on ( 1 ) Community Experiences
- designed to develop "population awareness" (2) Home Coun-
try Studies - population trends showing need for family plan-
ning material made available to students and (4) Spreading the
Information - students project in area of population.
The theme of the three-year AID funded project is "A
Quality Life Through Family Planning" in which the concept
of family planning will be integrated with home economics
programs.
The International Family Planning Project PACKET is
available in English and Spanish editions for $2.00 each. Order
from: AHEA, 2010 Massachusetts Ave., N.W., Washington,
D.C. 20036.
The packet includes a brochure "The Time is Nowl
Home Economics and the World's Population Problem".
References and publications listed in the AHEA Project
bibliography will provide a fairly comprehensive list of anti-life
agencies in the United States, both private and governmental.
These sheets are available upon request from the AHEA. Pro-
life references are conspicuous by their complete absence from
the AHEA material.
"Child Welfare League Policies"
The Consortium on Early Childbearing and Childrearing
operates under the aegis of the Child Welfare League of Amerita
(Suite 618, 1145-19th Street, N.W., Washington, D.C. 20036)
and is funded by the Federal Government.
The Consortium's two major concerns are (1) the preven-
tion of pregnancy in adolescence and (2) the development of
comprehensive services for school-age parents. A variety of
workshops, conference and consultation services come under
its sponsorship.
In its Winter, 1972 issue of SHARINGS, Planned Parent-
hood's legal brain, Harriet Pilpel discusses the legal rights of
young people — legal rights pertaining to contraceptive services
and abortion. With one exception, the views expressed in this
particular issue are similar to those of Miss Pilpel. The excep-
tion appears to be that of Linda Jenstrom, of the Consortium.
However, for the record, it should be noted that under
the revised Child Welfare League Association standards we read:
Recognition of availability of birth control and legal abortion.
Thus the league's interest in child abuse and child protection
does not extend to occupants of the mother's womb.
Though the information concerning SHARING is some-
what dated, the Coalition is bringing it to Pro-life attention
because of the Office of Child Development's Parenthood Edu-
cation program which will effect 500.000 teenagers in 500
school districts by September 1973 as a "pilot" project In
addition to "parenthood" courses, existing programs, such as
home economics are expected to be altered to include the
course also.
Head of the program is W. Stanley Kruger. The curricu-
68
lum materials were prepared by the Education Development
Center of Cambridge, Mass. with a more than $570,000 grant
from the Office of Child Development.
Additionally $500,000 in grants was made to several
national voluntary youth-serving organizations. We will pub-
lish this listing in our next mailing.
ABORTION SEMINARS
"Advance in Death Technology - Abortion Symposiums"
C/n May 16, 1970 the Society for Humane Abortion
sponsored the FIRST AMERICAN SYMPOSIUM ON OFFICE
ABORTIONS in San Francisco. Seventy-two people attended,
42 of whom were physicians.
The panelists included attorney Richard Bowers, founder
of 2PG and currently on the Board of Directors of NPG; SHA
President, Patricia T. Maginnis, abortionist W.J. Bryan Hernie,
D. O. of Grove, Oklahoma, David B. Cheek, M. D. of the Pacific
Medical Center of San Francisco and NARAL V. P. Lana Clarke
Phelan.
John Lang, represented the Berkeley Tonometer Com-
pany, manufacturers of Berkeley vacuum aspiration machines
— vibrodilator probes and vacurettes.
The following comments were selected from the proceed-
ings of the symposium —
Following the showing of "Uterine Aspiration" prepared
in the Dept. of Ob-Gyn at the University of Michigan Medical
Center, the audience asked Mr. Lang what pressure he recom-
mended for aspiration.
He replied: "All you can get. The Berkeley machine
should be set for maximum vacuum ... 73. Holding the vacuum
down to minus 55-60 may not accomplish evacuation."
When questioned about the advantages of the vibrodila-
tor, Dr. Gregory Smith who claimed his experience to be with
150 abortions stated: "Well, you can't live without it once
you've used it . . ."
When Dr. Cheek was asked if he told his abortion patients
about the risks (informed consent) he replied, "No. Would you?"
and explained that informed consent "is the worst kind of con-
sent you can get" because you are telling the patient the ex-
pectancy of trouble . . ." Asked about the use of non-anxiety
provoking words by a Planned Parenthood worker. Dr. Cheek
said he didn't use the word scrape but rather "we're going to
take out some tissue . . ."
The abortionists in the audience complained that while
they were operating all they wanted to on Saturdays and
Sundays, they were often stymied by the lack of nurses and
anethesiologists to which Dr. Nancy McCall replied, "Yes. We
have a problem of a lot of up-tight nurses who for some reason
or other won't help, and if those happen to be the same ones
on call, we're up a creek."
Speaking on attitudes about pain control. Dr. Cheek
claimed that "The sooner we get rid of those laws, and make
abortion a common sense extension of contraceptive care, the
easier the problem of pain control will become."
(In October 23, 1971 a second Symposium on Clinic and
Office Abortion Procedures was held in Madison, Wisconsin.
The proceedings were later published by the Society for Humane
Abortion.
Symposium participants and moderators included:
E. James Lieberman, M.D. Psychiatric Consultant, Preterm
Clinic, Washington, D.C.
Sadja Goldsmith, M.D., Director of Teenage Services, P.P.-W.P.
San Francisco
Sarah Lewit, Biomedical Division, Population Council, N.Y.
Harold Rosen, M.D. of Johns Hopkins, Baltimore
Alfred L. Kennan, M.D. Director, Midwest Medical Center,
Madison, Wisconsin
Speaking on the role of preparing the patient. Dr. Gold-
smith of P.P. says she uses the analogy that (up to about six
weeks gestation) "an abortion is something like bringing on a
period." She also tells her young patients that "When I was
about your age I had an abortion, and later on when the time
was right, I had children." According to Dr. Goldsmith, who
later describes abortion techniques with Dr. Alan Margolis,
the young teenager wants to see someone as a model to make
having an abortion acceptable.
However, the question of doing too many abortions was
raised by abortionist Dr. Joseph Blanchard who admitted that
at first he could do twelve abortions a day, but that he found
the procedure to be too big of an emotional drain. Now he
doesn't schedule any more than two saltings and four vacuums
in any one day.
In a discussion of techniques and procedures using para-
medics. Dr. Bernard Nathanson of Women's Services, N.Y.
stated that he ran into strong resistance against using paramedi-
cal abortionists when he spoke in and around Harlem and other
black areas of N.Y.C. "I was virtually stoned out of every one
of these meetings . . . nobody was going to experiment on them
. . . they wanted doctors and only doctors . . ."
Regarding the status of minors seeking abortions. Dr.
Rosen of John Hopkins stated that "any female in our state,
once pregnant (the youngest I have seen was eleven and one-
half) is, in the eyes of our law, not a minor, but an adult. It is
neither necessary or obligatory to inform her parents about an
abortion . . ."
Dr. A. Frans Koome summed up the proceedings very
well when he said, "The whole question of abortion is pretty
much a matter of economics . . ."
| hree months later, on December 9-10, 1972, the Battelle
Population Study Center in Seattle, Washington organized and
conducted a workshop on current and improved means of preg-
nancy termination. The proceedings were summarized by
Diana Schneider Johnson. Ph.D. of the Medical College of Vir-
ginia in "Termination of Pregnancy: Current and Future Direc-
tions."
Participants included:
Malcolm Potts, M.D., Medical Director, International Planned
Parenthood Federation
Leonard E. Laufe, M.D. of West Penn Hospital, Pittsburgh, Pa.
69
Dr. Harvey Karman (Los Angeles)
Dr. Ronald J. Pion and Harry J. Levin Univ. of Hawaii
Dr. R. T. Ravenholt, Director of the Aid Population Office
According to Dr. Potts, IPPF, those people who use fairly
reliable contraceptive methods are more likely to use abortion
than any other group and the availability of legal postconception
fertility control reinforces interest in family planning and in-
creases the credibility of family planning programs. Dr. Potts
suggested that abortion when combined with traditional con-
traceptive methods was safer than either abortion or use of orals
alone.
Dr. Pion, playing the semantics game suggests that the
termination procedure is similar to an "endometrial biopsy"
for which very little patient preparation is necessary.
Discussion of the advances in death technology included
demonstration of various vacuum machines and discussion of
current and new abortion techniques including vacuum aspira-
tion, use of hand and foot pumps (Goldsmith), modified bicycle
pump (Potts), chemical abortifacients (Pion), the "supercoil"
(Karman), and electric probes (Pion).
On the .subject of pre-aspiration procedures, the author*
reports that "Dr. Ravenholt proposed that it might be feasible
to use a jet injector similar to that used in mass innoculations
..." in administering paracervical anesthesia, (from: Contra-
ception, an international journal published by Geron-X, Inc.
Box 1108, Los Altos, California 94022. Subscription rate -
$30.00 per year)
All of the above symposiums reveal the classic anti-life
mentality of the abortion establishment. To obtain file copies
write:
Society of Humane Abortion, Box 1862 - San Francisco,
Cal. 94101
First American Symposium on Office Abortions- $2.00
per copy
Abortion in the Clinic and Office Setting - $1 .00 per copy
D. J. Prager, Battelle Population Study Center - 4000
N.E. 41st Seattle, Washington 98105 - no charge
for single copy.
"Abortion - The Freedom Not To"
On May 30, 1973 a dozen representatives of national reli-
gious, civil liberties and women's organizations appeared in
Washington, D.C. to protest Federal health legislation which
would permit any hospital or any other facility funded by the
Federal government to refuse to allow abortions and/or sterili-
zations in their institution.
Among those in attendance at a news conference to dis-
cuss the protest was Carol Foreman of the Women's Equality
Action League. Mrs. Foreman is perhaps better known in her
position as the Executive Director of Rockefeller's Citizens
Committee on Population Growth and the American Future.
The other agencies represented were:
American Civil Liberties Union • YWCA • NOW • Planned
Parenthood • Church of the Brethern • National Council of
Jewish Women • United Church of Christ • United Methodist
Church • American Baptist Churches, USA • National Women's
Political Caucus 'Women's Lobby, Inc.
As of July 2, 1973, nine lawsuits to compel public hospi-
tals to perform abortions are already in full swing with plans
being readied for the rest of the nation. Prime movers are the
ACLU and NARAL. Current target states are New Jersey,
Massachusetts, Texas, Minnesota, Missouri, Florida, Ohio, Wis-
consin and Indiana.
The action was predicted in the January 1973 USCL
Newsletter following the evaluation of OPERATION LAWSUIT
relating to sterilization.
"Planned Parenthood School Scandal Breaks in Maryland"
On February 9, 1973 the public spotlight was turned on procedures used for obtaining secretive abortions for minors, when a
young girl developed a serious infection resulting from a saline abortion requiring that her parents be informed of the operation on
their child.
Involved in the controversy were public school personnel, Montgomery County (Md.) public officials. Planned Parenthood and
various abortion clinics.
It was confirmed that an average of 10 minor girls PER WEEK were given preliminary tests in Montgomery high schools by a
representative of the County Health Department called into the schools by either the school nurse or a counselor.
Should the pregnancy test prove positive, the girls are referred to the Planned Parenthood Association by the County Health
Department employee. Planned Parenthood then carries out the scheduling of the abortions in Baltimore and elsewhere. At no
point in the procedure are parents notified of the action up to and including the abortion fee which is paid by the county. Under
the system, members of the high school staff, teachers and nurses are given the option of referring students to parents or a minister
or doctor or school nurse when they seek contraception and/or abortion assistance.
In Maryland as of mid-1971 minors can obtain abortion, contraception and venereal disease treatment without parental con-
sent or knowledge as the result of the passage of State Senate Bill 201 .
Senate Bill 690 has been introduced which would require that persons under the age of 16 obtain parental consent before
receiving the above "services". Montgomery County curriculum on contraception and abortion if approved will begin with 13 year
olds this Fall.
Pro-life action has been lead by Parents Who Care (PWC) of Bethesda and Chevy Chase, Maryland.
70
FOREIGN NEWS
"Los Supermachos Brings Congressional Inquiry"
The funding by the Agency for International Development
(USAI D) of the blasphemous Spanish birth control comic book,
Los Supermachos which features a Mexican woman kneeling
before a statue of the Blessed Mother praying
'Little Virgin, you who conceived without sinning,
teach me to sin without conceiving.'
has prompted a Congressional inquiry into the agency's popula-
tion activities.
Congressman Clement J. Zablocki of Wisconsin has asked
for a full explanation of the matter from Dr. John A. Hannah,
head administrator of AID. Following a national press release
by the Coalition on June 30, demanding a public apology from
Dr. R. T. Ravenholt who administers the AID Office of Pop-
ulation Affairs, Dr. Ravenholt was asked for a statement by the
Washington Press. Response: No comment.
For the record, the comic book was ordered by the Pana-
manian Health and Population Ministries on Nov 15, 1972 and
funded by AIData cost of $1,100 under Title X of the Foreign
Assistance Art.
The AID grant is also under investigation by the Justice
Department based on pro-life charges of violation of Church
and State.
EVERY CONGRESSMAN AND SENATOR should be
sent a copy of the Los Supermachos cover with details of AID
funding and a request that he support a FULL Congressional
inquiry into the anti-life activities of the Agency for Inter-
national Development's Abortion- Sterilization-Population Con-
trol programs abroad. Coalition Los Supermachos reprints
are available at cost: 20 cents each. USCL No. 132.
Editor's Note: The origin of Los Supermachos is Mexico.
On December 12, 1972, the Mexican Bishops issued a Pastoral
letter on Responsible Parenthood in which they welcomed the
government's announced Family Planning Program and laid
special emphasis on the married couple's inalienable right to
decide its family's size in accordance with the concrete circum-
stances of their lives. (Full text available from the Division for
Latin America of the USCC.)
According to a ZPG report, the author of this booklet,
Lie. Octavio Colmenacres says he received a letter of congratu-
lations from the head of the family planningoff ice of the Mexi-
can government's Secretariat of Health and Assistance.
Additionally, the International Planned Parenthood Fed-
eration has its anti-life rear in full gear in Mexico and there have
been an assortment of statements on the use of Mex ican women
to test new "contraceptive" agents which will probably be
abortifacient in nature.
The Coalition thus commends the following sobering re-
flection by Anthony Zimmerman of Japan to the Mexican bish-
ops and other pro-life colleagues at home and abroad as well:
". . . in the context of today's INSTANT POPULATION
CONTROL programs, which are detonating abortion ex-
plosions all over the world, a Bishop might find himself,
sadly, the camp of pro-abortionists from the moment he
joins the anti-population clique. He might be excused
because of ignorance; but we hope that Bishops will not
be ignorant, to the detrimentand death-of the unborn.
Dreamers and naive people might still believe that it is
possible to launch a national population control policy
successfully via mass media, the manipulation of public
opinion, and economic inventives, with the expectation
that no great increase in abortions will follow; but
country after country has exploded the dream. THE
HARD FACT IS THAT ANTI-BIRTH POLICY AND
ABORTION IS A PACKAGE PURCHASE: YOU
CAN'T BUY ONE WITHOUT THE OTHER . . ."
from A Criticism of Assumptions and Objections
of the Manila Population Seminar May 9, 1973
Nagaya, Japan
"Children's Aid Society - Vanguard for the Unborn"
The Children's Aid Society and all such societies should
come forward to speak on behalf of the rights of the unborn
and the sanctity of all human life. "Let us protect the unborn,
intact and deformed. Let us protect the unborn, illegitimate
or high-born. Let us protect the unborn, wanted or unwanted.
Let us proclaim as a Children's Aid Society that we are for life
and preservation of life."
These stirring words were taken from a 34-page Brief to
the Board of Directors of the Ottawa Children's Aid Society
prepared by David Dehler of Ottawa, a legal advocate for the
unborn child.
A summary of the Brief is available from the Coalition.
(USCL Reprint No. 128-50 cents)
Retarded Patients and Sterilization and Abortion Counselling
Writing in the Canadian Family Physician, March, 1973
issue, Mr. Charles W. Smiley, the chief social worker at the
Rockwood Mental Retardation Unit of Kingston Psychiatric
Hospital, Kingston, Ontario attempts to provide some basic
guidelines to family physicians in the area of the retarded and
sterilization and abortion counceling.
The two mainareasof concern of Mr. Smiley center upon
(1) the improvement of the retarded patient's physical and
emotional health by eliminating or limiting the stress of child
bearing and rearing and (2) the PRIMARY prevention of poten
tially severe mental retardation in certain high risk pregnancies.
According to Mr. Smiley, retarded persons capable of liv-
ing in the community are almost always willing to be sterilized
or have "therapeutic abortions". If the IQ of the patient is
under 55, consent must be obtained from the family, or if no
next-of-kin is available the superintendent of the institution in
consultation with another medical person.
Among the recommendations offered are that sterilization
and abortion be recommended and be easily available for
retardates when their IQ is less than 55. This should apply also
to retardates with an IQ range of 55 to 70 where significant
emotional instability factors are present. Grounds for abortion
also include "deleterious effect" on the health of the mother
71
who must care for a retarded child. Here Smiley mentions the
new "preventative" techniques such as amniocentesis to make
"Intervention" more reliable and selective. Mr. Smiley's IQ is
not indicated in the article.
"European Birthrate Declines"
It is not advisable to permit the birthrate on the Conti-
nent to drop any lower advises Dr. Leon Tabah of the Pans
National Institute of Demographic Studies. Two factors cited
as having the most influence on birth control practices are (1)
socioprofessional status of each couple - the higher the
husband's income, the more numerous the children and (2) the
working or non-working status of the wife - difficult working
conditions outside the home for wives depress the birth rate.
(Medical World News 4/27/73)
"Mental Health and Sweden - the Malthusian State"
In People! Challenge to Survival, William Vogt, a former
President of the Planned Parenthood Federation of America
(PP WPI cites Malthusian Sweden as an example of the ideal
population control state. No doubt he must have turned thrice-
over in his grave when the Department of Social Affairs in
Sweden recently concluded that 25% of the total Swedish pop-
ulation is in need of psychiatric treatment, that alcoholism has
risen 424% in a decade; that suicide among the young and
middle-aged has almost doubled in less than 20 years; that
there is widespread dissatisfaction among young mothers in
maternity wards on how to cope with their newborns after they
leave the hospital and other problems related to young people
including drug ingestion. (L.A. Times, 4/1 1/73)
Thus while Swedish dollars flow into an assortment of
international population control schemes including the United
Nations Fund for Population Activity in order to help develop-
ing countries in their struggle against the predominance of
people, the Swedish Department of Social Affairs has recom-
mended that there be an extensive mental health campaign in
order to cure the people and relieve their stress and strains
prompted, in part at least, by their Malthusian values so ap-
propriately detailed in Vogt's anti-life classic.
S The United States Coalition for Life joins with Prince
P Juan Carlos to honor the pro-life activities of Dr. Soroa Pineda
A of Madrid.
I Dr. Pineda has recently authored "El Aborto es un Cri-
N men" (Abortion is a Crime) and is engaged in creating the de-
sign and printing of a pro-life stamp to be used throughout the
world in three languages - English, Spanish and French.
The Coalition has been in contact with Dr. Pineda and
the French "Laissez les Vivres", as well as pro-life groups and
individuals throughout Canada, Latin and South America, India,
Ireland, and England in order to form a World League for the
Defense of Lite. Our initial project is to establish communica-
tion bases in every nation of the world so as to exchange infor-
mation on such topics as international laws on abortion and
strategy for the 1974 World Population Conference. The USCL
will issue a special mailing on the 1974 World Population Con-
ference-Year in September.
We ask that you send a sampling of your newsletter and
available literature to:
Dr. Antonio De Soroa Y Pineda
Jenner, 8
Madrid - 4 Espana
London — The population of the United Kingdom increased by
only 131 ,000 last year. Births declined by an astonishing 7.7%,
while the death rate was higher than usual. (World 7/31/73)
Japan — The Supreme Court decision has hurt anti-abortion
sentiment in Japan. In June of 1972, the Diet was prepared to
pass an amendment to eliminate economic reasons for abortion,
but the move was unsuccessful since the opposition party was
blocking practically all bills before the election.
In late May, the Mainichi Daily News carried a feature,
"Lib, Pills and Morals in Abortion Discussion" based on the
current struggle for revision of the Eugenic Protection Law.
The Institute of Population Problems has stated that af-
ter the last world war there have been 8 abortions for every 10
births in Japan. Newspapers are carrying an increasing number
of stories of the desertion of newborns as well as pregnant wo-
men of seven and eight months who are trying to be talked out
of abortions and give their child to a childless couple seeking
adoption.
The revision is directed at both the economic clause for
abortion, as well as the "fetus" clause permitting about to eli-
minate defective unborn. The latter drive is being launched by
handicapped people who see the killing of imperfect beings as
being discriminatory and in violation of the equality of all men
guaranteed in the Constitution.
Women's Lib protestors have staged layins in Japanese
ministry offices stating that contraception and abortion are
necessary to give them full control of their own bodies.
Zimmerman's Works Now Available - The Coalition is proud to announce that a number of Anthony Zimmerman's (SVD. STD.)
works on population and abortion are currently being reprinted for use by pro-life researchers.
"How to Get 6,000 Abortions a Day" (USCL Reprint No. 1 16 - 50 cents)
"Population Growth Can't Be As Bad As All That" (USCL Reprint 129-90 cents)
"The Manila Population Seminar - A Critique" (USCL Reprint No. 131)
Also available: Japan's 22 Year Experience With A Liberal Abortion Law, Marriage and Family Newsletter, Box 6066,
Collegeville, Mn. 56321 - $1.25 each.
72
REFERENCE PUBLICATIONS
Research in Prostaglandins - Published by the Worcester Foundation for Experimental Biology. 222 Maple Ave., Shrewsbury, Mass.
01545 and the Population Information Program of George Washington University Medical Center, 2001 S Street, N.W. Suite 702,
Washington, D.C./No Charge.
Contains data on the clinical use of prostaglandins in fertility control research 1970-1972. The report based on studies involv-
ing endogenous prostaglandins, human tissue IN VITRO, and animals was financed by the U.S. Agency for International Develop-
ment (AID).
World Health Organization and Human Reproduction Research - Pro-life physicians will be particularly interested in the WHO's
projects relating to fertility control. Projects involving^bortifacient research, the implantation process, sperm regulation, ovulation
detection, and the sequelae of abortion and vasal occlusion.
The WHO has initiated a number of task forces in these and related areas concerning human reproduction, and has established
at least 20 reproductive research centers including one in Los Angeles at Women's Hospital, USC Medical Center (prostaglandins).
Pro-life physicians and researchers wishing to obtain additional information concerning membership on such task forces and
participation in WHO's program should write: Richard Wilson, M.D.
Human Reproduction Unit
World Health Organization
1211 Geneva 27, Switzerland
Center for Disease Control: Abortion Surveillance Report - published by the Department of HEW and available without charge
from: PHMHA, Center for Disease Control, Epidemiology Program, Family Planning Evaluation Branch, Atlanta, Georgia 30333.
Well known abortion advocates and abortitoriums make contributions to this government publication. Pro-life input is necessary
and should be sent directly to CDC Director, David J. Sencer, M.D. after reviewing samples of the report.
Abortion Research Notes published by the International Reference Center for Abortion Research, 8555 — 16th St, Silver Spring,
Md. 20910. Available on request. The Center was organized in mid- 1972 by the Washington Office of AIR/Transnational Family
Research Institute. Leading abortion advocates such as Dr. M. Potts and Dr. C. Tietze sit on the I RCAR international advisory board.
This publication is an excellent source of anti-life references and information.
Population Dynamics Quarterly — A new publication of the International Program for Population Analysis. Available on request
from the Smithsonian Institute, Interdisciplinary Communications Program, 1717 Massachusetts Ave., N.W. Washington, D.C. 20036.
(English, French or Spanish editions issued simultaneously.)
Family Planning/Population Reporter — A Review of State Laws and Policies. Published bi-monthly by Planned Parenthood. Avail-
able on request from: Center for Family Planning Program Development, 1660 L. Street, N.W., Washington, D.C. 20036. Provides
an excellent listing of current legislation related to abortion, contraception, sterilization and population control. Also included is
information on hearings, health and welfare policies, court decisions and government programs in the above areas. Editorials anti-
life bias throughout.
Population Report — Available on request from: The Population Information Program, George Washington University Medical Cen-
ter, 2001 S St., N.W. Washington, D.C. 20009. Program funded by AID. Information on a variety of topics related to fertility con-
trol including prostaglandins, abortion, and intrauterine devices. Order information by topic.
Pro- Life Materials
The Great American Stork Market Crash by Frances Freeh. Published by Liguori Publications, Liguori, Mo. 63057 $1.50. One
of the finest pro-life works on population control. The author is Missouri's representative on the National Right to Life Committee,
Inc.
The Best of Father Paul Marx, author of the classic, The Death Peddlers is now on cassettes. Topics include abortion and euthanasia.
For details write: Right to Life, 2550 Via Tejon, Palos Verdes Estates, Cal. 90274, Tel. (213) 378-5243.
Natural Family Planning editor's packet. Excellent material for newsletters and general membership. Write: Human Life Founda-
tion, Larry Kane, Director, 1776 K. Street, N.W., Washington, D.C. 20006.
Population Growth - The Advantages by Colin Clark. Find population resource book which is as readable as it is accurate and infor-
mative. A companion guide to Robert Sassone's Handbook on Population. Order both from L.I.F.E., 900 N. Broadway, Suite 725,
Santa Ana. Cal. 92701.
73
U.S. Coalition for Life was created to serve as a national and
international clearing house for Pro-Life organizations and
individuals seeking information, documentation, research
materials in the areas of population control euthanasia, genetic
engineering, abortion and related areas. Its primary function
is that of service.
The U.S.C.L, Reprint Service is designed to provide docu-
mentation and resource materials for the Pro- Life Movement
Costs include both copying and postage expenses. All reprints
are to be used as study copies only. In the case of copyrighted
materials, permission must be obtained from the publisher or
author directly, except for brief quotes which may be used with
proper credit. Portions of Newsletter may be reproduced with
proper credit
ATTENTION
New subscription rate will become effective September 1, 1973.
Individual subscription: $5.00 a year.
Organization subscription: $25.00 a year.
Bulk rate for August issue: $.50 each.
Back issues: $.25 each.
REMINDER
This is the last complimentary copy to be made available
togroupsand pro-life individuals who are not USCL subscribers.
COMING EVENTS
Special Fall issue and mailings on Population Education including:
The Rockefeller Population Packet
Harvard's Plan-A-Fam classroom game
The Anti-Lifers Invade the Classroom
as well as the latest information on World Population Year - and Conference 1974.
74
Vol. 3 No. 6
Spring, 1974
Randy Engel, Editor
Published by: U.S. Coalition for Life Educational Fund • Box 315, Export, Pa. 15632
S. 1708 - H.R. 11511*
A PROLIFE GUIDE TO FEDERAL ANTILIFE ABUSES
Coalition Testimony on H.R. 11511 - March 8, 1974
INTRODUCTORY REMARKS ON S.1708 AND H.R. 11511
Mr. Chairman: Members of the subcommittee: I am Randy
Engel, Executive Director of the United States Coalition for
Life, and lam offering this testimony on HR 11511, the Health
Revenue Sharing and Health Services Act of 1973 on behalf of
the United States Coalition for Life, an international research
agency and clearing house on all aspects of population control
and so-called government "family planning" legislation and
programs. My remarks will be directed primarily to Title III.
The Family Planning and Population Research Act of 1973.
Background
In order that my testimony be viewed in its proper context,
I wish to comment briefly on the manner in which the public
hearings on HR 11511 were conducted and my general obser-
vations and experience with its companion bill in the Senate.
S. 1708, the Family Planning and Population Research Act of
1973. now before the Labor and Public Welfare Committee.
The interest and concern of the United States Coalition for
Life in the Senate and House version of the Family Planning
and Population Research Act of 1973 and similar measures is a
matter of public record.
On May 8, 9 and 10. 1973 the Subcommittee on Human
Resources of the Senate Committee on Labor and Public
Welfare held public hearings on HR 11511's companion bill
S. 1708.
As with the similar hearings on family planning — popula-
tion control such as the pioneer Gruening Committee hearings
on S. 1676 of the mid-60's and Cranston hearings on S.J.R.
108 calling for a national policy of "population stabilization",
the hearings on S. 1708 were carefully orchestrated so as to
produce an overwhelming record in favor of continued and
expanded federal family planning-population programs.
On the afternoon of May 10, 1974, the last day of the
hearings, I was permitted approximately twelve minutes of
hearing time to present an oral summary of my testimony for
the U.S. Coalition for Life as part of a "pro-life" panel of
approximately one hour duration.
My full testimony consisted of a summary of violations of
the 1970 Family Planning and Population Services Bill
(Tydings Act) by governmental and private entities and a
documented brief in support of the charges which was given to
Senator Alan Cranston, at the conclusion of my oral presenta-
tion, for inclusion in the final record.
Gentlemen, the record for S1708 hearings have been
published. I draw your attention to the fact that not only
was my documentation excluded but that there is no indication
that such documentation is contained in the files of Senator
Cranston's subcommittee office. I am sure you would welcome
Senator Cranston's explanation on this matter should he chose
to reply.
CALL FOR CONGRESSIONAL INVESTIGATION
My testimony on S. 1708 was designed not only to sub-
stantiate charges of violations of the Tydings Bill but moreover
to provide the impetus for a full Congressional investigation
of the multitude of abuses of government population control
programs which run the gamut from abortifacient research to
violations of civil and constitutional rights, from fertility
control experimentation on the poor to promotion of the
Sangerite credo and others.
Since my appearance before Senator Cranston last year,
there have been three major events to support such an investi-
gation of the entire spectrum of federal family planning-popula-
tion control programs, namely (1) the involuntary sterilization
of two black girls in Montgomery, Alabama and welfare women
in Aiken County, South Carolina, (2) the National Institutes of
Health investigation and debate on fetal experimentation and
(3) federal grand jury indictment of Louisiana's Birth Control
Czar, Joe D. Beasley, M.D. for alleged mishandling of $12.2
million in federal family planning grants.
"As of May 20, 1974 H.R. 11511 (incl. Title III)
has been withdrawn and H.R. 14214 (Title II - the
Family Planning and Population Research Act of
1974) offered as a substitute bill. It is scheduled
to go before the full House Committee on Interstate
and Foreign Commerce for markup. No hearings are
scheduled by Rep. Rogers' Subcommittee on Public
Health and Environment.
75
Thus far Secretary of Health, trocation and Welfare
Casper Weinberger has chosen to evade a Coalition request for
an impartial investigation, referring the matter instead of the
office of Louis Hellman, Deputy Assistant Secretary for
Population Affairs.' J Likewise, Senator Henry Jackson of
the Subcommittee on Governmental Activities has refused to
take up the matter.3 We are currently exploring other avenues
including of course you. Representative Rogers, as both
sponsor of HR 11511 and chairman of the Subcommittee on
Public Health and Environment. So much for S. 1708.
Now let us turn briefly to the matter of public hearings on
HR 11511 held for six days beginning on Thursday, February
14th and concluding on Friday, February 22, 1974. As I
mentioned earlier, our interest in bills related to family planning
and population control are a matter of public record.
On November 1, 1973 I received a reply from clerk W. E.
Williamson of the Committee on Interstate and Foreign
Commerce to my request to testify at future hearings related
to federal family planning programs including H.R. 3381
(Mr. Dellums).4
Similarly on November 5th I received a communication
from Lee S. Hyde, M.D. also a committee staff member
confirming hearing information on H.R. 6021 (Mr. Dellums)
and H.R. 6139 (Mr. duPont). 5
Additionally I understand that members of Life Lobby Inc.
met with Representative' Rogers on January 22, 1974 and
expressed an interest in testifying at future sub-committee
hearings on family planning and related measures. Their names
were to be added to the clerk's register.
How is it then, that with the exception of Msgr. McHugh of
the USCC, neither the U.S. Coalition for Life, or Life Lobby
nor any other independent pro-life group was informed of the
hearing date or invited to give testimony on H.R. 1 1511 while
a litany of well-known anti-life agencies including Planned
Parenthood and Zero Population Growth were given an oppor-
tunity to air their views on this piece of legislation. I believe a
detailed explanation of the reason for omitting pro-life
groups' testimony at the public hearings should be entered by
the Subcommittee Chairman, Rep. Paul Rogers and Committee
Clerk Williamson, since there appears to be some disagreement
as to who is responsible for the "oversight". Such an explana-
tion is necessary to dissipate fears that the hearings were
"rigged" so as to make an overwhelming case for continued
and expanded family planning and population control programs
via H.R. 11511 or the Administration bill sponsored by Javits
in the Senate (S. 1632) and to silence the opposition to such
measures.6
I hope this background information will be helpful to all
subcommittee members and that it will provide a suitable
backdrop for my remarks on H.R. 1 1 51 1 .
TITLE III - THE FAMILY PLANNING AND POPULATION RESEARCH ACT OF 1973
The official position of the United States Coalition for Life — in principle and in practice — is one of opposition to Title III — the
Family Planning and Population Research Act of 1973 and all similar measures which feed the ever expanding population control
bureaucracy of the Federal Government leading to a host of anti-life programs and practices. Such activities continue to flourish
even amidst specific congressional legislation designed to curb such abuses.
I welcome this opportunity to highlight some of the more
gross violations of the Tydings Bill and to support my charges
with the necessary documentation. So that I may be assured
that my documentation will not meet with the same fate as
the documentation provided for S. 1708, I have attempted to
keep such material to the minimum needed to substantiate my
charges. Additional documentation of footnoted materials is
available to both the House Interstate and Foreign Commerce
Committee as well as the Senate Labor and Public Welfare
Committee.
VIOLATION OF ABORTION PROHIBITION AMENDMENT
The 1970 Family Planning and Population Service Act
(P.L. 91-572) contained the following provision:
(Title X. "Sec. 1008 None of the funds appropriated
under this title shall be used in programs where abortion is
a method of family planning.")
The Conference Report accompanying the FY 1972 HEW
Appropriations Act (P.L. 92-80, 92nd Cong.), 1st Sess. (1971)
expressed the following intent:
"The Committee of Conference is agreed that in population
research, the prohibition in Title X of abortion as a method
of family planning should not be construed so as to prevent
scientific research into the causes of abortion and its effects
H.R. Rep. No. 92-461, 92nd Congress, 1st Sess. 8(197!)."
The question of violation — of the spirit and letter of the
Abortion Prohibition Amendment therefore, involves three
basic criteria.
First, the definition of abortion as used in the amendment.
Second, the overall intent and language of the abortion
prohibition amendment
Third, the overall intent and language of the Conference
Committee Report section on "scientific research . . ."
First — At the time of the passage of the Abortion Prohibition
Amendment the following definition of abortion by the
Department of HEW was known to be in effect.
Abortion "all the measures which impair the via-
bility of the zygote at any time between the
instant of fertilization and the completion of labor
constitute in the strict sense, procedures for
inducing abortion." (U.S. Dept. of Health, Educa-
tion and Welfare, Public Health Service, publica-
tion 1066 (Washington, 1963), p. 27)
No distinction is made between surgical techniques and
abortion accomplished by drugs or devices. Thus, it would
appear that any drugs or device whose primary mode of action
57-782 O - 76
76
was abortifacient in nature would be preceded from family
planning programs in which abortion was prohibited.
Thus the Abortion Prohibition Amendment posed a dilemma
for those who wished to incorporate abortion measures (parti-
cularly non-surgical ^TCthods) into family planning programs
funded under Title X, and at the same time desired to avoid
charges of violating the prohibition.
REDEFINING ABORTION
The impass was resolved by a re-defining of abortion and
related terms by the Department of HEW.
In November 1973, Family Planning Digest, a publication
of the Bureau of Community Health Services Administration,
U.S. Dept. of HEW, edited by Planned Parenthood - World
Population, published "A Glossary of Family Planning Ter-
minology."
The glossary was approved by the National Family Planning
Forum in May, 1973 and was developed by the Forum's
Committee on Terminology chaired by Dr. Louise B. Tyrer of
the American College of Obstetricians and Gynecologists.
Other Committee members included Dr. Lu Davis (N.J.), Dr.
Theodore Scurletis (N.C.), Dr J. King Seegar (MD.) and
Frederick S. Jaffee of P.P. - W.P. (N.Y.)
The glossary includes the following terminology:
Conception - Implantation of the blastocyst. Not synonymous
with fertilization (from Obstetric Gynecologic Terminology,
American College of Obstetricians and Gynecologists).
Fertilization - Union of the male sperm cell and the female
ovum.
Pregnancy - State of a female after conception until termina-
tion of gestation.
Abortion — Expulsion or extraction of all (complete) or any
part (incomplete) of the placenta or membranes without an
identifiable fetus or with a live born infant or a stillborn
infant weighing less than 500 gm. In the absence of known
weight, an estimated length of gestation of less than 20
completed weeks (130 days or less), calculated from the
first day of the last normal menstrual period may be used.
Abortion is a term referring to the culmination of the birth
process before the twentieth completed week of gestation.
Fertility Regulation — Medical and nonmedical techniques that
enable individuals to engage in voluntary planning and action
to have the number of children they want, when and if
they want them. These techniques include contraception,
infertility diagnosisand treatment, abortion and sterilization.
Similarly, on November 16, 1973, the National Institute of
Health of the Department of HEW published "Protection of
Human Subjects" in the Federal Register (Vol. 38, No. 221).
The NIH glossary included the following definitions:
Pregnancy - encompasses the period of time from implanta-
tion until delivery . . .
Fetus — means the product of conception from the time of
implantation to the time of delivery from the uterus.
Having then re defined conception and pregnancy as begin-
ning with implantation rather than fertilization, early abortion
techniques which go under the euphanism of "menstrual extrac
tion" or "hormonal interception"7 or "post-conceptive fertility
control8 or abortion achieved by drugs such as Diethylstil-
bestrol (DES) (Morning-after-pill) or by devices such as the
IUD9- '0. II are permitted to be funded under Title X,
Sec. 1008.
PLANNED PARENTHOOD AND TITLE X FUNDING
Secondly, let us examine the language and intent of the
Abortion Prohibition Amendment.
On February 14, 1974, a memo was sent from the Education
and Public Welfare Division of the Congressional Research
Service of the Library of Congress to the Honorable John H.
Dent (acting under a request from the U.S. Coalition for Life).
The substance of the memo centered upon the funding of
Planned Parenthood - Los Angeles under the Tydings Act
(1970 Family Planning and Population Services Act).12
The memo reads in part, ". . . please note that the question
pertaining to P.P. - L.A.'s performing abortions or providing
abortion counseling is not mentioned. Since P.P. - L.A. is
funded through the Tydings Act. SUCH ABORTION RELAT-
ED ACTIVITIES AS MENTIONED ABOVE ARE PROHIB-
ITED BY LAW. Therefore, that particular question is not
germaine." (emphasis added)
I believe that the CRS memo accurately reflects both the
letter and the spirit of the Abortion Prohibition Amendment.
The question of abortion-related activities of PP LA IS
germaine since Planned Parenthood - Los Angeles engages in
such activities, while receiving funding under the Tydings Act.
I ask that the contents of the attached article "The Abortion
Kick-backs" be examined with great care by this subcom
mittee. Reporter, Roger Rappaport of New Times makes two
serious charges against PP-LA. I quote in part
"Planned Parenthood- Los Angeles was violating the
terms of its federal grant in two ways. First, it was receiving
a second payment for "psychological testing and evaluation"
of abortion patients, not permissible under the terms of its
grant. Second, it was failing to report this income to the
federal government. Both these violations could result in
termination of the government funding. More important, if
there was appropriation of unreported revenue by an execu-
tive of a federally funded organization, this could lead to
felony prosecution."
The Coalition believes that it is the responsibility of this
subcommittee, prior to reporting HR11511, to thoroughly
investigate this charge of abuse and misuse of Title X funds and
if necessary subpoena the records of PP-LA officials and the
evidence of Mr. Rappaport as outlined in his article.
However if such an investigation is to have any meaning at
all, then PP-LA's activities must be viewed in the larger context
of the Policies and programs of the parent agency — Planned
Parenthood - World Population, New York City.
The role of Planned Parenthood-World Population in
abortion is candidly discussed by the agency's medical director
George Langmyhr, M.D., in an article by the same name written
in 1971. <4 I enter this article in full as part of my testimony.
77
Langmyhr namely (1) that "most professionals and volunteers
J associated with Planned Parenthood have accepted, for a long
time, the necessity of abortfon as an integral part of any
complete or total family planning program,'' since P.P. clinic
..personnel cannot avoid dilemmas posed by legitimate method
'failure, or any type of unwanted pregnancy", (2) "that while
P.P. as a non-profit, tax-exempt agency is specifically unable
to lobby or overtly attempt to achieve legislation reform";
. P.P. 's volunteers andprofessionals such as Or. Alan Guttmacher
, can actively participate in advocating abortion law change and
• (3) that P.P. helped prepare various legal briefs which have
; been presented to the courts as a means of effecting change.
i-Dr. Langmyhr cites one major effort in California regarding
. the ability of a minor to consent to an abortion.
Dr. Langmyhr substantiates Planned Parenthood's long-
standing involvement in programs of "abortion information,
[-counseling and referral "which were "necessarily unpublicized."
>te also details quite explicitly Planned Parenthood's role in
tabortion "reform" in California and the establishment of a
I subsidiary Aboritorium unit known as the San Francisco
^Center for Legal Abortion. Likewise, P.P.'s abortion-related
activities are highlighted in Colorado and New York City.
". Details are also provided on the Syracuse Planned Parenthood
Abortion Clinic.'5
- Dr. Langmyhr concludes with the hope that abortion will
tfcecome even more available and that Planned Parenthood
•"supports repeal of "outdated abortion laws."
Recently Planned Parenthood set up an Abortion Service
Loan Fund and Technical Assistance Program of $1 million for
the purpose of initiating abortion services or expanding existing
facilities.
According to Alfred S. Moran, executive vice president of
Planned Parenthood, NYC, out of 172 P.P. affiliates providing
medical services, eight are performing abortions and 12 others
are setting up services and most do abortion referrals. He
expresses sadness at the fact many P.P. affiliates have not been
more aggressive in providing low cost, non-profit clinics in
their communities. (from "Abortion — One Year After
Supreme Court Decision", Contemporary Ob/Gyn Jan. 1974,
pp. 26-40.I
Planned Parenthood's basic tenet that abortion is an impor-
tant aspect of total "family planning" is spelled out in its
Guidelines for Pregnancy and Abortion Counseling issued by
the National Medical Committee, PP-WP.16
In the Pljnn^^arenthnod Nm York City brochure
outlining its Family Planning Centers we note that in 1971
PP/NYC opened "the first large scale comprehensive family
planning center in the U.S. As such, it will be a prototype . . .
and will stimulate the conversion of so-called abortion clinics
into facilities that will provide comprehensive birth control
services, not only abortion ... the facility is designed to
perform 8,000 to 10,000 early abortions a year . . ."17
The latest P.P.-W.P. letter form carries a statement of
purpose which reads in part, to provide leadership
"in making effective means of voluntary fertility control,
including contraception, abortion and sterilization, available
and fully accessible to all. "1 8
Mr. Chairman, members of this subcommittee — Does
Planned Parenthood believe and incorporate into its programs
and policy, abortion, as a means of family planning? The
answer clearly is yes. Does Planned Parenthood and its
affiliates receive extensive funding under Title X. The answer
is clearly yes. I would ask at this point that Rep. Rogers enter
into the record a complete financial audit of PP-WP and its
affiliates, receiving funding under this title, i.e. Title X of the
Tydings Act, by the General Services Administration to
substantiate my statement.
And lastly - does such funding constitute a violation of the
contract of such agencies receiving funding under the Tydings
Act either directly or indirectly through HEW Family Planning
Regional Councils? We believe the answer must again be yes.
Do you, Mr. Chairman and members of this subcommittee
concur? If so, how would you amend Title III of HR 1 1511 to
prohibit such violations? If not, why not?
I would like to interject at this point the related articles
18 and 19 which discuss the relationship between abortion and
contraceptive practice since I understand previous witnesses
have argued that increased federal funding of contraception
and sterilization programs will decrease the need for abortion.
Such statements are made in historical vacuum since experience
shows that while abortion and contraceptive programs are
mutually competitive, they are also mutually stimulating.
The end of this is usually sterilization. Thus if the federal
government goes with the business of birth prevention on the
massive scale in which it is currently engaged, it will be drawn
deeper and deeper into programs of massive abortion and
sterilization and ultimately euthanasia. The latter to deal with
a rapidly aging population.
ABORTION RESEARCH LOOPHOLE
Let us proceed to point three, regarding the language and
intention of the House Conference Report relating to "scientific
research into the causes of abortion and its effects."
The critical issue here is whether or nof this clause permits
the funding under the Tydings Bill of the research, develop
ment and clinical testing of new abortion techniques since a
technique is neither "a cause" nor "an effect".
In a letter dated Jan. 20. 1972 to Senator Richard Schweiker,
Dr. Louis Hellman states there is "no Federal policy concerning
abortion research" and ". . . research to increase the safety of
the procedure is a proper activity." He admits however that
abortion research is funded through the Center for Population
Research, NIH, Dept. of HEW.
In a letter dated February 10, 1972 from Philip Corfman,
M.D., Director of the Center for Population Research to
Congressman John G. Schmitz, Dr. Corfman gives a slightly
different reply on the question of whether or not the Abortion
Prohibition Amendment of Title X covers clinical abortions
and the research and development of new abortion techniques.
I submit the three letters for the record. i0- 21' 22
78
The funding of research, development and clinical testing of new abortion techniques is extensive and well-documented. Regret-
ably, most Congressmen and Senators are totally ignorant to the extent of the committment of the Federal Government to aggres-
sive chemical warfare on unborn children and to the relationship between federal agencies and drug firms which reap vast financial
gain from the marketing of abortifacient drugs and devices.
I wish to enter into the record a letter dated March 1,
1972 from the Senator from Nebraska, Roman L. Hruska to a
Coalition member regarding the role of the Federal government
in the development of chemical "prostaglandins" for induced
abortions. 23
According to Sen. Hruska he had been in touch with HEW
on this matter and, "Federal funds are not supporting the
research into prostaglandins, and the use of this drug has not in
any way been approved by the Federal Government." He
concludes with the thought that his constituent does not have
to be concerned about a problem that "doesn't exist".
For the benefit of Sen. Hruska and others who labor under
similar misinformation, I take this opportunity to set the
record straight.
First, federal funds, that is tax dollars including funds from
the Tydings Bill, have in fact been used to research, to develop
and to carry out clinical testing of prostaglandins for the pur-
pose of induced abortions. Secondly, the Food and Drug
Administration, at the time of Sen. Hruska's letter, had approv-
ed the clinical testing by the UpJohn Company of Kalamazoo,
Michigan.
Evidence to support these charges are found in the 1971
and 1972 Inventory of Federal Population Research prepared
in the National Institute of Child Health and Human Develop-
ment by the Center for Population Research headed by Philip
Corfman, M.D. I include for the record the pages of these
reports 24 giving full details on prostaglandin research and
clinical testing by both the NIH and the Agency for Interna-
tional Development, as well as published articles on such
federally funded research and clinical testing of prostaglandin
abortions which usually result in the delivery of live babies,
whose skin may then be used as a medium for tissue cultures 25
and future experimentation.
TAXPAYER UNDERWRITES UPJOHN ABORTION RESEARCH
I draw your attention in particular to those prostaglandin
contracts made directly to UpJohn Researchers specifically -
(Da four year contract from the NIH in 1969 to John
Johnston of the UpJohn Company. Total project cost:
$200,587. HD 92208
(2)a 1971 contract to Kenneth Kirton of the UpJohn Com-
pany for $41,91 3. HD 12224
Ola 1972 contract to Kenneth Kirton of the UpJohn
Company for $50,247 HD-12224
(4|a 1972 contract to J.W. Wilks of the UpJohn Company
for $88,140. HD-92208
On November 26. 1973 The Food and Drug Administration
approved Prostin F2 for "Therapeutic Abortion". The
application had been filed by the UpJohn Company, Kalama-
zoo, Michigan. 26 According to Medical World News/Dec.
28, 1973 the abortifacient drug will be used primarily in
university based hospitals.
To date the best known of these clinical testing areas are the
University of North Carolina School of Medicine, Chapel Hill
(Dr. C.H. Hendricks and Dr. William E. Brenner) and the
Washington University Medical School. St. Louis (Dr. Arpad I.
Csapo.) These institutions and these key researchers have all
been recipients of federal research grants in the area of prosta-
glandins for induced abortion.
The research office of the U.S. Coalition for Life can pro-
vide in addition to the enclosed two articles, 27- 28 at least
a dozen grant-contract descriptions of federally funded (AID
and NIH) abortifacient research to this subcommittee.
The American taxpayer has funded these anti-life institu
tions, these researchers and the UpJohrf Company (who provid-
ed the abortifacient for testing) thus contributing to the speed
with which the abortifacient product was approved by the
FDA for marketing on an international scale.
Yet these tax funds were used without any legislative
authority and in spite of the spirit, if not the letter, of the law.
We recommend, therefore, that in the future Congress
specifically prohibit such funding through concrete legislative
action and exert similar curbs on the financing of abortifacient
and sterilization clinical testing and drug-company related
activities, particularly research.
Clearly, family planning legislation, whether under this Title
or others, requires that anti-abortion prohibition sections be
both comprehensive in their scope (i.e. they exclude aborti
facient research and clinical testing and the funding of
organizations such as Planned Parenthood-World Population
and its affiliates which include abortion and related activities
as part of comprehensive family planning services) and explicit
in intent as well as language.
As a means of dramatizing the need for more stringent
legislation, in the light of the large number of anti-life HEW
(and AID) officials which dominate this Administration, I will
briefly highlight our agencies experience in researching a single
NIH abortion research contract.
NIH - DEVELOPMENT OF ABORTION TECHNIQUES
The contract is listed on page 46 of the 1972 Inventory of
Federal Population Research, under the heading of Zygote
Transport, Pre-implantation Development, and Implantation.
Numbered 178 - the contract is titled STUDY IN EXPERI-
79
MENTAL METHODS INTERRUPTINfJ^^EGNANCY (Rats.
Rabbits) HEW-NIH Contract HD-02306. The three year con-
tract (6/70-6/72) totaled $81,700 and was awarded to Dr.
Robert L. Brent of Thomas Jefferson U. in Philadelphia.
A Playboy Forum 1972 news brief carrying the title "Zap,
You're Aborted" and . datelined Philadelphia, notes that
"microwave radiation has been usjd to terminate pregnancies
in rats" and that the technique might be applied as safe, quick
and "noninvasive" abortifacient for humans. The article men-
tions Dr. Brent's experiments using a modified standard
microwave oven to raise the temperature of a pregnant female
rat's uterus resulting in the resorption of the embryo with no
apparent harm to the mother.
Earlier, the March 26, 1971 issue of Science in an article by
Robert Gillette on the alleged inadequacies of federal popula-
tion funding noted that the NIH Contraceptive Research
Branch was currently funding a project "to explore the use of
microwaves and ultra-sound in performing abortions."
Hellman's Answers - In a letter dated April 12, 1972 to the
Honorable Bob Mathias, Dr. Louis Hellman stated that the
(Brentl study is being conducted on rats and rabbits "in order
to discover if slight increases in temperature of the pregnant
uterus, induced by microwaves, affect fetal survival," and to
learn if microwaves have a "deleterious effect on the fetus".29
Corfman Answers - In a letter dated March 28, 1972, Dr.
Philip Corfman replies to Mr. Christopher Kolb, President of
the University of Maryland Right to Life Committee. According
to Dr Corfman. the (Brent) study is designed to gain know-
ledge "unrelated to abortion" such as the dangers, if any, of
microwave ovens . . . conceivably, then, this research would
contribute to assuring healthier pregnancies and avoidance of
hazards during pregnancy."30
The CRB Director concludes that "improvements in abor-
tion techniques are within the purview of this Institute's man-
date to support research on questions of public health.
The November 1973 issue of Contraception carried an
article entitled "Ultrasound : It's Potential Use for the Termina-
tion of Pregnancy" by Melvin Sikov of Battelle, Pacific
Northwest Laboratories. 31
Under the subtitle. Effects of Ultrasound on the Conceptus,
Sikov notes that "other forms of radiant energy, such as micro-
waves, recently have been shown to produce embryonic
death" (12).
Footnote 12 is Brent, R.L. Franklin, J.B. and Wallace,
J.D., The interruption of pregnancy using microwaves. Tera-
tology 4:484, 1971.
Clearly, the primary purpose of the Brent contract was to
explore new techniques ultimately designed to kill the fetus or
embryo of a pregnant woman desiring an abortion.
Carl Djerassi, President of the Syntex Corporation, Palo
Alto, California in the Jan. 1972 issue of Bulletin of the Atomic
Scientists noted that he was happy that two important federal
funding agencies (AID and CRB-NIH) seem to have found
ways to circumventing Sec. 1008 of the 1970 Family Planning
Act . . ." Louis Hellman denies such action. Our research
supports Prof . Djerassi's premise. If such federal funding under
the Tydings Bill is to be ended we will need prohibition legisla-
tion which is virtually air-tight in both intent and language.
KASION OF PRIVACY
The second major area of concern of the U.S. Coalition for
Life related to current federal family planning abuses centers
upon the dangers to civil and constitutional rights posed by
data banks and similar information gathering and monitoring
techniques used by HEW.
The omniscient, omnivorous memory of computers which
store vast information of all kinds on the everyday activities of
citizens, has in recent years become an increasing concern of
Congress and the public.
Daily, new provisions are being adapted at all levels of
government to curb undue encroachment on the privacy of
individuals.
Yet, despite this new awareness to the potential dangers o
data bank systems, there has been no challenge to the presence
of Big Brothers in the boudoir. Indeed there is little evidence
which might lead one to suspect that anyone even knows he is
there.
From a practical point of view, HEW population control-
family planning data banks fulfill the need to monitor,
coordinate, administer and evaluate current federal and state
programs. All agencies receiving federal funds are required by
HEW to submit data which includes a sexual history of each
client.
From a philosophical point of view, such data banks reflect
the desire of population technocrats to control and regulate
even the most intimate activities of the populace. Rough Beast
editor, Gary Potter explains: ". . . order in a Technocracy
requires a control so complete that even the most intimate
acts, and their consequences must be regulated. Already few
acts are performed entirely in privacy. The one that still is
generally the most intimate of all, the act of love, an act which
the planners of perfection must control, not only because
unlicensed offspring would disrupt the Fiscal Year's projected
availability of goods and services, but also, and perhaps more
importantly, because the passion which an unauthorized act of
any sort would imply is the very antithesis of the thing which
is the most essential of all to perfection, careful planning."
Enclosed is a sample of computer data forms. In addition to
familial and medical information, data on the sexual practices
of the client is required.
The Provisional Report Form for Family Planning Services
of the National Center for Health Statistics, PHS, Dept. of
HEW32, for example includes:
Coital Frequency Age at First Coitus
Date of Last Coitus Sexual Compatibility
I (Satisfactory I lUnsatisfactory
Partner's Attitude Towards Contraception
( ) Cooperative ( ) Uncooperative
( ) Doesn't Care ( ) Unaware of Usage
Other information on attached forms 33- S4 includes contra-
ceptive method of choice, nature of referral and counseling,
number of pregnancies, etc.
In general practice, family planning personnel and physicians
Do Not inform their patients or clients that such information
will be fed into a centralized data bank.
Such questionable practices are justified on the basis that
80
the client is given an identification nunwf assuring anony-
mity. Yet are not similar "precautions" used in other data
systems which have been attacked as unconstitutional'
In some cases identification numbers do not offer anony-
mity since the ID number is the client's social security number.
Tennessee employs such a system of identification in its
statewide data system for family planning.
"Patient identification. Both the patient's name and a
unique identification number are recorded on the data form.
In order to evaluate continuity of care, the patient retains
the same number in whatever counties or clinics she receives
service.. In Tennessee, the patient's number is her social
security number. When a new patient does not have a
social security number, the clinic staff is instructed to
apply for one and to give the patient a temporary number. "35
Under the Tennessee system, "delinquent" clients who do
not respond to a computerized follow up visit are placed on a
home visitation list Wra scheduled visit by a community social
worker or public health nurse.
I draw the attention of this subcommittee also to the
enclosed national birth survey of the PHS, Health Services and
Mental Health Administration.
Note the patient's name is clearly identified. Note that the
survey requires a doctor to divulge his patient's contraceptive
practices.
Do these practices involve civil and constitutional violations?
Do these practices involve a breech of the patient-doctor
relationship? Are these practices a violation of privacy of
individual citizens? These are basic questions this subcommittee
must ask.
I ask therefore that this subcommittee include in this
hearing record a detailed explanation of the Federal Family
Planning Data System of HEW and legal opinions as to the
constitutionality of such practices by federally funding family
planning units.
ABUSE OF GOVERNMENT INFORMATION
There are a number of federal family planning practices which u
programs of population control particularly among welfare clientele.
alve the use of federal agency's mailing lists for questionable
The following history of an OEO CAP grant No. CG-4813
illustrates the need for legislation to prevent further abuses
using federal agency listings.
Beginning in May, 1971 the Office of Economic Oppor-
tunity as an "anti-poverty" project awarded over $100,000 in
family planning funds to Population Services, Inc., a Chapel
Hill. North Carolina agency, for the purpose of increasing use
of condoms among sexually active, young, unmarried low
income males in urban and rural settings.
The creature of Dr. Timothy Black of England and
Philip Harvey, formerly of CARE, Population Services, Inc.
was begun as a non-profit corporation in Jan. 1970.
In order to get tax-exempt status to qualify for funds for
research in birth control, the agency split in two -
Population Services Inc. - the non-profit research branch
and Population Planning Assoc. - a commercial retail
firm buying and selling birth control devices.
During the first year of OEO - Community Action
Program contract, 25.000 individuals between the ages of
13 and 20 were contacted.
The local OEO Community Action Agencies and commercial
sources supplied mailing lists.
The mailings were unsolicited.
A typical mailing included such questions as "Has one of
your friends made a girl pregnant recently?" or a similar question
on venereal disease. The letter, the context of which encourages
premarital sexual activity, reassures the reader tha( such
consequences are avoidable. Population Services promises that
the name of a local cooperating druggist or a condom stamp
coupon worth $1.00 from Condom Associates (Population
Planning Associates?) will be sent to those responding favorably
to the letter.
Of the 25,500 young men contacted, 2,260 responded
favorably. These were sent materials (condoms and drug store
locations) in unmarked envelopes. Eighty-six letters were
returned requesting no material be sent. In no case did
Population Services solicit parental consent.
The July 26. 1972 application, date beginning Aug. 1, 1972
and ending Jan. 31, 1974 of Population Services for an
additional $152,274 includes in its description plans to reach
"coaches and other supervisory personnel" in condom out
reach programs for young men.
I understand that the Population Services, Inc. program
has been terminated due to disappointing results of the pilot
project.
I am sure however that similar 'family planning' schemes
will be approved in the future.
This particular grant involving low-income young persons -
primarily blacks, and all below the age of 21 brings to the
forefront some very disturbing questions.
Could the unsolicited action funded by the OEO be held as
action contributing to the delinquency of minors?
Why do young, unmarried males need "family planning"
assistance?
Did the unsolicited action of minors as young as 13, violate
parental rights?
I ask that this subcommittee enter into the record, answers
to the above questions and legal opinion as to the possible
violations of parental authority incurred in the carrying out of
this grant.
81
ABUSE OF
HRALLY FUNDED FAMILY PLANNING MN CENTERS"
The following report on Planned Parenthood Teen Scene of
Chicago. Illinois combines a number of abuses of federal family
planning funds, some of which have already been pointed out
in earlier portions of my testimony.
Teen Scene is operated by Planned Parenthood of Chicago.
The program began in 1971 with an HEW funded grant
totalling $259,000 (FY 1961, $69,000. FY 1972 $190,000).
The mechanism of funding was the Illinois Family Planning
Coordinating Council, a tunneling agent for most of the Tydings
Act funds.
In a letter of Nov. 1, 1972 to the Honorable Richard S.
Schweiker, Carl S. Shultz, M.D.. then Director of the Office of
Population Affairs, outlines the basic programs of Teen
Scene. 37, 38
Dr. Shultz notes that the law in Illinois specifically allows
contraceptive information and services to be made available
to individuals aged 16 and over without parental consent.
According to the HEW official "Teen Scene" activities
include "pregnancy testing and contraceptive information".
Pregnant girls requesting further "counseling" after examina-
tion are referred to a "Teen Scene" social worker. Dr. Shultz
states however that Teen Scene does not give counseling on
abortion. Instead, the girl is referred to "CARES", the
Council on Abortion Referral and Evaluation Services, an
agency not funded by HEW Dr. Shultz states that there's no
followup by "Teen Scene" of patients referred to CARES.
According to Dr. Shultz the emphasis of "Teen Scene"
counseling is to encourage responsible teenage sexual behavior.
Dr. Shultz denies that any Tydings Act funds tunneled via the
Council are used for abortion related purposes.
The U.S. Coalition for Life does not agree with Dr. Shultz's
evaluation of Teen Scene activities. We believe that the
Abortion Prohibition Amendment of the Tydings Act has in
fact been violated in the case of "Teen Scene".
Let us look more carefully at CARES. Dr. Shultz's letter
attempts by implication, that there is no direct link between
"Teen Scene" and CARES.
Fact Number One — CARES, a five-state abortion referral
service, established in July 1971 is located at 185 N. Wabash
Ave.
"Teen Scene" is located at 185 N. Wabash Ave.
Planned Parenthood, Chicago is located at 185 N. Wabash
Ave.
CARES was established by Planned Parenthood, Chicago
(which administers "Teen Scene") in conjunction with the
Clergy Consultation Service on Problem Pregnancy. According
to P.P. Executive Secretary, Benjamin Lew the goal of CARES
is to keep the quality of abortions high and the costs low.
CARES arranges for a "package" deal sending most women
to N.Y.C.
In addition to CARES, Planned Parenthood, Chicago,
recipient of both HEW and AID funds, established itself in
1972 as an abortion co-ordination agent for the purpose of
arranging for N.Y. abortions for Chicago coeds.
Fact Number Two — In the Spring of 1972, an 18 year old
resident of Chicago made a pre-arranged call to Teen Scene to
"arrange for an abortion for his 15 year old girl-friend."
He was told that he must make his own plane reservations on a
flight which would be pin-pointei by Teen Scene and he must
bring in a signed notarized statement of responsibility by
anyone 21 years or older. He was then told that Teen Scene
would arrange for a limousine to meet the girl at the airport
in New York, take her directly to the clinic where an abortion
would be performed and she would then be transported to the
airport to return to Chicago the same day.
It should not be too difficult a task for this subcommittee
to substantiate Teen Scene's abortion package for minors by
questioning Teen Scene administrators and Staff personnel.
(Note: In 1971-1972 abortion was legal in Illinois to pre-
serve the life of the mother — hence the need for out-of-state
abortion referrals of the nature mentioned above).
Fact Number Three — "Teen Scene" seminars are open to
children as young as 13 years of age. Girls are charged $5 for
instruction, contraceptive devices and an examination. A
primary "educational method" is the "rap session". (We will
upon request, supply this subcommittee with a transcript of
the nature of P.P. "rap sessions" for young people).
Fact Number Four — According to a Teen Scene brochure,
objective No. 2 of the project is "To eliminate unwanted
pregnancies by making effective means of family planning, in-
cluding contraception and voluntary abortion, available to all."
"Teen Scene", Chicago is one of many Planned Parenthood
programs catering to minors.
Sadja Goldsmith, M.D. is Director of Teenage Services of
Planned Parenthood/World Population — San Francisco. Dr.
Goldsmith is well known for her abortion techniques and has
co-authored a number of articles on early abortion methods.
According to Dr. Goldsmith abortion counseling and volun-
tary abortion services for teenagers, with or without parental
consent, is a new area of need, and the provision of pregnancy
counseling, sensitive counseling, and referral for legal abortion
are essential parts of a comprehensive program. (From "A
Study of Teenage Contraceptors" by Goldsmith, Gabrielson,
Gabrielson, Potts and Sholtz.)
I repeat an earlier question posed to this subcommittee.
How does HEW continue to justify the continued funding under
the Tydings Act of Planned Parenthood World Population
affiliates which deal, both indirectly and directly with abortion
(including abortion of minors without parental consent) and
which in a broad sense of the term contribute to the delin-
quency of minors? I trust this subcommittee will not permit
such funding to continue without investigating these charges
and where necessary, subpoening necessary statements and
documents from these Planned Parenthood units funded under
the Tydings Act.
FERTILITY CONTROL EXPERIMENTS ON THE POOR
Under the 1970 Family Planning and Population Services
Act, extensive research on new techniques of fertility control
has been carried on.
Prostaglandins (Upjohn Co., major supplier to researchers),
Depo-Provera (an UpJohn trademark for the long-acting
sterilization drug) and
82
DES (Diethylstilbestrol) - manufactured l^knumber of drug
firms. As of Nov. 30, all have receiv^TFood and Drug
Administration approval.
Human experimentation of these new agents - all well
suited chemical warfare agents for population control, is being
carried out primarily on
(II the poor (in the U.S. and abroad)
(2) the young (at university-based medical centers)
and
(3) the retarded (family planning clinics and institutions
for the retarded)
The benefactors of the experiments are primarily
(1) pharmaceul^Acompanies
(2) public and pWate population control agencies such as
Planned Parenthood, HEW and AID
(3) university-based medical researchers and
Depo-Provera (Medroxyprogesterone Acetate) is a long-term
acting (3 month) injectable contraceptive which has been tested
on thousands of poor, primarily clinic patients in the U.S. and
abroad (Thailand, India, South Pacific).
The known side effects of this drug are permanent sterility,
irregular bleeding patterns, hemorrhaging requiring curettage,
and others.
The FDA approved the drug on Oct. 10, 1973. They cautioned that Depo-Provera be used only in certain women, and that pa-
tients give informed consent.
And who are these "certain women" referred to in Dr. Alexander M. Schmidt's (FDA) statement of release? They are women
who are willing to accept the possibility of permanent sterility and who
(1 ) refuses or is unable to accept the responsibility demanded by other contraceptive methods; or
(2) is incapable or unwilling to tolerate the side effects of conventional oral contraceptives; or
(3) is one in whom other methods of contraception have repeatedly failed, (emphasis added)
Using this definition - who then are these "certain women"
who "refuse" or are "unable" or "incapable" or "unwilling"'
Would these women be the wives of the medical researchers?
the daughters of HEW officials' the relatives of U.S. Congress-
men? Probably not.
These "certain women" are the poor, the young and the
retarded - the original "guinea pig" group who are notoriously
"lax" in limiting their numbers or regulating their sexual
activities in such a manner so as not to produce a child.
Are these "certain women" who are being immunized and
temporarily sterilized capable of giving "informed consent" in
the true sense of the word?
The research history of the other drugs mentioned earlier is
similar to that of Depo-Provera. Prostaglandin abortion
experiments have been widely carried out on clinic patients
including minors and at university based medical centers. DES,
mis-named "the morning after pill" was and is used widely at
teen birth control centers and university clinics.
I bring this matter to your attention because the Coalition
does not believe that the poor, the young, and the retarded
should be the object of exploitation by profit-seeking drug
firms and the population control establishment.
You as members of the Subcommittee on Public Health and
Environment have a special obligation in this matter to see
that legislation such as HR 11511 provides explicitly for the
protection of the most vulnerable and powerless groups
against those who consider the health of the state (over-
population) more important than those receiving a "public
health" service.
Drug companies such as Upjohn, who receive tax funds
should be prohibited from turning our ghettos and college
campuses and homes for the retarded into happy hunting
grounds for pharmaceutical profits and fertility control zealots.
FEDERALLY FUNDED POPULATION CONTROL RESEARCH
In 1971, the National Institute of Health, awarded a
five-year grant of $337,652 (total) to Dr Kingsley Davis of the
University of California, Berkeley.
The title of the grant (HD-04602) is "Goals and Conditions
of Population Control".
Dr. Davis, an outspoken advocate of abortion and popula
tion control, is best known for his suggestion that unwed
mothers be compulsorarily aborted.
I ask this subcommittee to enter into this record a detailed
explanation of the nature of Dr. Davis' grant, and the names of
those persons involved in awarding the grant and the reason for
approval.
This is but one of the hundreds of questionable grants and
contracts listed in the 1972 Inventory of Federal Population
Research. Of particular concern to the U.S. Coalition for Life
is the large number of grants listed under the Social and
behavioral Sciences directed at the poor in general and
minority groups in particular including blacks and indians.
HEW appears to be overly anxious to unlock the key to
family limitation "motivation" to save the poor "from the
consequences of their own reproductive behavior."
83
Concluding Remarks
FEDERAL FAMILY PLANNING PROGRAMS - A WEAPON OF POPULATION CONTROL
In September, 1973, Des Frost, Chairman of Prime Minister
Ian Smith's ruling Rhodesian Front Party, called for the crea-
tion of a ministry of birth control to curb the growing black
i population in Rhodesia.
"Trying to handle this problem with kid gloves is having a
| negative effect." he told the party's annual congress. "We need
a ministry dealing purely with the population explosion — a
! ministry with teeth than can dish out benefits to those who
conform and penalties to those who refuse to see the problems
i they create for future generations." Chairman Frost did not
elaborate on the penalties or benefits, (from the Florida Times
Urion 9/21/731.
That is Salisbury, of course. Dr. Louis Hellman and the
; Bureau of Love at HEW would not be so crude, at least, not
publicly.
It is not that Dr. Hellman and the population control
establishment would be against such programs in principle.
It's simply a matter of timing.
According to Dr. Hellman (the key figure in federal,
domestic, family planning programs) there is a question as to
whether or not volunteerism alone will be effective in limiting
population to acceptable limits since "almost all population
programs throughout the world are based on the concept that
there is a fundamental family right to choose the number of
their children . . ."
"The alternatives to voluntary contraception such as posi-
tive and negative incentives or outright governmental control
do not appear feasible or desirable at the present time."
(from "Family Planning Comes of Age" by Louis Hellman,
M.D.. Washington. D.C. 19711
To argue one way or the other today, is for all practical
purposes, a waste of time.
The use of the mass media combined with massive indoc-
trination of the young in our nation's secondary and elemen-
tary schools has rendered "positive and negative incentives or
outright governmental control" superfluous and such cliches as
"volunteerism" meaningless.
Talk of adding sterilants to the water supply or compulsory
abortion raises the ire of most citizens. Such tactics smack of
totalitarianism. They are crude — and unnecessary with
today's psychological weapon of persuasion.
'The tendency toward psychological collectivization is the
sine qua non of technical action . . . the problem is to get the
individuals consent artificially through depth psychology, since
he will not give it of his own free will. But the will to give
consent must appear to be spontaneous." (Ellul, The Techno-
logical Society 409, 1964).
The so-called "Population- education" funded under the
Tydings Act will insure a generation of young people who will
welcome governmental control of their reproductive lives. The
rabid anti-life doctrines in our schools today will make abor-
tion and euthanasia acceptable tomorrow. And the young will
find consolation in that if such acts be murder, as Scholastic
magazine suggests "it will be murder in context!"
Clearly, termination of federal funding the Tydings Act of
anti-life secular indoctrination, by this subcommittee, would
be a step in the right direction. We urge you to take such steps
immediately. The U.S. Coalition for Life is prepared to sub
stantiate all charges leveled against HEW in this testimony.
Your concern translated into legislation will not cure these
bureaucratic ills overnight, nor immediately halt the anti-life
programs so deeply entrenched in HEW.
What such action, however, will do, is provide the fiist
stepping stone toward an end of rule by the bureaucracy and
return government to its original mandate of service not
control — of protecting human life not destroying it - of
nurturing family life — not corrupting it.
The first step is the most difficult. The U.S. Coalition foi
Life is ready with documentation and support for any
Congressman and Senator willing to take that first step.
Documentation to foot-noted information is available to
Congressmen and Senators from the House Subcommittee on
Public Health and Environment.
Cost to Pro-Life groups is $25.00. Documentation may
be ordered directly from the USCL office. Allow 14 days
for delivery.
84
WCUC TestinUny on H.R. 11511 - if arch 15, 1974
Mr Chairman
Member* of the Subcommittee
WOMEN CONCERNED FOR THE UNBORN CHILD is an
uil, nonpartisan, non-sectarian organization of over
7.000 mothers, students and professional women from Pennsyl-
vania whose purpose is to speak for, and act in behalf of the
youngest and most defenseless member of the human family -
the unborn child.
We welcome this opportunity to enter testimony on HR
11511, the Health Revenue Sharing Bill now before this
subcommittee, with our specific remarks directed at Title 1 1 1 of
the Bill. The Family Planning and Population Research Act of
1973. HR 11511 is the companion bill to S1 708, the Family
Planning and Population Act of 1973. Both Bills are critical
of the Pro-Life Movement as jointly they:
1. Represent the basic funding legislative mechanism for
numerous anti-life agencies, specifically Planned Parent
hood World-Population and its affiliates, the number
one enemy of the unborn child, and
2. Represent an attempt to legitimize through legislative
action, anti-life policies and programs which have
ALREADY been put into effect by bureaucratic fiat of
the Department of Health, Education and Welfare,
specifically federally funded abortion and abortifacient
research and fertility control experiments, and CLINI-
CAL TESTING, using as human guinea pigs, the poor,
the retarded and other vulnerable elements of the
population, and
3. Represent a th-eat to the civil and constitutional rights
of all citizens, specifically, the poor and the powerless,
RIGHTS which include the right to marital privacy, the
right of informed consent, the right of the young to be
free of anti-life public indoctrination, which incorporates
values alien to Judaic-Christian heritage and the ultimate
right, the RIGHT TO LIFE itself.
If "Truth in Advertising" were the issue here, the Family
Planning and Population Research Act of 1973 would fail to
pass this Congress. By this we mean that legislators, (first this
committee, then a conference committee and finally the
House and Senate members) are being asked to pass judgment
on legislation which cloaks itself in such terms as "voluntary",
"population education", "family planning" and similar euphem-
isms which serve to disguise a reality which is so repugnant as
to be solidly rejected at its face value by a major segment of
Congress and the American public.
The primary purpose of this testimony is not so much to give answers, as it is to raise questions, questions concerning the role of
the Federal Government in POPULATION CONTROL. It may appear odd, at least initially, that the government should be so deep-
ly committed, both in philosophy and practice, to a policy which has NEVER been openly debated in the Halls of Congress.
Certainly specific aspects of Population Control TECHNI
QUES have arisen from time to time, issues such as abortion,
involuntary sterilization of the poor and retarded and fetal
experimentation. Congress has also discussed and debated
specific programs, such as the abortifacient research program
of the Agency for International Development and the Contra-
ceptive Research Branch of the National Institute of Health.
Yet, amidst this dialogue of various techniques and projects of
Population Control, Congress has yet to come to grips with the
critical issue — that is - Population Control itself and its
civil and constitutional implications as a matter of national
policy.
WOMEN CONCERNED FOR THE UNBORN CHILD, as
the name suggests, is committed to speaking out in defense of
unborn children and their inalienable right to life. This
committment, however, does not mean that we remain oblivious
to related issues, such as euthanasia and fertility control
experimentation. On the contrary, this committment allows
us to see the TOTAL anti-life movement so as to view abortion
and euthanasia and involuntary sterilization for what they are
- tools of Population Control. Likewise, because each mem-
ber of Congress is committed to defending the civil and consti-
tutional rights of our citizens, it is obligatory that we see the
Federal Government's so-called "Family Planning" policies and
programs for what they are - tools of Population control and
enemies of life and the liberty of the citizens of the United
States.
Let us look briefly at these seven questions related to the
issue of Federal Population Control programs —
First: Are federally funded "Family Planning" programs
envisioned as a method of bestowing upon citizens
a personal health benefit or as a weapon in Popula-
tion Control?
Second: Is the "voluntary participation" clause attached to
federally funded "Family Planning" programs
(including S1 708 and HR 11511) workable without
practical and meaningful guidelines built into such
legislation?
Third: Does the Federal Government violate its professed
NEUTRALITY by aggressively promoting birth
control, including contraception, sterilization and
abortion among the general citizenry as a desirable
practice or goal?
Fourth: Do "Family Planning" programs funded and pro-
moted by public authorities violate the right to
privacy of a relationship which Justice Douglas
called "intimate to the degree of being sacred"?
(Griswold vs: Connecticut, 381 U/S. 479.486, 1 965)
Fifth: Upon what meaningful criteria may federally
funded "Family Planning" programs be evaluated?
85
What types of "accessory^^ilicies and programs
are attached to federally funded "Family Planning"
programs and upon what criteria are they based?
Have the fundamental questions respecting the
nature of the human being, of human liberty, of
the role of the state, of the poor and of the provi-
dence of God been considered, prior to the
ador^Hi of population control as a matter of
national policy'
We are not referring here to the morality of birth control
as a private practice, but rather as a matter of public policy,
that is. a policy-which is actually promoted and funded by
FAMILY PLANNING OR POPULATION CONTROL
If asked whether "Family Planning" programs are for the
benefit of the individual participants as a personal health
measure or for the benefit of the state (i.e. a measure to deal
with the "Population Explosion"), most Congressmen would
probably opt for the former. In their eyes, these federally
funded programs are merely "making available", primarily to
the poor and the young, birth control services which they
voluntarily" seek out, and might otherwise not have access to
because of specific restrictions, financial or otherwise.
To examine whether such a view would find support in
legislative history, let us briefly examine the rationale and
conclusions formulated at the Gruening hearings. These public
hearings held in the mid 1960's are critical to the questions at
hand, since they formed the basis on which Congress was to
establish the Tydings Bill, the Family Planning and Population
Research Act of 1970. Clearly, from even a cursory review of
the Gruening hearings' volumes of testimony, the massive
intrusion of the Federal Government into the "Family Plan-
ning" arena was justified on the grounds of saving mankind
from itself, or the so called "Population Explosion". Thus,
while alluding to the proposition that a woman's health might
improve with fewer births and longer spacing birth patterns,
the principle thrust of the DESIGNERS or architects of the
federal programs was directed at improving the health of the
state by reducing population growth.
A truly voluntary health program which the individual could either accept or reject, a personalized program tailored to the unique
needs of the client, a program free from pressure and propaganda is NOT what the population controllers see as the principle ob-
jective of the Government Population Control Programs and Policies.
The truth of this assertion may be observed in a number of
ways. For example, current fertility control research is directed
at the perfect birth control agent (be it contra-conceptive or a
sterilant or an abortifacient) which can be administered to the
"masses" in the form of an inoculation or vaccination. The
"crisis" wrought by a plethora of people demands a massive,
not an individualized, program.
In practical application this means the "success" of fertility
control programs are measured by the number of IUD inser-
tions or number of pills popped or the number of sterilizations
performed. If a conflict arises between the two areas of con-
cern, for example, if a woman suffers severe anemia from
bleeding, due to an IUD, the prescription is for an iron tablet
rather than removal of the device, since the latter action might
result in a birth, which must be avoided at all costs, even to the
jeopardy of the health of the patient.
Again, in the case of abortion, there is sufficient documen-
tation that abortion, particularly repeated abortion, is harmful
to women, yet abortion is the KEY weapon in any Population
Control Program. Hence the continuing campaign for abortion
reform. (See attachments 1, 2 and 3).
This pattern is repeated again and again. We see it in the
use of clinic patients as experimental guinea pigs for pharma-
ceutical houses and Federal Abortion Research Programs.
(See attachment 4). We see it in the Food and Drug Administra-
tion approval of DES, not fit for cattle, but okayed for campus
co-eds. We see it in the use of Depo-Provera on the mentally
retarded, or those, as the FDA guidelines suggest, who are
either "unwilling or unable" to use the pill or other fertility
control agents.
If the purpose of this sub-committee on Public Health is to
propose and devise health legislation, then we recommend a
thorough study of the health hazards of the pill, the IUD
(an abortifacient agent) and such drugs as Depo-Provera and
DES, as well as Prostaglandins. The latter agent for second
trimester abortions has been linked directly to Sickle-Cell
Aneamia, yet, here in the Pittsburgh area at West Penn
Hospital, black clinic patients continue to be aborted, using
this still experimental technique. (See attachment No. 5).
Under S1708 and HR 11511 women, primarily clinic
patients, would continue to be the victims of fertility control
experiments, which will benefit the Population Control es-
tablishment and in which pharmaceutical firms have a multi-
million dollar international investment. Adequate protection
is an absolute necessity to prohibit such victimizing of the most
vulnerable segments of our population.
THE MYTH OF VOLUNTEERISM
The second to be posed to this committee is akin to the
first, and centers upon the issue of "voluntaryism", and whether
such legislative guarantees are meaningful without strong
built in guidelines. Here we are addressing ourselves also to the
86
question as to whether or not Federal Bi^pontrol Programs
should be clearly and without qualification separated from
welfare assistance.
"Coercion" is a term of a broad spectrum of meaning in
the law. In the law of contracts a finding of coercion, or
duress, does not depend upon objective tests of what act or
threat produces a state of fear, leading compulsively to given
acts . . age. sex, capacity, relation of the parties, attendant
circumstances must all be considered. Persons of a weak or
cowardly nature are the very ones who need protection.
Closely related is "undue influence".
•Influence, therefore, is considered "undue" giving rise to
rescission of contracts, where a relationship of confidence may
be deemed to exist between the parties, and one of the parties
is in a position of weakness in relation to the other, and where
there is, in fact, unfair persuasion . . ." (from Population
Control; Court and Constitutional Concerns. William Ball.
Cornell University Press 1967 pps 19-20.)
We believe that because of the nature of welfare to the poor,
who are at the mercy of the state for their basic existence.
welfare birth contro^pbgrams can be said to be coercive in
the broad sense of the term, i.e. represent undue influence on
such individuals. This holds true when a social worker
presumes to influence the poor by promoting birth control
practices or suggests that a welfare client relieve herself of an
"unwanted" pregnancy, including setting up an abortion for
the client.
That the State is ready to pass this stage and is preparing to
introduce coercive measures to limit the number of welfare
clients is not merely speculative. Bills have already been
introduced at the federal and state levels to sterilize welfare
mothers or to make Depo-Provera shots a condition for receiv-
ing further welfare assistance. (See attachment 6).
Given the seal of the Population Control establishment to
"manage" the reproductive habits of the poor, for this sub-
committee to further perpetuate the myth of voluntarism is
to be blind indeed to the reality of built-in coercion which
exists whenever welfare s directly linked to aggressive birth
limitation schemes.
POPULATION LIMITATION PROPAGANDA
While the poor make up the hard core of the "target group"
of federally funded "Family Planning" programs, they are by
no means the only class of citizens who are exposed to the
ongoing aggressive campaign of birth limitation.
The Federal Government has poured millions into behavioral
and motivational research, designed to discover various psycho-
logical techniques to "motivate" citizens to limit the number of
children in their families. "We must teach people to Want
fewer children" appears to be a specific goal. This becomes a
rather complicated public relations problem as this "want"
must appear to be a voluntary decision rather than a forced
reaction to a state prescribed edict, at which people might balk.
That federal "Family Planning" programs promote, not only
a service, but attempt to mold values and attitudes by use of
mass media brings us to the important question of the possible
breach of state "neutrality" in matters of morals. For this
sub-committee to view birth control as merely a health measure
is to deny the true nature of human sexuality which encom-
passes a person's total being.
It would be no exaggeration to state that the Planned Parent-
hood Credo is the official religion of the Department of HEW
and that Planned Parenthood World-Population has become an
official appendage of government. Civic Awareness of America
a Wisconsin based organization has taken this matter of state
support of a religion of secular humanism as espoused by
Planned Parenthood via HEW, to the courts. The case is
expected to reach the United States Supreme Court.
VIOLATION OF MARITAL PRIVACY
Do tax supported "Family Planning" programs constitute a
violation of the right to privacy? This question does not appear
to be one to which this sub-committee or any other legislative
body has addressed itself. The reason is obvious.
Government probing of one's sexual habits and attitudes,
traditionally related to marital privacy, has largely been con-
fined to the poor, the welfare clients, who are particularly
vulnerable to pressures of public authorities.
We would venture to say that if any of the members of
this subcommittee or their families were subjected to an
indepth interview by a government agency as to their sexual
practices and contraceptive methods, and that such information
(coded or uncoded) were to be entered in a federal data bank,
a Congressional investigation of such gross intrusion into
family life would have already been demanded.
It is naive to assume that "Family Planning" programs can
be efficiently managed without such intimate probing of
client's sexual history and practices and without such informa-
tion being accumulated for statistical purposes deemed neces-
sary by HEW.
THE ISSUE OF ACCOUNTABILITY
One of the areas of Congressional responsibility is the
evaluation of an ongoing tax supported program. Yet, has
there ever been a single instance of a public hearing by this
sub committee on Public Health and Environment to objective-
ly evaluate and scrutinize policies and programs funded under
the Tydings Bill or its successors?
87
Furthermore, should such an undertaking be made what would be the criteria by which such programs would be measured and
evaluated? The fact is, that no criteria exists, and that federally funded "Family Planning" programs are virtually standardless as:
a) no concrete definition of "Family Planning" exists
b) no concrete legal authorization necessary for government sponsored Population control programs exists
c) no definite or precise territorial jurisdiction of government units to promote Population Control exists
d) no pre-established qualifications or rules of conduct exist to govern the activities of those agents who are selected to carry out
programs of Population Control
Until Congress deems it necessary to establish such standards, federally funded "Family Planning" will continue to be an anti-life
boondoggle which consumes, not only dollars, but human life itself in the form of abortion and euthanasia, a topic this sub commit-
tee will soon be dealing with in another series of public hearings.
FEDERAL PROGRAMS - ARM OF THE SECULAR HUMANIST
We have stated that Government Birth Control Programs
promote more than a mere practice. They promote an ideology,
3 way of life, based on a secular humanist ethic.
Therefore, in attempting to promote the Sangente philoso-
phy, the state has been drawn deeper into other related areas
which are equally standardless. Such programs include:
1) contraceptive education of mino'rs and minors rights pro-
gram (abortion for example), with or without parental
knowledge or consent.
2) massive population control indoctrination at the elementary
and secondary school levels.
3) massive media campaigns designed to "motivate" as well
as mold public attitudes and values.
4} genetic and eugenic programs designed to improve the
quality of human stock, as well as limit numbers.
5) massive sterilization and abortion programs, staples of any
effective population control program.
6) massive medical experimentation on human guinea pigs
deemed necessary for improvement of effective "fertility
control" programs . . . etc . . . etc . . .
NEED FOR CONGRESSIONAL INVESTIGATION
Lastly, and this may be viewed as a summary of all
preceeding remarks - at that point in time will Congress
accept its responsibility as a representative body to come to
grips with the essential questions posed by the adoption of
Population Control as both a domestic and foreign policy'
Certainly our testimony supports the proposition that
'opulation Control Programs involve basic fundamental ques-
tions relating to the human being and his relationship to God,
his family and the State.
CONCLUSION: We understand that the United States Coali-
tion for Life has called for a Congressional investigation of
HEW violations of the Tydings Bill. Women Concerned for the
Unborn Child would hope that such an inquiry into specific
questions would first come to grips with the FUNDAMENTAL
questions we have passed to this sub-committee today.
Until such action is taken, we ask that no additional
funding under S1708 or H1 1511 be approved pending a
Congressional inquiry convened for the above stated purpose.
Thank you,
Mary Winter, President
Women Concerned for the Unborn Child
Documentation available from:
WCUC
1 703 Coast Avenue
Pittsburgh, Pennsylvania 15216
Telephone: (4121 531-9272
88
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89
[From the Medical Tribune, May 9, 1973]
Family-Planning Units Urged To Make Genetic Referrals
Houston, Tex. — A medical geneticist proposed here that, in view of the devel-
opment of effective techniques to diagnose and prevent genetic disease, family-
planning agencies should include in their programs information and referral
services for families found to have genetic problems.
Dr. R. Rodney Howell, Professor of Pediatrics and Genetics at the University
of Texas Medical School, told the annual meeting of the American Association
of Planned Parenthood Physicians that, with the increasing emphasis on pop-
ulation control and reduction of family size, there is growing interest in the
prevention of serious hereditary defects whenever possible.
INFORMATION SHOULD BE OFFERED
"Genetic counseling permits an increasing number of families to have healthy
children," he said. "Implicit in this is the idea that not only should the most
modern genetic techniques be developed, but information about the techniques
should be offered to persons who, while seeking advise and guidance in family-
planning matters, learn that there is a genetic problem in their family."
He noted that "not infrequently patients will seek voluntary sterilization,
unaware that new genetic techniques are available that might permit them to
have normal children of their own."
Dr. Howell is director of one of the 46 genetic counseling and treatment cen-
ters participating in a nationwide network of such units operated by the Na-
tional Genetics Foundation.
The Role of Planned Parenthood — World Population in Abortion
(By George Langmyhr, M.D.)
Planned Parenthood Federation of America is a voluntary health agency
dedicated to making birth control services available to all American women
and men. The pioneering efforts of Margaret Sanger led to the opening of the
first birth control clinic in the United States. Planned Parenthood Affiliates now
number 191 in some 40 states and the District of Columbia.
I propose to discuss the history of Planned Parenthood's involvement with
abortion, to discuss our present activities, both at a national and affiliate level
and, finally, to take a look into the future. First, however, I would like to ad-
dress myself to two points : the concept that many people have of Planned
Parenthood as a birth control agency which, as such, should not be involved in
abortion ; and secondly, Planned Parenthood's involvement in helping to achieve
reform or repeal of abortion law. Public opinion on the first point is a problem
that Planned Parenthood has faced at national and local levels for many years.
I think it is fair to say that most professionals and volunteers associated with
Planned Parenthood have accepted, for a long time, the necessity of abortion
as an integral part of any complete or total family planning program. The
dilemma of a woman who has a legitimate method failure, or any type of un-
wanted pregnancy, cannot be avoided by Planned Parenthood clinic personnel.
In 1969, Planned Parenthood-World Population passed a policy on abortion.
Further, the National Medical Committee has issued Standards for Pregnancy
Counseling Programs and Abortion Services.
Regarding the second point, as a nonprofit, tax-exempt agency, Planned Par-
enthood is specifically unable to lobby or overtly attempt to achieve legislative
reform. However, there are many dedicated volunteers and professionals from
Planned Parenthood Affiliates who have been effective in working with other
concerned citizens and reform groups. One example is the outspoken advocacy
of abortion law change by Dr. Alan Guttmacher. Another is the informal co-
operation of Planned Parenthood Affiliates in ad hoc abortion law repeal com-
mittees. Finally, Planned Parenthood helped prepare various legal briefs which
have been presented to the courts as a means of effecting change. One major
effort is currently underway to change the recent legal opinion in California
that a minor is not able to consent to an abortion.1
1 See p. 1161.
90
PLANNED PAKENTHOOD'S EARLY ROLE IN COUNSELING AND REFERRAL
It goes without saying that Planned Parenthood Affiliates have long been in-
volved in programs of abortion information, counseling and referral. Before
the recent change in abortion laws, these activities were, necessarily unpubli-
cized. Thus, we generally do not know the results of these early counseling and
referral programs.
The advent of abortion reform movements in the 1960's corresponded with a
dramatic change in Planned Parenthood service programs. Instead of providing
only birth control services (and occasionally infertility diagnosis, premarital
and marital counseling), many other conception counseling services began to
be offered. In a programatic way, Planned Parenthood began to get more deeply
involved in abortion programs through its involvement in pregnancy detection
services. In many communities, Planned Parenthood patients complained that
it was virtually impossible to get a pregnancy test done easily and cheaply ;
this was verified by Affiliate personnel, upon checking these complaints. When
attempting to prod health departments or hospitals, they found many institu-
tions resistant to developing or implementing a pregnancy detection service.
Therefore, many affiliates assumed this responsibility, at least on a temporary
basis. When Planned Parenthood's efforts became known, affiliates were con-
fronted with an increasing number of women seeking pregnancy detection serv-
ices who also began to request other assistance if they were found to be preg-
nant. Thus, certain affiliates began to get more deeply involved in abortion in-
formation, counseling and referral.
By the mid 1960's, there were other groups working hard in these areas and
Planned Parenthood affiliates attempted to cooperate with many of them in-
cluding clergy counseling groups and various community service agencies. Our
affiliate in Massachusetts has developed an extremely capable abortion counsel-
ing program which assists many women.
Clearly, Planned Parenthood's involvement was shaped by the social forces
which began to effect meaningful change in abortion law.
Let me now turn to our current involvement, utilizing activities in three
states to demonstrate the different types of programs offered by affiliates.
CALIFORNIA
Since the reform of the abortion law, our affiliates in California have be-
come deeply involved in programs of counseling and referral. Without intruding
too much on Dr. Minkler's paper, I would like to refer specifically to the ac-
tivities of our affiliate in the San Francisco/ Alameda County area. I hope I
do not abrade anyone by saying that the Bay Area has generally been more
progressive in implementing abortion programs, although there has been a great
deal of activity in Los Angeles as well.
As part of the San Francisco effort, our affiliate there cooperated with hos-
pitals and private physicians to make abortion available for many or most
women who requested it. Since Planned Parenthood's services are largely geared
to the indigent or near indigent, assisting them to become properly informed of
their medical benefits and to secure referral and confirmed appointments became
one of our prime areas of responsibility. But, as many of your realize, there
are large numbers of women who, because of marginal income, face major diffi-
culties in paying the normal private practice and hospital fees, specifically,
many younger women who are recently employed, secretaries, clerks, various
paraprofessionals and, as a separate group, college students. Planned Parent-
hood affiliates across the country have received an increasing number of re-
quests for assistance from this category of younger women. Affiliates have no
right to deny them access to service on the theoretical grounds that they have
a somewhat adequate income.
For this reason. Planned Parenthood/Alameda/San Francisco secured a foun-
dation grant to develop the San Francisco Center for Legal Abortion which was
designed to serve applicants who are ineligible for, or who elect not to invoke.
BlediCal and at the same time simply cannot afford private care at the current
costs. The Abortion Tenter embodies the concept of a pregnancy diagnosis cen-
ter, counseling, preabortion physical examination, processing for therapeutic
abortion committee approval and. postabortion followup including contraceptive
advice. The Center will collect a total abortion fee from each patient and pro-
vide payment to cooperating physicians and hospitals. It plans to offer a full
91
range of services related to abortion which, hopefully, will enable patients to
be quickly referred to an obstetrician-gynecologist in one of the cooperating
hospitals. Followup care, in case of complications, will be arranged through
the central office. A telephone answering service at the Abortion Center will be
in effect. Every attempt will be made to maintain patient contact with the
operating physician.
COLORADO
I doubt if many are happy with the Colorado law. Planned Parenthood in
Denver has carefully analyzed its position in relation to present abortion ac-
tivities in that state. Approximately 40-60 requests and some 30-50 referrals
for abortion are handled by the affiliate every week. Ninety per cent of these
patients are referred out of state, some to New York, others to California and
elsewhere. There are cooperating physicians in the Denver area who have agreed
to take a small number of referrals. It is interesting to note that the patients
requesting abortions from Planned Parenthood are usually young, between 18
to 23 years of age. They are college students or newly employed in various jobs
such as secretarial clerkship work.
Unfortunately, under the Colorado law, most of these women have no valid
reason for an abortion. This has led to the referral I have mentioned. Planned
Parenthood of Colorado does not do abortion counseling per se. Instead, it has
cooperated closely with the clergy counseling group in putting into effect an
effective screening mechanism to assist women who need to be properly in-
formed. Women are assisted in obtaining pregnancy diagnosis quickly. If they
wish an abortion, referral is obtained with the assistance of Clergy Counseling.
If there are grounds for abortion under the Colorado law, they are referred
to a psychiatrist.
There is another important aspect about the decision made by Planned Par-
enthood in Colorado. Under the present situation, they felt it urgent to pro-
vide much more information about the availability of birth control and to make
services even more widely available to young women. Therefore, major pro-
grams on college campuses and elsewhere have attempted to prevent unwanted
pregnancy from occurring.
NEW YORK STATE
July 1, 1970 saw the beginning of semichaos in New York State as far as
abortion programs were concerned. Fortunately, near order has now been re-
stored. I will attempt to detail the specific types of activity by Planned Par-
enthood that, in part, may have helped to restore this order.
EFFORTS MADE HY THE NEW YORK CITY NATIONAL ORGANIZATION
Planned Parenthood Federation worked with its affiliates in New York State
to monitor the situation, assist with a portion of the referral requests, consider
the necessity for training programs for pregnancy counselors, and so forth. As
in California and Colorado, many women really did not understand the New
York law or know how to go about securing a safe abortion. Therefore, we set
up a telephone service which enabled many women calling from in or out of
state to obtain proper information and referral. We published an abortion
pamphlet. Incidentally, we intend to get much more involved in education. At
the same time, Planned Parenthood strove to monitor the developing situations
in other states so that women from California, for example, did not come to
New York (as some did) when the situation in her community might have
changed to allow her to have an abortion there. We began examining the needs
for properly training personnel of all kinds in abortion counseling and. referral.
While some excellent counseling is going on throughout the country, there are
relatively few training programs to develop competent counsellors.
Our affiliate in New York City should be congratulated for its major role
in making available a competent telephone information and referral service
through the Family Planning Information Service of New York City. This
service is a result of cooperation by a number of agencies, both public, private
and voluntary within New York City, who had agreed upon the need to provide
a telephone service for women who needed to know about birth control services.
July 1, 1970 saw the Family Planning Information Service also take on the
responsibility of providing abortion information and referral. A tremendous
increase in the number of telephone calls to the service resulted.
Planned Parenthood, furthermore, was instrumental in working with munici-
pal, proprietary and private hospitals in attempting to match up prospective
92
patients with physicians and institutions. Our role as patient advocate was well
demonstrated in our criticism of the slowness of certain municipal hospitals in
iblishing meaningful programs of abortion. Planned Parenthood of New York
urrently considering the development of an outpatient abortion facility
in order to provide prompt, safe, low-cost ($0-$150) outpatient abortions.
Our affiliate in Syracuse made the decision to perform abortions on its prem-
ises. You may know that Syracuse is a conservative, Catholic community. The
atiiliate began to plan its abortion facility when it became apparent that no
hospitals in the area were making provision for abortion services. Through
various surveys, it learned that a number of doctors were willing to accept
referrals for abortions that would either be performed in the physician's office
or in the hospital with which the physician was associated.
Planned Parenthood initially wanted to operate a telephone information and
counseling service. However, after considerable discussion and deliberation, it
was decided that an outpatient abortion facility should be developed within the
Planned Parenthood Center. This decision was based on the following factors :
The reluctance of certain hospitals to make known their plans for abortion
services ;
The real prospect that where services were available, the fees would be high ;
The further realization that services would tend to be offered in a way that
the patient would have to face a formidable screening procedure, and thus a
long waiting period.
Since July 1, 1970, approximately 12 pregnancies per week have been ter-
minated in the Syracuse Planned Parenthood facility. Twenty per cent of the
patients are on welfare; the fees have ranged from $0-250, with the average
payment being $150.
The administrative problems in actually putting together the service were,
to say the least, horrendous. However, the executive director, an innovative
woman, was able to overcome all obstacles in developing this service with the
help of an enlightened board and professional staff. It is the feeling of the affil-
iate that such a service will be offered for the foreseeable future — ie. one to two
years until it is clear that abortion is easily available to women in the Syracuse
area.
FUTURE PLANS
By discussing programs within three states. I have attempted to outline the
different approaches being taken by Planned Parenthood. Now, for a look into
the future.
Clearly, we must provide support for those groups who are attempting to
maintain present satisfactory laws such as in New York State, or those who
are attempting to repeal the law in other states. In states where abortion law
reform or repeal has not yet occurred, we will continue to cooperate with in-
stitutions and agencies in offering programs of abortion information, counsel-
ing and referral. In those states where abortion law has changed, we have var-
ious alternatives, ranging from maintaining a telephone information service to
offering direct services, such as in Syracuse.
Of highest priority, however, will be our continued focus on birth control
services. It would be unfortunate if the availability of abortion deemphasized
the necessity of making birth control available conveniently and cheaply to all
women and men. Certainly, the United States is a "contraceptive society."
Planned Parenthood hopes that this well-established trend will be reinforced
so that we will be an even more efficient contraceptive society in the next
decades.
We support the view that when an unwanted pregnancy has occurred, abor-
tion services should be available, with the decision essentially being made by
the patient and her doctor. We will continue to be part of the advocacy constitu-
ency so that fees can be scaled down to reasonable levels.
In summary. Planned Parenthood hopes that abortion will become even more
available and supports the efforts of others in seeking reform and repeal of
outdated abort ion laws. At the same time, we will work to provide more effec-
programs of public education, information and birth control services to
n the need for pregnancy termination.
Ms, Excel. Secondly, at the end of this hearing. I would request
that those Senators who have not been able to appear, if their aides
would come down to the table, I have a speciallv prepared packet for
of those individuals.
93
Beginning my testimony, I would like to open with a comment
with regard to a speech that was made by Dr. Louise Tyrer of the
Family Planning Division of the American College of OBGYN be-
fore the Association of Planned Parenthood Physicians at their 12th
annual meeting at Memphis, Tenn., on April 16, 1974. The very
impromptu talk was on the status of the various Human Life Amend-
ments to the Constitution of the United States.
According to Dr. Tyrer's assessment of the congressional scene,
she saw that there were two basic approaches. One was the basic
States rights approach which would return the power of lawmaking
in the area of abortion to the individual States. The second, which
would guarantee the full protection of the law to the unborn child
from the moment of fertilization.
The States rights approach, she states, and I believe quite correctly
so, is unacceptable to the majority of prolife people yet very at-
tractive to the legislators, that is, Federal legislators, because "it sort
of takes the onus off their backs from making any decisions."
The remainder of her talk stresses the necessity of stalling these
hearings by this subcommittee by having Planned Parenthood phy-
sicians flood the subcommittee with requests to testify. This, Dr.
Tyrer suggested, was politically expedient and politically necessary
for you, Mr. Chairman, in order to keep the amendments bottled up
in subcommittee until you have gone through the election process in
the fall.
Frankly, I have no desire to embarrass anyone on this issue at this
time. This is not because I do not feel that Dr. Tyrer was incorrect
in her judgment of the political realities of the Senate and House
committees dealing with the abortion issue, and it is not because I
disagree with her, or her assessment that stalling these committee
hearings by dragging them out month by month would be politically
expedient for you and for others who 'might prefer not to have a
rollcall vote on a Human Life Amendment before election time.
But, rather, because with very few exceptions, almost every Senator
and Representative in Congress would like nothing better than to
get rid of the abortion issue tomorrow, if not before, or at least
dump the matter back into the lap of the State legislatures.
Senator Bayh. Excuse me for interrupting.
Ms. Engel. That is perfectly fine.
Senator Bath. You said, "Although, Mr. Chairman, I have no de-
sire to embarrass you," I do not think your desire not to embarrass
me is relevant to what we are trying to do here. I appreciate your
sentiment, although it is not necessary.
Nor am I virgin as far as being embarrassed, nor do I anticipate
that I will never be embarrassed again. It is like Harry Truman
said, "if you can't stand the heat, get out of the kitchen," and I like
it in the kitchen. You say further, "not because I feel Dr. Tyrer was
incorrect in her judgment or her assessment that stalling the sub-
committee hearings by dragging them out month by month would be
politically expedient for you and others who might prefer not to have
a rollcall."
Do you feel what we are doing here is dragging things out and
following political expediency?
94
Ms. Engel. I would not care to judge your motives. However, I
would suggest that these hearings have been dragged out, holding 1
per month on a different topic; yes, I would concur in that opinion.
Senator Bath. All right. How many votes do you suppose we
could have for these amendment if we had had the vote in June?
Ms. Engel. Well, the problem of getting through the subcommittee
is yours and getting people motivated to support is our problem, in
which you, of course, would play a role.
Senator Bath. You see, I have not tried to answer that question,
because I am trying to solve the problem in my own mind.
It must be very comfortable, I imagine, to be so satisfied that you
have all the answers and know exactly what is right and wrong.
I find it more difficult in my own mind and heart to reach that con-
clusion. However, if you are in favor of an amendment and make,
what I would call, a rather critical assessment, if not of my motives,
than of the results of my actions, I think maybe you ought to, in the
quiet of the evening, add up the votes you would have had in June.
Now. please proceed.
Ms. Excel. Yes. I would like to comment on that statement.
I have been in the movement now for more than 10 years. I do not
believe I have all of the answers, but I believe by the time you get
through these hearings you will not have all of the answers either.
As you said, there comes a time when you will vote yes or no, and
that time in your estimation may be 2 years, but at that point of 2
years you might be able to say, if I only had another 2 years to think
about it, I might know more about it. And the chances are that is
true, but the point here is that each day that goes by, thousands of
unborn children are being killed and so we are extremely anxious to
have this issue — the hearings conducted in the manner which they
usually are, and I would suggest future hearings be held in groups
of 2 or 3 days rather than being strung out in such a manner. That
would be my only comment before I go on.
With regard to the matter of congressional responsibility, the ex-
cuses that I have heard, and I am sure most prolife people have
heard on the abortion issue, is they will say, this is not our affair.
Some Congressmen and Senators will say the massive slaughter of
hundreds of thousands of innocent unborn children is not a Federal
matter.
They will say, we are not responsible for the Supreme Court de-
cision of January 22, which is now the law of the land.
Well, my primary purpose in being here today, Mr. Chairman,
is to tell Senators like yourself in both counts, in terms of being
both in the House and the Senate, that abortion is a Federal matter,
that the massive slaughter of unborn children in this country is a
very proper matter of Federal concern.
And the reason that it is such a proper matter of Federal concern
a that this Congress is directly responsible for the almost inevitable
Supreme Court decision which stripped unborn children of their in-
alienable right to life.
Why does Congress have this responsibility?
Congress has this responsibility because over the last 10
has permitted an antilife philosophv and antilife programs
and policies in the area of population control and so-called family
95
planning to be matters of national policy, promoted and supported
by tax dollars. . .
It is the Federal Government— at all levels— executive, legislative,
and judicial branches— which has posed the greatest threat to unborn
children in recent years.
The executive branch because it has failed to correct the antilite
abuses primarily within the bureaucracies of HEW and AID and
has permitted key antilife leaders such as Dr. Louis Hellman of the
Office of Population Affairs and Dr. R. T. Ravenholt, Director of
Population Bureau for AID, to remain in office.
President Ford's selection of Nelson Rockefeller will undoubtedly
compound these abuses.
The legislative branch, they are responsible because Congress has
authorized legislation and appropriate funds year after year to
initiate, promote, and to sustain antilife programs in virtually every
conceivable Federal bureaucracy, including the following:
You have a whole list, as vou can see, in front of you, which I am
not going to go through the^ bother of labeling succinctly other than
to say that in the attachments which accompany the testimony we
do contain specific details on the extent to which each of the agen-
cies such as the Office of Education, Department of Defense, Public
Health Services, U.S. Information Agency, and so forth, have con-
tributed to the antilife mechanism at the Federal level, and if at the
end of my testimony, if you have any specific question on any of
these agencies, I would be happy to answer them there.
Then we get lastly to the judicial branch. The judicial branch,
whose highest Court by a 7-to-2 decision, legalized the killing of un-
born children up to and including the time of birth, a decision based
in part upon the very impeccable historical credentials of the Play-
boy Foundation as well as numerous antilife lower court decisions,
brought about through the tireless efforts of federally funded Legal
Service lawyers.
Senator Bath. Excuse me, madam, what is the Playboy Foun-
dation?
Ms. Excel. The Playboy Foundation is the foundation of Hugh
Hefner and is related directly to Playboy Magazine and the Playboy
empire.
Senator Bath. And how does it have impeccable historical creden-
tials? I have never heard of it. Which is not to mean it does not have
impeccable historical credentials. Would you edify us a little bit?
Maybe it is something I do not know. I am familiar with the maga-
zine, having onlv a passing familiarity with it. [General laughter.]
Ms. Engel. When the Supreme Court decision came out, Hugh
Hefner, in an article which appeared in Playboy, praised the fact
that the Supreme Court decision had based a portion of its section
with regard to the history of abortion law on a presentation which
was funded through the Playboy Foundation, and if you would like
a copy of that I do have the article on which the Supreme Court de-
cision, using the information provided by this historical background,
funded through the foundation.
Senator Bath. Well, now you are referring to an article that Mr.
Hefner wrote?
Ms. Engel. No, no.
96
Senator Bath. Did the Court in its judgment talk about the im-
able historic credentials of the Playboy Foundation?
Ma Engel. Hugh Hefner, through the Playboy Foundation, his
foundation, has done a number of research articles and so forth on
tin- abortion area. . . , , -
When the Supreme Court decision came out, one of the references
made in the Supreme Court decision was to a specific article made
by a specific author. That particular article is related to the Play-
boy Foundation in terms of funding.
\nd if I use the term "impeccable historical credentials it was
to get just the reaction I have gotten, meaning, what is the impec-
cable historical credentials?
I would love to ask that of the Supreme Court.
Senator Bath. What concerns me, is that we have a very serious
issue here.
Ms. Engel. That is correct.
Senator Bath. I am sure you think it is serious, but when you ap-
proach it from that particular point, I do not think it is making a
good case.
Ms. Engel. Mr. Senator. I do not think you are quite correct.
Senator Bath. I think Hugh Hefner has a right to say what he
wants to say.
Ms. Engel. He may have.
Senator Bath. But I do not think we should be told that the Su-
preme Court of the United States based their decision on the impec-
cable historical credentials of the Playboy Foundation. Everybody
utitled to their opinion, but as the chairman of this committee
1 am trying to sort out facts from fiction and it is very difficult. And
forgive me if I am a little harsh on you.
Ms. Engel. Not at all.
Senator Bath. You have a right to present your opinion, and that
is why you are here. Do not be deterred. I have a sinking suspicion
you are not going to be. [General laughter.]
Ms. Engel. Yes. As you said before, you know, if you don't like
the heat in the kitchen— well, I have been through a lot of heat in
the kitchen as a mother of five so I will stay and go over this.
Now, what T was trying to say here. Senator, is that when I saw
that the Supreme Court decision was based at least in part on his-
torical documentation supplied by the Playboy Foundation, I
thought that to be rather unorthodox and more so when I read the
information. T believe it was not historically correct.
So perhaps T should have put little quotes around my comment as
being a facetious one but the fact that the Supreme Court decision
did base some of its historical data and so forth on information
provided by the Playboy Foundation simply means that I think that
they could have had a better source, if they were looking for more
urate historical information.
Senator Bath. But in the footnotes, I should remember this, but
did the Court refer in the footnotes to the Playboy Foundation, or
doctor or a scientist who was studving the issue and some
of the funds for the study had been provided by the Playboy Foun-
dation ?
97
Ms. Engel. Well, on this, I think it would probably be best if I get
you a copy of the article, but basically
Senator Bath. I am more concerned about the Supreme Court de-
cision, and not what Hugh Hefner has to say, with all respect to
Mr. Hefner. .
Ms. Engel. All right. I am too. The article in the Supreme Court
decision was footnoted and it used the author's name and the article
from which it was drawn. It did not mention the Playboy Foun-
dation. In other words, in reading the decision, if you read it you
would not know of this author's association with the Playboy Foun-
dation.
Senator Bath. What was the author's name?
Ms. Engel. I have the information in this packet, if you would
like to — would you consider holding it a second and getting a drink
and I will pull it out for you ?
Senator Bayh. Why don't you go ahead and I will look for it while
you go ahead. I just want to find out who it is, and pay more care-
ful attention to what the credentials are.
Thank you.
Ms. Engel. All right. Very good.
Earlier in my testimony, I made reference not only to the Federal
antilife programs and policies but also to an antilife philosophy
which has in fact, in terms of family planning and population con-
trol, become the state religion and by this I mean it is a philosophy
which is supported by Federal taxes. It is a philosophy which is sup-
ported by Federal personnel. It is a philosophy which uses the offices
of the Federal Government and it is a philosophy which Federal
publications push.
I have below a selection of quotations. They were taken from two
books. One is called Women and the New Race and the other is called
The Pivot of Civilization. I have brought them along with me be-
cause they are seemingly difficult to get, unless one orders the entire
volumes. The quotes that I have, I think are quite alarming, par-
ticularly when you mentioned you were quite interested in the Nazi
philosophy in the background there.
If you read the article which Mildred Jefferson referred to, which
was the "Life Devoid of Value" which was a philosophical basis for
much of what happened in Nazi Germany, you will see a very great
similarity between the particular approach, the utilitarian approach
and the quotes which I have before me.
Chapter 5 of Women and the New Race is titled "The Wickedness
of Creating a Large Family." The quotes read :
The most serious evil of our time is that of encouraging the bringing into
the world of large families. The most immoral practice of the day is breeding
too many children * * *
Another quote:
Every jail, hospital for the insane, reformatory and institution for the feeble
minded cries out against the evils of too prolific breeding among wage-workers.
Another quote:
* * * The most merciful thing that the large family does to one of its infant
members is to kill it.
98
* * * What shall be said of us (society) who permit outworn laws and cus-
toms to persist in piling up the appalling sum of public expense, misery and
spiritual degration.
In other chapter, entitled "When Should a Woman Avoid Having
Children*' from again, Women and the New Kace, the following
quote :
No more children should be born when the parents, though healthy them-
selves, find that their children are physically or mentally defective. No matter
how much they desire children, no man and woman have a right to bring into
the world those who are to suffer from mental or physical affliction. It con-
demns the child to a life of misery and places upon community the burden of
raring for it * * *
The last quote is taken from the Pivot of Civilization. It is chapter
4 entitled, "The Fertility of the Feeble-Minded."
* * * we realize that each feeble-minded person is a potential source of end-
less progeny of defective, we prefer a policy of immediate sterilization, of
making sure that parenthood is absolutely prohibited in the feeble-minded.
And in the last section, having to do with eugenics, the following
quote :
* * * Eugenics is chiefly valuable in its negative aspects * * * it shows us that
we are paying for and even submitting to the dictates of an ever increasing, un-
ceasingly spawning class of human beings who never should have been born at
all * * *
I think you would agree that these are basically vicious, racist
opinions which could never formulate the basis for a matter of
national policy. The reason I brought the books along is so if the
Senator would like to see that these are quotes which were taken
within the context, and they were not quotes which I believe as a
professional writer, distort the author's intent. Could these quotes
be offered as the basis for national policy? Yes, they can; in fact,
they have. Within the next 5 years the Federal Government will
spend more than $1 billion in taxes to promote these ideas. Monday
before last, August 12, the House voted — the bill was H.R. 14214,
title 2, $472.5 million, almost $0.5 billion, to promote such opinions
through private, quasi-governmental and governmental agencies.
You see, Mr. Chairman, these quotes were taken from the works
of Margaret Sanger, founder of the American Birth Control League,
which today we know as Planned Parenthood and World Population.
Today, some 50 years later, the Sangerite revolution is complete.
The Sangerite philosophy or way of life has formed the basis of
Federal policy in the area of population control and so-called family
planning a pleasant-sounding euphemism for birth control, including
contraception, sterilization, and abortion. The Sangerite programs
and policies have indeed become Federal programs and policies.
There lias been a very concerted effort to overhaul the public image
of the Sangerite movement between the years of 1920 to the mid-
I960's, and T think it is easy to see, if one gages by the Sangerite
attitude from these previous quotes, why there was a need to over-
haul the public image so as to tone down the original eugenic roots
hedonistic basis of sexual activity of this organization.
It appears, however, that the movement has come full circle fol-
lowing the January 22 Supreme Court decision on abortion.
In the attachments which your aide has just picked up you will
find documentation to support the following charges.
99
It is a matter of public record that Planned Parenthood and its
affiliates see abortion as a key to eliminating physically or mentally
defective unborn children. They see abortion as a tool to reduce wel-
fare rolls and most importantly they see abortion as a necessary and
efficient method of population control, population control defined as
a regulation of family size by Government.
Large families are an anathema, and I think that this whole atti-
tude here with regard to families is very well reflected in a brochure
which you have before you called So You Finally Had a Boy, which
characterizes parents of large families as being immoral and selfish
since their example may kill us all in a few generations.
That particular pamphlet, the green and white one, was circulated
by Planned Parenthood of Pittsburgh, and its emblem is on the
back. It stems from Planned Parenthood, Colorado.
Many of these Planned Parenthood agencies received between 80
to 90 percent of their funds from the Federal Government.
Catholic-baiting, an art form in which Margaret Sanger excelled,
continues today unabated, for the Catholic Church remains the sole
singular obstacle to the goals of the Sangerites and the Malthusians.
I have attached as the last attachment, Mr. Senator, a selection of
cartoons on population control. Two of those cartoons, for those of
you in the audience who do not have them before you, one is a picture
of the Pope with blindfolds on, covered with cobwebs, walking on
two tortoises.
The other is an article-cartoon which shows the Pope appearing
before a selection of wall-to-wall people, the quote being "I have
called you here today to warn you of the dangers of underpopu-
lation."
These two articles, there are more on the flip side, appeared in
publications of the International Planned Parenthood Federation,
which receives more than 50 percent of its annual budget directly
from the American Federal tax dollar.
How have we come to this rather sorry state of affairs? How is it
that in less than 10 years Congress and Federal bureaucrats who
once hesitated to even use the word birth control, much less imple-
ment and promote birth control, are financing today a multi-billion
dollar foreign and domestic antilife program which includes the de-
velopment of new abortion techniques.
It includes the massive promotion of abortization devices which
are today staples of Federal family planning programs. It includes
the promotion of red, white, and blue condoms to celebrate this coun-
try's upcoming Bicentennial Year in 1976.
Senator Bayh. Pardon me. How do they do that?
Ms. Exgel. Well, if you want details, the gentleman that you
would see would be Dr. Ravenholt from AID. It was his suggestion,
because the traditional condoms, not that I am very well acquainted
with them, but through my work I have seen them, are traditionally
gray and drab, and Dr. Ravenholt's feeling is that if we perhaps
come out with something like the South Sea colors or colors which
are more attractive, that they would be more easily
Senator Bayh. Yes. I get the message.
[General laughter.]
100
Senator Bath. Where does he say that? I mean do we have any-
thing public? I would like to talk to him about that.
Ms. Excel. Yes. I can easily give you that material.
lator Bath. I would sure like to see it. The material, that is.
A\\> can talk to Dr. Ravenholt about that.
Ms. Excel. Dr. Ravenholt, by the way, was the gentleman who
strung his IUD's on a Christmas tree one day outside of his hall and
1 have other comments about Ravenholt, but we will save that for
another hearing.
To go on. The storv of the rise of the Sangente antilife philosophy
to that of national 'policy is basically a complex and lengthy one.
However, it would have been said to have come from an idea to an
institution via eight plateaus, each somewhat overlapping a time
span of more than 50 years.
Sheet Xo. G. Mr. Chairman, of my testimony^ covers the eight
plauteaus. In reviewing this for you, I think it might be helpful if
you would perhaps mark down if you have not already, where this
chart comes from because it is not one of my own making.
The chart comes from the Population Reference Bureau, Wash-
ington. D.C., which is one of the very earliest of the population
control groups in the 1920's and 1930's, and so it is a plateau system
which has been worked out and which has been publicized through
an agency which is well known for its particular biases in the popu-
lation control field.
The first plateau is in 1920 to the 1940's. This is basically a few
individuals "crying in the wilderness." These early people, these were
the Sangerites, the Margaret Sangers, they were the Drysdales and
they wore the Gambles.
I do not know — Mr. Chairman, are you acquainted with the ad
which shows on television, it is a deodorant soap and you are en-
couraged to use it because of the crowded conditions in the schools?
Have you ever seen that? It is P-300. Are you acquainted with that
particular ad?
Senator Bath. Very frankly, there are a lot of things that you
are saying, which I am not acquainted with. But I will try to get
acquainted with them.
Ms. Exgel. OK. The reason I asked, is if you had trouble remem-
bering the Gamble name, they are very well known in the population
control field.
Senator Bath. What does that have to do with deodorant soap, if
T may say?
Ms. Engel. Well, thev say that because of more crowded con-
ditions children and adults should be better disinfected.
Senator Bath. Is that what it says in the ad?
Ms. Excel. Yes. And the ironic thing is. it shows a picture of a
schoolhouse and children are piling into it and it is bulging at the
us. when in truth, if you are anywhere acquainted with the recent
tistics you would know that the children are coming out of the
because of the lower birth rate.
tor Bath. T thought maybe there were other things that hap-
pened when you were in crowded elevators or schoolrooms that might
make one want to use nondeodorant soap. Now, maybe there is a
subtle hidden meaning here.
101
Ms. Engel. Yes. Gamble, I believe, well, I will get down to the
use of the mass media. Then the link might be a little more clear.
I felt it was a scare pitch. Gamble is the head of an organization
called the Pathfinder Fund, which is one of the leading population
control agencies receiving Federal funding.
So that is perhaps another name that you might want to add to
vour list.
The second plateau would go from 1940 to 1960. In this area we
have the stage in which small groups, working together informally,
and then small organizations, seek this initial capital, generally com-
ing from the foundations. And in this population control and family
planning field that I am talking about now, the groups included the
International Planned Parenthood Federation; the Population Refer-
ence Bureau, John Rockefeller III Population Council and the Ford
Foundation.
These were the early population control and family planning
interests
The third plateau, 1960 to 1968— this was the time in which the
mass media was urged to get into the population debate because there
is a certain degree of respectability one gets by having the topic dis-
cussed even if it is in a derogatory manner. This was a period in
which there was increased foundation interest and also this is the
development of the university-based centers during the 1960's. These
are presently federally funded.
I would be happy to provide you with the names of each univer-
sity-based center.
The fourth plateau, between 1965 and 1969, this is something which
will be of particular interest, I think, to you, Mr. Senator, this is the
period in which bills were introduced in Congress and this activity
was carried on by such individuals as the late Senator Gruening and
outside of Congress by individuals like William Draper. General
Draper was recently appointed and is, I believe, at the time in Bu-
charest, along with the Pro Life delegation representing the Pro Life
views, but he was one of the official U.S. delegates to the World
Population Conference now going on.
The fifth plateau is the mid-1960's. Now we are starting to get up
to date. There has always been opposition to population control from
the Catholic Church, but it was about this time that the opposition
began to, I would say for want of a better term, began to take shape,
organized against the population control agencies.
The sixth plateau is 1970. This is the stage at which, in order to
get across, in order to promote your cause — in this case, population
control and family planning — it was necessary for the appointment
of one or more high level advisory commissions of distinguished
citizens to make policy recommendations and win public support
for legislation. I think the Rockefeller Commission on Population
Growth and American Future was one of these commissions and I
think that was its particular purpose.
The seventh plateau, again in 1970, additional Congressional hear-
ings culminating in legislation, usually of moderate scope and fund-
ing. The key bills here were the Tydiiigs bill, the 1970 Family Plan-
ning bill and the Environmental Education Act, which was a very
key bill for those groups, for example ZPG.
102
The last plateau unfortunately has been reached by the Sangerites.
This was reached very recently, I would say the early 1970s. This
included several things. It included the increased acceptance of pop-
ulation control and birth control legislation. It was reflected in the
increase of the movement's structural and financial stability through
increased tax subsidies— that is, my tax dollar and your tax dollar-
through its incorporation into the institutions and mores of society.
This action is continuing at many levels, including the indoctri-
nation of young children in the elementary and secondary schools,
the mass media, the university teaching centers, technological serv-
ices provided by researchers, pharmaceutical industries, government
agencies at all levels, and professional groups, such as medical so-
cieties and foundations.
As I said, the Supreme Court decision was an inevitable one. All
of the cliches of that decision, terms like "unwanted children," terms
like "a woman's right to control her own body," terms referring to
the "population explosion," all stem basically from this same San-
gerite ethic. The decision represented an accumulation of more than
a half century of dedication and tireless effort by the Sangerites and
by the Malthusians to convince the American public of the right-
eousness of their cause, but the most important thing here, and what
I would stress most importantly, is we are not talking about private
morality, we are talking here about public policy.
This final achievement is portrayed quite candidly in a book which
I brought. The cover is quite interesting. It is a book by Lawrence
Lader, whom, again, was another gentleman on whom the Supreme
Court decision based many of its footnotes. It is called We Are
Breeding Ourselves to Death, and the front cover is a bunch of rab-
bits looking at a large family and saying, Their breeding rate is
incredible.
The section has to do with the role of Federal agencies and it has
to do with the person of former New York Senator Kenneth Keat-
ing, who was at the time the newly-appointed National Director of
the Population Crisis Committee, and it tells about how he has eaten
in the Senate dining room and I will read the statement which I
think is kind of interesting:
He ate in the private Senate dining room where he would spread the gospel
of family planning among all of their friends, particularly among the Repub-
lican leadership. As one of them recalled, "We may have kidded Ken at first,
telling him that ho should go and talk to so and so whose wife had just had
another baby, but his persuasiveness paid off and he was able to give respecta-
bility to these discussions on population."
What has all of this got to do with this subcommittee hearing on
the Human Life amendment? Simply this: For more than a year
now the Hogan-Helms amendment and other similar amendments
have been buried in the House where Representative Don Edwards
has refused to hold hearings, and in the Senate they have not been
buried. However, hearings, in my judgment, have been dragged out
month after month, possibly to get Senators and Representatives
through the November watershed without a vote on the Human Life
amendment.
T truly feel that, obviously, there is no sense of urgency about the
matter. With the exception of a handful of dedicated men this Con-
103
gress does not appear to be the least concerned that its inaction will
result in the death of hundreds of thousands of unborn children. The
fact that millions of Federal tax dollars are used to promote a
myriad of anti-life schemes, from direct abortion payments through
medicaid and aid to dependent children, to research development and
the promoting of new abortion techniques, to the indoctrination of
children up to an anti-life ethic, all this appears to raise no par-
ticular concern at family-planning authorization and appropriation
hearings.
Equally obvious is the fact that under these conditions we are
going to have a very difficult time getting a Human Life amendment
passed by both Houses of Congress and on its way to the States for
ratification.
My purpose here today is to point out the current commitment
of the Federal Government, including this Congress, to the anti-life
establishment and to show, quite briefly, how such a commitment was
obtained and the price that we are currently paying.
Mr. Chairman, it is my feeling and that of the United States
Coalition for Life that this Congress owes, it owes its vigorous sup-
port for a Human Life amendment which would protect human life
from conception, that is to say from fertilization until natural death,
to the American people. The coalition would agree that the Hogan-
Helms amendment or the newer Roncallo amendment would provide
such protection.
Apart from the merit of these amendments themselves, we feel
that Congress should recognize the fact that through its indifference,
through its ignorance, and through its inability to withstand the
pressures of the anti-life movement, It must bear its share of guilt
for the 1972 abortion decision and share its responsibility in seeing
that a human life amendment is passed this year to protect the un-
born child.
Your responsibility, Mr. Chairman, in this matter I believe is very
plain. As for our part, I believe that the coalition and the pro-life
movement in the United States will continue to fight at all levels,
will fight in the halls of Congress and will even fight in the Senate
dining rooms to educate and to promote an ideal which we believe,
Mr. Chairman, is as revolutionary in our day as the Sangerite ethic
was 50 years ago. That ideal is based on the sancity and innate good-
ness of all human life.
Thank you.
Senator Bayh. Thank you, Ms. Engel.
I appreciate your taking the time to be here. We have tried to
Ms. Engel. Mr. Chairman?
Senator Bath. Pardon me?
Ms. Excel. I was going to say before I go, I did want to offer the
Coalition's research services in the same way that Mr. VanDerhoef
offered his services. We are also available, there must be many ques-
tions that you have now or you will have in the future on the extent
to which the Federal Government is committeed in the antilife area,
and our research services are at your service.
Senator Bayh. Well, we have tried to conduct these hearings in
such a manner that those significant groups that represented large
numbers of concerned citizens on both sides would be heard.
104
How many people share all of the views that you expressed here?
How large is the U.S. Coalition for Life? Do you have State chap-
1 am just wondering how many people there are.
Ms. Excel. I am very glad you asked the question. It gives me an
opportunity to say a little bit more about Coalition. The U.S. Coali-
tion for Life is as I said before, is an international and nationally
based research agency. We have a distinguished international board
which includes as I mentioned before men like Sir William Liley,
Dr. Billings of Australia. The Board is selected for its expertise in
a wide variety of areas, from fetology to economic development, to
population to natural family planning and so forth. Our agency
operates through this advisory system.
Senator Bath. Could you submit us a list of who the Board is?
How many members do you have?
Ms. Engel, Yes. We have 33 international and national advisors,
and one of our national advisors is Senator Jesse Helms. We have
also — excuse me, Professor E. Rice. Professor Rice is the author of
the Roncallo amendment. He is also on our legal advisory board.
Now, the way we work is this. Our agency's function is primarily
research. We have a research staff. We service prolife groups in this
United States and abroad. We service approximately 1,200 groups.
Some of the groups are small. Some of the groups are very large,
consisting of 60,000 members and so forth. We are not a membership
group, but I think the feelings that are reflected here today are a
reflection of the prolife attitudes because being prolife is more than
being antiabortion. Being prolife is rejoicing in new life, in wel-
coming new life, in creating a home where new life is always wel-
comed when it sometimes is not quite planned.
[The material referred to follows :]
U.S. Coalition fob Life,
Export, Pa., September 26, 1974.
(By Randy Engel)
For the Record — Complete list of national and international board members.
Number of subscribers : 1,200 groups in the United States and abroad in
approx. 17 countries. Groups range in size from 12 members to 60,000 members
to national groups such at the New Zealand Society for Unborn Children.
Government subscribers include government agencies incl. the Agency for
International Development and the Ohio Department of Health and similar
agencies.
The Coalition recently sent a 12 member team to the Bucharest World Con-
ference composed of 6 Americans and 6 members from New Zealand, England,
Canada, South America, Haiti and Japan.
International Advisory Board Forms Nucleus of World Wide Pro-Life
Movement
The formation of an International and National Advisory Board to the U.S.
Coalition for Life, of world reknown specialists in a broad range of pro-life
Interests was announced today by Randy Engel, the Executive Director of the
Pennsylvania-based agency, as the first step toward developing an International
Coalition for Life.
Heading the International Board are pro-life leaders from Europe, Asia,
Africa. Central and South America, Canada and Australia, including Sir Wil-
liam Liley, the Father of Fetology, from New Zealand; economics and agricul-
tural expert. Dr. Colin Clark of Australia; Dr. Antonio de Soroa y Pineda, of
Madrid, pro-life author and physician for more than 25 years; Dr. E. Tremblay,
retary General of the French Pro-Life Movement Laissez Les Vivre, Paris;
105
Dr. Siegfried Ernst of West Germany, one of Europe's foremost authorities on
human sexuality, married love and pro-life issues, and Phyllis Bowman, Secre-
tary of the English Pro-Life Movement, Society for the Protection of Unborn
Children, based in London.
Also, Dr. John Billings of Australia, pioneer in natural family planning;
Demographer, Anthony Zimmerman of Japan ; International journalist Victor
J. F. Kulanday of New Delhi ; Rev. Pedro Richards of Uruguay, founder of the
Christian Family Movement in Latin America, and British scholar and critic,
Christopher Derrick. Other Advisory Members include Rev. Michel Welters of
Haiti ; John Harrington of Canada ; Jose Lucio de Araupo Correa of Brazil ;
Nora Leach of Ireland ; Right Reverend John Njenga of Kenya ; John Bergin,
M.D. of New Zealand; Rev. Joseph Fidelis of Karhataka India; Rev. Rufus
Benedict of Ceylon and Hamish Fraser of Scotland.
Specialists from the United States serving on the USCL Advisory Board in-
clude Constitutional lawyer Charles E. Rice of Notre Dame; Dr. Paul Marx
author of The Death Peddlers — War on the Unborn of St. John's University,
Collegeville, Minnesota; United States Senator from North Carolina, Jesse
Helms; Herbert Ratner, M.D., editor of Child and Family of Oak Park, Illi-
nois ; Reporter and critic George Gent of New York ; Frances Freeh author and
lecturer on population; and Robert Mendelsohn, M.D. of the Department of
Preventitive Medicine, University of Chicago College of Medicine and Dr.
Nathan Wright, Jr. writer, sociologist and advocate of strong Black support
for the Pro-Life Movement. USCL-NGO Representatives to the United Nations
are Lillian Koegler of White Plains and Bill Devlin of Life Lobby, Inc., L.I.,
N.Y.
Also George Barmann of MAP, Inc., Dayton, Ohio ; K.D. Whitehead, author
and lecturer of New York; Public Relations Consultant John V. Hinkel of
Washington, D.C. ; economist-demographer Albert Kapusinski of Caldwell Col-
lege, N.J. ; William and Connaught Marshner of D.C. ; attorney Paul Haring
of Washington, D.C. ; Obstetrician-Gynecologist William Lynch of Brookline,
Mass. ; Daniel and Constance Torisky, national leaders in the field of mental
retardation from Monroeville, Pennsylvania ; Onalee McGraw of the National
Coalition for Children, Chevy Chase, Maryland ; James Ford, M.D. of Lynwood,
California ; pro-life attorney and writer, Robert L. Mauro of Long Branch, N.J.
and James J. McGuire, public relations consultant of Harrisburg.
The immediate objective of the International and National Advisory Boards
according to USCL Director, Randy Engel, is to improve communications in
the U.S. and abroad with specialists in areas of pro-life interest and share com-
mon problems and solutions of the Pro-Life Movement. Many of the advisory
members are expected to attend the World Population Conference in Bucharest,
Rumania this coming August, she said.
The long term objective, however, Mrs. Engel concluded, is to lay the founda-
tion for an International Pro-Life Coalition. The U.S. Coalition for Life is
expected to serve as a temporary headquarters for information and research
materials for Pro-Life groups around the world until permanent headquarters
are established, probably in England, she said.
"In the meantime we can help share our common burdens and our successes
against the Anti-Life Establishment manifested by such agencies as the Inter-
national Planned Parenthood Federation and the Humanist Society," she said.
Senator Bayh. I appreciate your being here. I appreciate your
frank criticism of the Chairman and his conduct of the hearings,
although I do not come to the same conclusions you do. It is im-
portant that we protect the rights of others to differ.
You might go back and look at the way some other hearings are
conducted. I do not know whether you have been here or not
Ms. Exgel. Yes, I have.
Senator Bath. You know that a lot of these hearings we start at
10 o'clock and we are still going at 6 o'clock. I do not think there
are very many Senators that have what amount to 4 days of hearings
in 1 day to pursue the solutions, but I do not offer that as an apology.
I do not think that is necessary.
106
T would like to ask one or two questions to define your thinking
1 L6 IV.
Y"ou mentioned the multicolored packets of condoms that have
sed. Do you believe there is a place for using any of these
in any color? Is that the same as abortion?
.Ms! Engel. Well, you noticed earlier in my statement I tried to
state what my statement was about. My statement is regarding public
policy on these basic issues.
Senator Bath. Well, we are having a hearing to try to determine
whether for the 28th time, 27th time we are going to amend the
( '(institution.
Ms. Excel. That is correct.
Senator Bath. And I must say very frankly, if you will permit
me to be equally critical of you as you have been to me, you have
brought in a lot of thoughts and philosophies, which you have every
right to share, but in my judgment have absolutely nothing to do
with abortion. Since you have been very critical of some groups and
some individuals. I wonder whether you feel that any effort to try
to prevent conception is the same as abortion. The use of a condom
is one example that you brought out.
Xow, is that the same as abortion? Is that something that we
should frown upon, that we should not use, that we should have a
national policy against?
Ms. Exgel. You notice that the context in which I used the con-
dom, it was not that the condoms existed — I have no qualms about
an enterprising condom field who feels that by making a product
more attractive they are going to sell more.
Senator Bath. Take the color out of it. I am talking about — we
are talking about policy. Is it a bad policy? Does a family that uses
this kind of thing, is that the same as abortion?
Ms. Exgel. Mr. Chairman, we are talking about Federal policies
with regard to abortion. Xow, the point of my testimony
Senator Bath. That is precisely what I am saying. We are talking
about that, and I wanted to know whether the use of a condom or a
policy of using a condom, is the same?
Ms. Excel. The point is, I feel and our agency feels that we are
;it this present level. In other words, we are at the level where the
Federal Government is intimately involved in abortion, both funding
abortion, the development of abortion research.
Xow, how did one get from a situation whereby as I said before,
l'i years ago abortion was not heard in the halls of Congress, rarely
was sterilization, sometimes family planning was. How does one get
in ID years from this position of almost a nonentity to the position
where the Federal Government has permitted Planned Parenthood,
an agent of abortion, to become a Federal Agency.
tor Bath. Excuse me, Ms. Engel. There are other people that
are waiting to testify.
Ms. Engel. T understand that.
Senator Bath. I know all of these things that you have said. I am
trying to get a little personal insight to what you really believe. I
wonder if yon believe personally that the use of this type of contra-
ception device is the same as abortion?
107
Ms. Engel. My personal views on family planning is that in terms
of preconceptive situations, an individual has a right to use contra-
ceptives or to avail themselves of natural methods. That is not what
I am discussing.
Senator Bayh. Well, that is what I asked. I know what you have
been discussing. You have had quite a bit of time to discuss it and
you have done it very well. I just wanted to get the answer to that
question.
" Ms. Engel. All right, but you see, the point that this has brought
up is someone will say, well — all right, let me rephrase that question
and it might help, I think it might help you, it might help the mem-
bers of the audience, in saying that our agency has no qualms with
contraceptives being available, and we would want no restrictions on
this except those required to protect minors, but what we are talking
about is the role of the Federal Government, whether it is promoting
abortion or whether it is promoting other means of fertility control
because the basis of our research and so forth has shown that the
reason why the Supreme Court decision came to its particular de-
cision was based to a great part on the fact that the Federal Govern-
ment had made abortion respectable, and it seems to me that until
Congressmen could accept in their own minds their part in per-
mitting the state of affairs to come about, that they would reallv feel
no responsibility in coming to grips with the human life amendment.
Senator Bath. Thank you very much.
Ms. Engel. Thank you, Mr. Chairman.
And thank you to Pat Goltz for letting me take her place.
Senator Bayh. Mr. Warren Shaller, the president and executive
director of American Citizens Concerned for Life.
Ms. Engel. Excuse me. I am sorry, Mr. Chairman. Pat Goltz per-
mitted me to go ahead, and I believe she was next.
Senator Bayh. I thought she changed places.
Ms. Engel. I believe she has an earlier flight, but I do not believe
Eeverend Shaller does.
Senator Bayh. How about Mr. Shaller. Does he have an earlier
flight?
Mr. Shaller. I have one about 4 o'clock this afternoon.
Senator Bayh. All right. Let us hope we will be pretty close to
finishing by then, because this is only being included as one meeting
by Ms. Engel's definition.
All right, let us have Pat Goltz. Is that all right?
Mr. Shaller. That is fine with me.
STATEMENT OF MS. PAT GOLTZ, FEMINISTS FOR LIFE
Ms. Goltz. Mr. Chairman, members of the committee, I am Pat
Goltz, the international president of Feminists for Life, Inc. We
have members in 40 States, Canada, Britain, and Mexico. We have
an international information network, and I come before you today
to share with you some of the information we have gathered on the
questions of abortion.
At this time I would like to request my full testimony and attach-
ments be entered into the record.
Senator Bayh. We will be glad to do that.
108
Ms. Goltz. I want to be a little bit detailed about this. In the issue
of Child and Family, I would like to have you enter the article on
Nazi medicine and the one immediately following on the Ohio su-
preme court decision on abortion. The "Uncertified Human," if I
could. I would like to have the article on Michael Lichfield entered,
and on the ovulation method, I would like to have just the side with
the ovulation method on it, not the description of how to select the
sex of your child to be entered.
Senator Bayh. All right.
May 1 ask you, does the statement which you put in the record or
what you are going to tell us here describe what Feminists for Life
is? How does one describe herself as a Feminist for Life?
Ms. Goltz. Yes, I am going to do that.
Senator Bath. Good.
Ms. Goltz. I am going to actually excerpt my testimony because
of its length.
Senator Bath. That is fine. Thank you.
Ms. Goltz. We are for the legal and social equality of women and
men. We are here in support of the human life amendment to the
Constitution of the United States, which would protect human life
from conception until natural death.
Our primary reason is a feminist one. The only consistent philos-
ophy a feminist can have about other instances of human life is one
of granting dignity to all of them. We are demanding an end to class
stereotyping for women; we cannot and dare not introduce a new
class stereotype based on age, mental and physical condition, or de-
gree of unwantodness. We who were once defined as less than human
cannot, in claiming our rights, deny rights to others based on a sub-
jective judgment that they are less than human.
Our Government and our society exists to protect the rights of
each individual, and the most basic right is that of life itself.
Abortion has been presented as the solution to the problems faced
by women with untimely pregnancies. The vast majority of these
problems can be put into one category: discrimination. We are uni-
laterally opposed to discrimination based on either sex or maternal
-tat us. We reserve the right to be treated as equals and to be mothers
at the same time.
Abortion is a nonsolution. Each time a woman resorts to abortion,
she entrenches discrimination. She allows some part of the male
power structure to force her into a destructive act, in order to be
t rented with the dignity which is inherent in her.
.Many women who promote abortion do not do so out of zeal. They
are .1 riven to it. They have allowed their bodies to be raped by the
abortionists knife and like the victim of sexual assault it is a trau-
matic experieu«(>. Tt interrupts physical, hormonal, and physical life
streams. It is no wonder that in every poll, more men favor abortion
than women. Tt is no wonder that women who have been subjected
the longest to the male education establishment are most likely to
support abortion.
Women are in tune with the earth, the ecology. We do not destroy;
we create. Women recognize that human personhood begins bio-
logically at conception. We insist on the right to exist in our full
3exuahty which includes the reproductive function as an intimate
109
part of our psyche. We do not have to sacrifice our sexuality in order
to be equal. We will possess our full sexuality and we will be equal.
We insist that society provide for us and our children, all of them,
not just the ones the men want,
One technique which antilife people use, of which you should be
aware in order to watch for it, is the hard-case technique.
In this technique, the most difficult case is chosen for presentation
to the public, no matter how infrequently it occurs, and that case is
used as justification for full permissiveness in the abortion laws or
euthanasia practices. The hard case for the abortion question is a
case of rape. The hard case for the euthanasia question is the person
suffering from painful terminal cancer who is being kept alive by
heroic methods employed by an allegedly sadistic doctor.
We will comment on the rape-incest case.
Senator Bayh. How about the euthanasia case ? The sadistic doctor
which is keeping that patient alive.
Ms. Goltz. This is the way the case is presented by the people.
Senator Bayh. Is that euthanasia or is euthanasia a positive effort
to stop it?
Ms. Goltz. This is a hard case which is cited as a justification
for positive euthanasia. In other words, this is a situation that
euthanasia is supposed to correct. Just the same as, you know, we are
not here to recommend rape, and rape is the hard case for the abor-
tion question.
Incest is against the law primarily because children of incestuous
unions are more subject to genetic deformity than average. As such,
incest belongs with fetal deformity, not rape, and should be treated
as such.
Rape is the only case in which a women does not willingly consent
to intercourse. The solution to the rape problem is not abortion, but
the creation of a society in which rape is unknown.
The immediate solution is to teach women to report their rapes
immediately so that pregnancy can be prevented. Failure to do so
is implied consent to provide life support to the unborn child who
may result, The immediate solution also consists of forcing changes
in attitude toward raped women so that they are not treated as com-
mon criminals if they report their rapes.
In rape with pregnancy resulting there are actually two victims:
the mother and her baby. It is not just, to kill one of the victims for
the father's crime.
A comment must also be made about the term "compulsory preg-
nancy" which the other side uses. It is an emotion-laden term, and its
purpose is emotional. Its result is to take the discussion out of the
realm of the rational. In actual fact, even accidental pregnancies
cannot be called compulsory since the woman consented to inter-
course. Completing a pregnancy does not, however, require a woman
to raise a child. The "compulsory pregnancy" crowd claims adoption
is inhumane. They further deny that there is any implied agreement
on the part of the woman to supply life support systems to a child
who otherwise would not live. But many of them get violently angry
if it is suggested that the father has not given implied agreement by
his intercourse, to support the mother financially, even though any-
body or any group could substitute.
110
In other words, the father, whose role is not unique and irre-
placeable, is to be held responsible for his actions, but the mother,
whose role is irreplaceable, is not to be held responsible for hers.
A word about unwantedness is also necessary. The concept of un-
wantedness creates classes of people. Among the people who fit in the
second class thus created are adopted children, children of single
mothers, biracial and other nonwhite children, and females.
Concerning girls, Caroline Bird, in "Born Female," tells us that
more couples hope that their unborn children will turn out to be
male than female. If completely successful sex selection were prac-
ticed, there would be 125 boys born for every 100 girls. This quote,
by Orlando J. Miller, M.D., illustrates the resultant view when com-
bined with an abortion mentality :
"In a social climate in which unwanted pregnancy is sufficient
indication for abortion, criteria for selective abortion might be broad-
ened considerably, for example, eliminating carriers of a sickle cell
or cystic fibrosis gene or even of two X chromosomes at the request
of the parents." I might add that the possessor of two X chromo-
somes is commonly known as a woman.
Abortion is bad for society. Other persons testifying before me
have claimed that abortion reduces welfare costs. What they are
doing is citing the obvious and ignoring the possibility of new fac-
tors. I am giving you a copy of the Wynn report from England, that
is the blue booklet, which cites the damage caused to subsequent
children by abortion.
The abortion leaders here in the United States have admitted they
simply do not know anything about the effects of abortion beyond
a few weeks. One instance of damage to subsequent children alone
will suffice to show the true cost to society of abortion. A common
result of first trimester abortion is prematurity in subsequent chil-
dren. Prematurity is a major cause of cerebral palsy. Where abortion
equals live births, prematurity for the population as a whole nearly
doubles. I called the United Cerebral Palsy and asked them the cost
to society of cerebral palsy. I was told, billions of dollars in lost
productivity alone, not to mention the cost of special equipment and
training.
In Communist countries the abortion laws have been tightened
because of the cost to society and to women. Will we learn from their
experiences or must we subject millions of women to abortion to
make our own statistics? As Santayana said, "those who do not
remember the past are condemned to relive it." Abortion is bad for
women. It is bad whether legal or illegal. Legal abortionists have
compromised the basis of their medical ethics. They have compro-
mised away their healing art and have become the technocrats of
death. Why should they support the right to life and the health of
the women '. The statistics prove they do not.
Legal abortion results in an overall complication rate to women
which is horrendous: 35 percent of all women aborted in Germany
-utlei long-term ill effects. In Japan the figure is 29 percent. In
Canada, 39 percent among teenagers. In Czechoslovakia, 20 to 30
percent. In Australia, two studies show figures of 20 percent and
70 percent, the latter in a public hospital.
Ill
Logic alone should verify this point. Which is more dangerous
for women, a natural process, or the abrupt interruption of it?
Are doctors interested in the health of women? Not when 7 out of
9 male urine samples tested in abortion clinics in London were re-
ported as positive for pregnancy. Not when results are similarly
falsified in major cities in the United States. Not when the most
notorious abortionist in Canada, Dr. Henry Morgentaler, is known
to be aborting women 20 percent of whom are not pregnant.
The abortionists are candid : They are not for women's rights; they
are for their own financial gain; their own self-interest.
A number of quotations will bear this out:
From a former abortionist :
It was easy to see these women as animals.
From those still active.
The great thing about the Abortion Act is that is has given us the opportunity
to perpetuate Hitler's progressive thinking.
Another quote :
Financially, after years of struggle, I can't help feeling a little like the
Texan who drilled for water and struck oil.
Another quote :
A syndicate invited me to be its medical director for up to $250,000 a year.
Another quote :
But if the courts declare abortion laws unconstitutional, the doctors will say,
"Now it is against the law not to do abortions" — and then they will do them,
for in some cases they may be sued if they don't.
Quote :
Each country will have to decide its own form of coercion. At present, the
means available are compulsory sterilization and compulsory abortion.
This quote was from Dr. Alan Guttmacher:
In 1967, women coming in to see us about terminating pregnancy had to jus-
tify that. Now I feel about any pregnancy if a woman can justify keeping a
pregnancy, that is okay. But if she can't, get rid of it.
The abortionists are using women's bodies to promote the Govern-
ment ideal of population control : They are gaining financially from
using women's bodies to perpetuate the Government's population
policy.
They have indicated to each other that the tactic is to obscure
the humanity of the unborn child, and the fact that abortion kills
a baby. They instruct each other never to call the unborn children
babies but always to call them fetuses. Thus they have used a scien-
tific term of somewhat obscure meaning to the general public as a
niggerizing term much like the term broad as applied to women. The
purpose : to dehumanize. Do they honestly believe that this child
is only a blob of tissue? Well, as one satirical author from Canada
would have it, everyone knows that the baby's body is instantaneously
formed at the moment of birth !
Feminists who hold that unborn babies are only blobs of tissue are
known in prolife feminist circles as "blob feminists".
But what do proabortionists really think about the humanity of
the unborn and about the nature of abortion? I have some further
quotes :
112
Abortion is the taking of a life.
Another quote:
An abortion . . . kills the life of a baby after it has begun.
Another quote:
Fertilization, then, has taken place : a baby has been conceived.
Quote :
The staff are now required to be involved in the induced abortion of a large
fetus which neither resembles a "blob" ... or a "group of cells"— but very much
resembles a baby.
And finally, quote:
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 consid-
erable semantic gymnastics which are required to rationalize abortion as any-
thing but taking a human life would be ludicrous if they were not often put
forth under socially impeccable auspices. It is suggested that this schizophre-
nic sort of subterfuge is necessary because, while a new ethic is being accepted,
the old one has not yet been rejected.
Every quote which I have read you so far comes from leaders,
either groups or individuals, in the abortion movement who want
abortion on demand and more.
So it appears that women's bodies are not only being used to pro-
mote population control, but they even lie to women about the un-
born child, and about what abortion does. If there was ever a philos-
ophy which was degrading to women, it is the philosophy that we
must lie to women, cheat them, ant fool them in order to get their
money and reduce population. Do women want to be instruments to
perpetuate Hitler's progressive thinking? No, we do not.
Do wo need abortion? The answer to that question is no. That is,
if we are willing to care enough. There are many ways in which
women can be helped without creating destruction. I will name a
few. Enforcement of existing laws against discrimination, such as
the fifth and 14th amendments, the Fair Labor Standards Act of
1963, title VII of the Civil Rights Act of 1964, the Equal Employ-
ment Opportunities Act of 1972, the Educational Amendments of
1972, and the Public Health Service Act as amended in 1971. The
ratification and implementation of the equal rights amendment. The
establishment of maternity communes where single women with chil-
dren, bom and unborn, can go and live and share resources. Hospices
for the elderly. An effective natural birth control method, such as
the ovulation method, which allows women to control their fertility
before conception without drugs, devices or surgery, and is 98.5 per-
cent effective. The recognition that consent to sex' on the part of a
man is an unspoken contract guaranteeing that he will support a
woman and her unborn child until birth takes place. The creation
of ;i society in which rape is unknown. Corporations who are willing
to take the blame for the pollution they cause rather than blaming
the future generation. An ecological movement that teaches indi-
viduals t<» respect the environment, starting with the elimination of
Jitterbugs. A society dedicated to the proposition that we should
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remove political barriers to food and fertilizer distribution instead of
people.
A society which is not dedicated to planned obsolescence, which is
dedicated to the proposition that the way to stabilize the population
is to help the third world nations become fully developed technologi-
cally and educationally, that recognizes that each human crisis leads
to progress, that recognizes technology as a servant and not the mas-
ter of men and women, that does not direct itself against the bodies
and minds of women. In other words, a society which respect each
and everyone of us as a unique and irreplaceable individual entitled
to life, liberty, and property.
A final comment about choice of language in the human life amend-
ment. The purpose of the amendment is to reverse the Supreme Court
decisions of January 22, 1973. Any reasonable amendment should do
this.
However, it is our feeling that a good amendment would have the
following characteristics: (1) It will specifically define human life
as beginning at conception or fertilization, which is synonymous;
(2) It would provide protection for all innocent life from conception
till natural death, and include the aged, ill, incapacitated, and the
physically and mentally handicapped; (3) It will prohibit both State
and private action or inaction which will lead to the deliberate de-
struction of innocent life without due process of law; (4) It will not
permit abortion for physical health or mental or social considerations,
but will permit abortion when there is an immediate physical threat
to the life of the mother, from the pregnancy; (5) It will not permit
the States to allow abortion or positive euthanasia to be legal. We
do not cry "States rights" in reference to sexual discrimination; we
will not permit the cry "States' rights" for killing based on ageism.
At this time I would like to add a few comments not in my printed
testimony.
I am submitting to you, personally, Senator Bayh, a letter request-
ing that our attorney, Donald L. Billman, be permitted to testify
orally before this body. He will testify as our representative. We do
not feel that our testimony as an organization is complete without
you having had the opportunity to ask him questions. He is one of
the foremost authorities in the field.
In a recent letter to you he made a couple of points worth repeat-
ing and I quote his letter:
The basis for all individual rights is the Bill of Rights— The first ten Amend-
ments— however, it is the Fourteenth Amendment which championed the cause
of civil liberties for all persons and assured the supremacy of the Constitution
and the rule of law, justice and reason over the fickle nature of the human race.
After ten years of studying, it is my opinion that this Amendment, the Four-
teenth, applies to the unborn child as well as the black, the Indian and the
woman. It is my belief that the Amendment is clear that "no life shall be taken
without due process of law" and that "no person shall be denied equal protec-
tion of the laws" ! The survival of all civil rights and liberties is now in peril !
It was no mere accident that the attack was initiated by an assault upon the
Little Unborn Baby, for he is the most helpless member of our society. The
Unborn Child was chosen with care, for he is the epitome of the "unpopular
client," and it was felt — possibly not incorrectly — that he would find few de-
fenders. He is a client who can neither pay us, vote for us, thank us or or-
ganize a riot. The implications of "abortion on demand" are apparent. If this
inroad upon the vitality of the Constitution goes unchecked and reversed a
114
most powerful precedent will have been established for the proposition that an
Individual's life can be snuffed out at the whim of "Big Brother." If we who
beUeve in the Bill of Rights and true civil liberties do not rush to the defense
of the Unborn Child, we will one day soon find ourselves with a handful of
"rights" as diflBeult to retain as a handful of sand.
Ami 1 end that quote.
I might add that in the book Treblinka which describes why Jews
did not revolt against Xazi extermination a very successful technique
was used. The population was divided into two groups and only the
lives of those in the unfortunate group were taken.
The rest felt safe and so did not rebel. The safe group was divided
again and again until all were exterminated.
Gentle people, we have been divided. The unsafe group is the un-
born. How long will it be before we are in the unsafe group? The
handwriting is on the wall for those who can see it.
I am open to questions.
[The full statement of Ms. Goltz follows :]
Testimony by Pat Goltz, International President, Feminists for Life, Inc.
Senator Bayh, members of the committee, and members of the audience :
I am Pat Goltz, international president of Feminists for Life, Inc. We are
based at Box 5631, Columbus, OH 43221. We have members in 40 states, Canada,
Britain, and Mexico. We have an international information network, and I
come before you today to share with you some of the information we have
gathered on the questions of abortion and euthanasia. We are for the legal
and social equality of women and men. We are her in support of a Human Life
Amendment to the Constitution of the United States, which would protect
human life from conception until natural death. Our primary reason is a fem-
inist one: the only consistent philosophy a feminist can have about other in-
stances of human life is one of granting dignity to all of them. We are demand-
ing an end to class stereotyping for women ; we cannot and dare not introduce
a new class stereotype based on age, mental and physical condition, or degree
of unwantedness. We who were once defined as less than human cannot, in
claiming our rights, deny rights to others based on a subjective judgment that
they are less than human. We are all interdependent, the independent woman
no less than the unborn child ; the child no more than the most independent of
us. Without each other's help, we would all perish. Our government and our
society exists to protect the rights of each individual, and the most basic right
N that of life itself; no other right can be exercised where that right is not
guaranteed.
Throughout this talk I shall refer to the unborn child primarily in the mas-
culine. My reasons are several : 1. We do not expect to wait on our rights until
the language changes to accommodate us. 2. This is a convention of the English
language, and the masculine refers to both genders where the gender is not
known, and 3. It will be less confusing. We do not depend for our dignity on
using the feminine gender in certain contexts ; our dignity is inherent.
Abortion has been presented as a solution to the problems faced by women
with untimely pregnancies. The vast majority of these problems can be put
into one category : discrimination. We are unilaterally opposed to discrimination
based on either sex or maternal status. We reserve the right to be treated as
equals, awl to lie mothers at the same time. We will not accept the current
either/or choice. Abortion is a non-solution. Each time a woman resorts to abor-
tion, she entrenches discrimination. Each time she resorts to abortion, she re-
moves her voice from the arena in which equality for women is being demanded
and won. She allows some part of the male power structure to force her into a
tractive act, in order to be treated with the dignity which is inherent in
her. She may do serious damage to her own spirit. Many women who promote
abortion do not do so out of zeal : they are driven to it. It is the only way they
can live with their consciences. This is the reason why their movement has the
characteristics it does. They are not vocal until they find another person or
institution to attack. They have allowed their bodies to be raped by the abor-
tionist's knife, and like the victim of sexual assault, it is a traumatic experience.
115
It interrupts physical, hormonal, and psychical life streams. It is no wonder
that in every poll, more men favored abortion than women. It is no wonder that
women who have been subjected the longest to the male education establishment
(the college educated) are most likely to support abortion. Women are in tune
with the earth, the ecology. We do not destroy; we create. Women recognize
that human personhood begins biologically — at conception. We insist on our
right to exist in our full sexuality, which includes the reproductive function
as an intimate part of our psyche. We do not have to sacrifice our sexuality in
order to be equal. We will possess our full sexuality ; and we will be equal. We
insist that society provide for us and our children — all of them, no just the
ones the men want.
Some who call themselves feminists claim that men are making the decisions
for their lives. And so it is. They talk about all the men who testified herej and
the few women who did. They talk about this committee being made up solely
of men. And they conveniently forget that the abortion decision in the Supreme
court was made by seven old men ! It is convenient to claim that pregnancies
being forced on women, by men, but that abortion isn't. They simply ignore the
facts. They ignore that the Playboy Foundation, whose motto is sexual exploi-
tation of women, promotes abortion with its money. They ignore the fact that
Rockefeller money teams up with government money (voted by men) to promote
abortion. They ignore the fact that Rockefeller is a male chauvinist, who re-
marked to a young woman carrying a pro-life picket sign, "Don't knock it, girl.
You might need one someday." They ignore the fact that abortion makes women
more subject to sexual exploitation. If one does not have the truth, one ignores
the facts. One selects the rhetoric that pleases one. Let us see who are the prom-
inent people in the abortion movement. With a few exceptions out of the fem-
inist movement itself, they are all male: Hefner, Rockefeller, Guttmacher,
Packwood, Lamm, Edwards, Tietze, Ehrlich, Israel, Hall. If your choice is
based on who is promoting it, abortion loses.
Pro-abortion feminists also conveniently forget that at major conferences on
abortion, the attending feminists have been treated shoddily. A movement which
is really aimed at the liberation of women would welcome the feminists.
One technique which anti-life people use, of which you should be aware, in or-
der to watch for it, is the "hard case" technique. In this technique, the most
difficult case is chosen for presentation to the public, no matter how infre-
quently it occurs, and that case is used as justification for full permissiveness
in the abortion laws, or euthanasia practices. The hard case for the abortion
question is the case of rape. The hard case for the euthanasia question is the
person suffering from painful terminal cancer who is being kept alive by
heroic methods employed by an allegedly sadistic doctor.
We will comment on the rape-incest case. Most legislators who are basically
pro-life find this the hardest to deny. However, Feminists for Life denies it.
Let us take incest first. Incest is against the law primarily because children
of incestuous unions are much more subject to genetic deformity than average.
As such, incest belongs with "fetal deformity", not rape, and should be treated
as such. Incest is used only as an excuse for abortion, because no person will-
ingly reports incest under other circumstances ; it. is too hard on the reputa-
tion of the people involved. Rape is the only case in which a woman does not
willingly consent to intercourse. It is felt that sinoe she did not consent, she
should not be penalized by having to continue to carry the child. However, abor-
tion is also traumatic. The solution to the rape problem is not abortion, but trie
creation of a society in which rape is unknown. The immediate solution is to
teach women to report their rapes immediately so that pregnancy can be pre-
vented. Failure to do so is implied consent to provide life support to the unborn
child who may result. The immediate solution also consists of forcing changes
in attitude toward raped women so that they are not treated as common crim-
inals if they report their rapes. In rape, with pregnancy resulting, there are
actually two victims : the mother, and her baby. It is not just to kill one of the
victims for the father's crime.
A comment must also be made about the term "compulsory pregnancy" which
the other side uses. It is an emotion-laden term, and its purpose is emotional.
Its result is to take the discussion out of the realm of the rational. In actual
fact, even accidental pregnancies cannot be called compulsory since the woman
consented to intercourse. Completing a pregnancy does not, however, require
a woman to raise the child. The "compulsory pregnancy" rhetorictitians deny
adoption because it weakens their case. They claim adoption is inhuman ! ! They
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further deny that there is any implied agreement on the part of the woman
to supply life-support systems to a child who otherwise would not live, but
many of them get violently angry if it is suggested that the father has not
given an implied agreement by his intercourse, to support the mother financially,
even though anybody or any group could substitute. In other words, the father,
whose role is not unique and irreplaceable, is to be held responsible for his
actions, but the mother, whose role is irreplaceable, is not to be held responsible
for hers. This very position contradicts the claim by the same group that we
should not have equal rights without equal responsibilities and therefore should
submit to the draft if the Equal Rights Amendment is ratified.
A word about unwantedness is also necessary. The concept of unwantedness
creates classes of people. Among the people included in the second class thus
created are adopted children, children of single mothers, biracial and other
nonwhite children, and females. A short example of each: regarding adopted
children, this comment by Abigail Van Buren : "I think all children should be
wanted by their natural mothers, don't you?" Regarding children of single
mothers: some abortion authorities consider illegitimacy as practically synony-
mous to unwantedness every time they cite how abortion will cut down on ille-
gitimacy. If necessary they are prepared to use coercion to make the statistics
even better. Concerning the nonwhite, a Columbus woman who is active in the
black community once remarked to me that abortion should be allowed for
biracial children because neither the black nor the white community accepts
them readily and they meet more discrimination than most nonwhites. As the
mother of an adopted biracial child, I felt like telling her, "as long as being
biracial is considered a sufficient excuse for abortion, biracial people will not
be fully accepted by either community." Concerning girls, Caroline Bird, in
Born Female, tells us that more couples hope that their unborn children will
turn out to be male than female. If completely successful sex selection were
practiced, there would be 125 boys born for every 100 girls. The quote by Or-
lando J. Miller, MD, illustrates the resultant view when combined with the
abortion mentality :
"In a social climate in which unwanted pregnancy is sufficient indication for
abortion, criteria for selective abortion might be broadened considerably, eg
eliminating carriers of a sickle cell or cystic fibrosis gene or even of two X
chromosomes at the request of the parents, who have their own ideas of what
constitutes the optimal brood of offspring for them, qualitatively as well as
quantitatively."
It may come as a surprise to some that a very widespread and viable fem-
inist movement dedicated to the preservation of unborn life, and the life of the
elderly and defective, exists. The reason for this is quite simple : suppression. In
a movement supposedly geared to the destruction of stereotypes, a movement
which is supposed to guarantee our right to be free to be ourselves, namely the
pro-abortion feminist movement, we find the strangest of fascist tendencies.
Women are socially ostracized in feminism for speaking in favor of life. Thus,
pro-life feminists surfaced like the steam from an overheated boiler ; it built
up until the boiler could no longer hold it and then it exploded. We receive
numerous stories of suppression. The National Organization for Women sup-
presses any woman who is pro-life. It does not matter how sincere her fem-
inism on the basic issues. I will give a few examples : California, 25 women ex-
cluded from the local Now chapter — the rescheduled their meeting place and
informed only the pro-abortion women. Oregon : the Now newsletter denounces
us as pretending to be feminists. Chicago, Pittsburgh, New York City: Now
members actively kick out pro-life members. Houston : Now women who are pro-
life successfully suppressed and isolated, from all over the country, not daring
to speak out on abortion at all. Ohio : a pro-life Now member denounced in
public in the rotunda of the State House; the president of the chapter orders
her not to discuss abortion with any Now member at any time or place. The
Now chapter refuses to sell advertising space to Feminists for Life, although
the revenue is needed badly. Other feminists groups act likewise: Massachusetts
women's liberation group, all 300 of them, kick out on pro-life member. Birth-
right chapters hassled all over the country by feminists. The League of Women
Voters in some New England states orders their members to drop out of Right
to Life Altoona, Pennsylvania: the local Now chapter tries to threaten any
radio station which plays Seals and Crofts' Fnborn Child; and succeeds. Other
places where the song is suppressed include Boston. New York City.
Another reason why strong feminist support for unborn and other unwanted
life has been obscured is the nature of the treatment in the media. As one
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woman, a feminist reporter from Canada, put it to me recently, "the press tried
to find a plank in the feminist platform they could support without jeopardizing
their own entrenched power structure to invasion by qualified women. They
found it : abortion." Another example of what the press has done is their re-
sponse to our recent picketing of the national convention of Now : in most cases
the name of the picketing group was not even mentioned, and the two major
wire services left the strong implication (by conveniently quoting Ms. Wilma
Scott Heidi, outgoing Now president, immediately following their description
of the picketing) that we were "right to lifers". While we do not mind that
designation, it is misleading, because not all right to lifers are feminists, the
movement being as broad based as it is, and because we feel that the mislabeling
implication, if intentional, was done because the media do not wish to admit
that there is feminist opposition to abortion. If the media are not afraid of
us, let them call us by our right name. We are PRO-LIFE FEMINISTS. We
support full equality for women. Our reason for picketing was twofold : the
denial of rights to unborn women by the preexisting feminist groups, and the
social ostracism and fascist techniques used against feminists who are pro-life
and not afraid to say so.
People who know they have the truth do not fear open debate. We are sup-
pressed because they know we are right !
We keep hearing the claim that we are a tiny, vocal minority. A few figures
prove otherwise. In Ohio, before the Supreme Court decision, the Ohio Abor-
tion Alliance had 800 members, as reported to me by its president. At the same
time, the Ohio Right to Life Society had 40,000 members. Currently, the Ohio
Abortion Alliance has been dissolved, and it is estimated that the Ohio Right
to Life Society has between 100,000 and 150,000 members. The National Organi-
zation for Women has 36,000 members currently, while the League of Women
Voters has 160,000. The LWV is believed to have recently decided to support
abortion. If so, it would be the largest organization that does. However, the
pro-life movement at present is estimated to number at least 3.5 million.
The pro-abortion people sought at first to repeal or modify firm abortion laws
by means of a state referendum. They succeeded by a narrow margin in Wash-
ington state, before the sleeping giant of the grass-roots pro-life population
woke up. They missed badly in Michigan and North Dakota, where referenda
were voted down overwhelmingly 2 to 1 in Michigan (after only about 3 weeks
of pro-life publicity) and 4 to 1 in North Dakota. It is interesting to note that
the pro-abortion forces often cite Michigan because they believed the victory
there was due to a very Catholic influence, so that they could exercise their
religious bigotry, but they never mention North Dakota, because as everybody
knows, North Dakota is only about 14% Catholic, and if everyone of them had
voted pro-abortion, the referendum would still have been defeated by an over-
whelming majority. Having discovered who the real minority was, the pro-
abortion forces tried in only a few places to achieve permissive abortion in the
legislatures, but fought their battle after that predominantly in the courts,
which could be responsive to clever propaganda primarily because they are
not answerable to the electorate. And so, even though pro-abortion people make
loud noises now and then about a national referendum, they have never actively
sought one because they know they are the vocal minority. If I am wrong, let
them prove it.
Consider the polls : when Gallup or Harris polled a small group of people on
abortion, their questions did not even contain the word "abortion". Asking how
anyone can take a poll about anything without using the term referring to the
subject in question, another poll was conducted, using the word "abortion",
which gave the viewpoint to pro-life by a sizeable margin.
Abortion is bad for society. Other persons testifying before me have claimed
that abortion reduces welfare costs. What they are doing is citing the obvious
and ignoring the possibility of new factors. First of all and most importantly,
you are not doing the poor a favor by having as your reason the reduction of
costs. Moreover, some abortion leaders have stated that abortion is not intended
as racial genocide, it just happens to work out that way. I am giving you a
copy of the Wynn Report, from England, which cites the damage caused to
subsequent children by abortion. The abortion leaders here have admitted
they simply don't know anything about the effects of abortion beyond a few
weeks. One instance of damage to subsequent children alone will suffice to show
the true cost to society of abortion. A common result of first trimester abortion
is prematurity in subsequent children. Prematurity is a major cause of cerebral
118
palsy. Where abortion equals live births, prematurity for the population as a
win tie nearly doubles. I called United Cerebray Palsy and asked them the cost
to Boclety of cerebral palsy. I was told, billions of dollars in lost productivity
alone, not to mention the cost of special equipment and training. If we do not
stop abortion soon, we can expect the cost, both financially and in terms of
human lives, to double very soon. And that cost in financial terms alone will be
in Millions of dollars. In Communist countries the abortion laws have been
tightened because of the cost to society and to women. Will we learn from their
experiences or must be subject millions of women to abortion to make our own
statistics? As Santayana said, "those who do not remember the past are con-
demned to relive it."
Abortion is bad for women. It is bad whether legal or illegal. Legal abor-
tionists have compromised the basis of their medical ethics : they have com-
promised away their healing art and become the technocrats of death. Why
should they respect the right to life and health of the women? The statistics
prove they do not. Legal abortion results in an overall complication rate to
women which is horrendous : 35% of all women aborted in Germany suffer long-
term ill effects. In Japan, the figure is 29%. In Canada, 39% among teenagers.
In Czechoslovakia, 20-30%. In Australia, two studies show figures of 20% and
70%, the latter in a public hospital. The death rate from statistics taken in
numerous countries is twice as high for first trimester abortion as it is for
pregnancy and childbirth. Logic alone should verify this point : which is more
dangerous for women: the natural process, or the abrupt interruption of it?
If you are interested in preserving the health of women, pass a Human Life
Amendment and enforce it. Dr. Christopher Tietze, who is pro-abortion, and a
renowned demographer, says that legalizing abortion does not reduce illegal
abortion rates. Other authorities claim that 90% of illegal abortions are done
by competent doctors. What legalizing abortion does is to increase the total
done. Because you have the legal abortions on top of the illegal ones.
Are the doctors interested in the health of women? Not when 7 out of 9 male
urine samples tested in abortion clinics in London were reported as positive
for pregnancy. Not when results are similarly falsified in major cities in the
United States. Not when the most notorious abortionist in Canada, Dr. Henry
Morgentaler, is known to be aborting women, 20% of whom are not pregnant.
The abortionists are candid : they are not for women's rights ; they are for their
own financial gain ; their own self-interests :
From a former abortionist : "It was easy to see these women as animals."
From those still active : "The great thing about the Abortion Act is that it has
given us the opportunity to perpetuate Hitler's progressive thinking."
"Financialy, after years of struggle, I can't help feeling a little like the
Texan who drilled for water and struck oil." "A syndicate invited me to be its
medical director for up to $250,000 a year."
"But if the courts declare abortion laws unconstitutional, the doctors will
say, 'Now it is against the law not to do abortions" — and then they will do them,
for in some cases they may be sued if they don't."
"Each country will have to decide its own form of coercion. At present, the
means available are compulsory sterilization and compulsory abortion." ". . .
failure of the voluntary restraints has made government controls (on popula-
tion ) absolutely necessary."
"Population control, whatever form it takes, must be mandatory to be suc-
cessful. We must consider enforced contraception, whether through taxation on
surplus children, or through more severe means, such as conception-license re-
placing or supplementing marriage license." "Just as we have laws compelling
death control, so we must have laws requiring birth control — the purpose being
to ensure a zero rate of population growth."
Tbe abortionists are using women's bodies to promote a government ideal of
of population control : they are gaining financially from using women's bodies
to perpetuate the government's population policy.
They have indicated to each other that the tactic is to obscure the humanity
of the unborn child, and the fact that abortion kills a baby. They instruct
each other never to call the unborn chilren "babies" but always to call them
"fetuses". Thus they have used a scientific term to somewhat obscure meaning
as a nlggerlzing term much like the term "broad" as applied to women. The
purpose: to dehumanize. Do they honestly believe that this child is only a
blob "f tisane? Well, as one satirical author from Canada would have it. every-
one knows that the baby's body is instantaneously formed at the moment of
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birth! Feminists who hold that unborn babies as only blobs of tissue are
known in pro-life feminists circles as "blob feminists". Futhermore to those
who claim the baby is part of the mother's body, we state: either we women
are sometimes part male, or we are all female and proud of it. Or to put it
in the words of a 9 year old: Did you ever see a woman with testicles? But
what do pro-abortionists say about the humanity of the unborn? About the
nature of abortion?
"Abortion is the taking of a life." — Mary Calderone, MD
"An abortion . . . kills the life of a baby after it has begun."— Planned
Parenthood
Fertilization, then, has taken place; a baby has been conceived." — Alan
Guttmacher, MD
"A woman's right of privacy may well include the right to remove an un-
wanted child at least in the early stage of pregnancy." —Judge Gerhard
Gesell, in US vs Milan Vuitch
"The staff are now required to be involved in the induced abortion of a large
fetus which neither resembles a 'blob' ... or a 'group of cells'— but very much
resembles a baby." — Christa Keller, Pamela Copeland, abortion counsellors
"The fetal deformity clause is not included for the sake of the fetus (no one
can speak for him no matter how hard some try) or for the sake of society,
but for the sake of the pregnant woman." — Jimmye Kimmey, Association for
the Study of 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 results has had 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 necesary because, while a new ethic is being accepted, the
old one has not yet been rejected." — from an editorial favoring abortion-on-
demand in the Journal, California State Medical Association.
So it appears that women's bodies are not only being used to promote popu-
lation control, but they even lie to women about the unborn child, and about
about what abortion does. If there was ever a philosophy which was degrading
to women, it is the philosophy that we must lie to women, cheat them, and
fool them, in order to get their money, and reduce the population. Do women
want to be the instruments to perpetuate Hitler's progressive thinking? No,
we do not.
I'd like to talk for just a moment about euthanasia. Feminists for Life has
not had a stress euthanasia as much because so far, we have not received the
kind of suppression on this issue that we receive on the abortion issue. But
euthanasia is an area of no less concern. It appears to be self-evident that one
possible reason for the promotion of euthanasia is because women are treated
as second-class citizens. You will note that the Supreme Court declared that
abortion is to be permitted because the unborn are not human "in the whole
sense". Well, neither are the elderly, the retarded, the unwanted infant, or
the physically deformed. Who comprise the majority of the elderly? Women.
60% of the persons above age 65 are women. They are considered a burden
on society because most of them are poor : they don't get enough social security.
In past societies women were not persons "in the whole sense" and in our
society, soon elderly women will not be persons "in the whole sense" either. We
are opposed to euthanasia because it takes innocent life in over half of whom
are unwanted women.
Do we need abortion and euthanasia for women? The answer to that question
is no. That is, if we are willing to care enough. There are many ways in
which women can be helped without creating destruction. I will name a few.
Enforcement of existing laws against discrimination, such as the fifth and
fourteenth amendment, the Fair Labor Standards Act of 1963, Title VII of
the Civil Rights Act of 1964, the Equal Employment Opportunities Act of
1972. the Education Amendments of 1972. and the Public Health Service Act
as amended in 1971. The ratification and implementation of the Equal Rights
Amendment. True equality of opportunity in wages, training, and advance-
ment in the employment field. Nondescrimination in employment and other areas
regarding the pregnant. The establishment of maternity communes, where
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single women with children, born and unborn, can go and live and share
resources. Hospices for the elderly. An effective natural birth control method,
such as the Ovulation Method, which allows women to control their fertility
before conception without drugs, devices or surgery, and is 98.5% effective.
The creation of a masculine image which included the strength of character
in a man to take the responsibility for his sexual acts : the recognition that
consent to sex on the part of men is an unspoken contract guaranteeing that
he will support a woman and her unborn child until birth takes place. The
creation of a society in which rape is not considered possible. Where men
do not regard rape as a mark of manhood, and where women are capable of
defending themselves from attackers, and do not hesitate to do so. A society
where raped women are not presumed guilty until proven innocent. Corpora-
tions who are willing to take the blame for the pollution they cause, rather
than blaming the future generation, and babies in general. An ecological
movement that teaches individuals to respect the environments, starting with
the elimination of litterbugs. A society dedicated to the proposition that we
should remove political barriers to food and fertilizer distribution instead
of people. A society which is not dedicated to planned obsolescence. A society
which is dedicated to the proposition that the way to stabilize the population
is to help the third world nations become fully developed technology and
educationally. That recognizes that just as technology can be used to create
problems, so can it be used to solve them. That recognizes that each human
crisis leads to progress. That recognizes technology as the servant and not the
master of men and women. That does not direct itself against the bodies and
minds of women. In other words, a society which respects each and every one
of us as a unique and irreplaceable individual, entitled to life, liberty, and
property. Dare we demand so much? How can we demand any less?
We urge you to favorably report the human life amendment out of committee
speedily. Time is of the essence. For the children killed today, tomorrow will
be too late.
A final comment about choice of language in the human life amendment : the
purpose of the amendment is to reverse the Supreme Court decisions of January
22, 1973. Any reasonable amendment should do this. However, it is our feeling
that a good amendment will have the following characteristics :
1. It will specifically define human life as beginning at conception or fertiliza-
tion, which is synonymous.
2. It will provide protection for all innocent life from conception till natural
death, and include the aged, ill, incapacitated, and the physically and mentally
handicapped.
3. It will prohibit both state and private action or inaction which will lead
to deliberate destruction of innocent life without due process of law.
4. It will no permit abortion for physical health or mental or social consider-
ations, but will permit abortion when there is an immediate physical threat to
the life of the mother, from the pregnancy.
5. It will not permit the states to allow abortion or positive euthanasia to be
legal. We do not cry "states' right" in reference to sexual discrimination ; we
will not permit the cry "states' rights" for killing based on ageism.
We must correct the negativism of the death cult speedily so we may con-
centrate on true, positive solutions to human problems. Let us get the Human
Life Amendment ratified and then let us begin to work on the solutions, starting
with this committee.
[From the Chicago Tribune]
Abortion Exploits Women
(By Gloria V. Heffernan. M.D.)
After centuries of being treated as objects, women are being presented the
final mechanical insult as a constitutional right.
The strange compulsion for abortion is in reality the ultimate exploitation
of women by immature men : technocrats, generally, imbued with a myopic
sense of social awareness and unable to interpret or control their own sexuality.
The playboys of the Western world and the authoritarian "adolescents" of the
Socialist world sacrifice their women in order to preserve their dream of
llbidinal freedom. It is the women who must go to surgery over and over again
121
to insure this dream. The whimpering male refused to take responsibility for
his sexual behavior.
It is no surprise that Playboy Foundation money is now competing with
Rockefeller Foundation money to promote the concept of permissive abortion.
The rich man's solution lias become the purile male's solution and the last
vestige of responsibility and commitment has disappeared.
It is the woman who has been deliberately misled by the male-dominated
medical prefession into thinking that abortion is merely contraception slightly
postponed. The serious physical and psychic consequences of this self-serving
deception are muted despite a wealth of medical literature from the United
States and foreign countries.
It is a national disgrace that the American College of Obstetrics and Gyne-
cology is not in the forefront of the fight against abortion. The depth of this
deception is brought out in two recent articles. Dr. Richard L. Burt in editorial
comment in Obstetrics & Gynecology, April, 1971, terms permissive abortion
"the Fifth Horseman" riding with famine, death, pestilence, and plague.
He catalogs the serious side effects reported from Scandinavian and Eastern
European countries with a long experience in legal abortion. These include
hemorrhage, infection, prematurity in subsequent pregnancies, sterility, perfora-
tion and the psychic sequels of guilt and depression.
This alarm is echoed in another article in the British journal Lancet, De-
cember 4th, 1971, in which Dr. J. A. Staillworthy decries the conspiracy of
silence about the side effects of abortion.
A minimal adherence to the concept of informed consent is ignored by most
referral services and pro-abortion professors of obstetrics and gynecology. This
frightening failure of the medical profession is most apparent in the continued
use of the "salting out" method of abortion by American physicians in the face
of the condemnation of this procedure by the Japanese medical profession.
The recent report by Christopher Tietze in Family Planning Perspective,
October, 1971, of a 22.4 percent serious complication rate using this procedure
documents the American tragedy— a needless mortality and morbidity that
incriminates the American Medical Association and the American College of
Obstetrics and Gynecology in corporate malpractice for not banning this pro-
cedure.
The greatest tragedy, however, lies in the fact that doctors have renounced
their ethics to become social technicians rationalizing their position with dreary
cliches and denying their own science to make it fit vague sociological impera-
tives. The traditional responsibility in obstetrics for two patients has been
denied by the abortionists when the whole thrust of scientific medical practice
has been to bring the healing arts to the child in the uterus, just as it does
to any patient.
We find the medical technicians claiming the organs and bodies of the aborted
children for human experimentation; some of them still alive. What horrible
echoes are these from the recent past !
What can we expect from a society that can rationalize away the most fun-
damental of human values — the value of life? What is to become of a medical
profession that substitutes self-serving cliches for its ethics? What is to become
of women who would ask the courts to institutionalize death as a legitimate
tool for solving personal problems? Such a society is doomed to an unending
spiral of violence if women do not change it.
Women must deny violence a legitimate place in our society by rejecting the
first violence — abortion. The women of this society must say to purile men that
the game is over. You can no longer exploit our bodies either in your center
fold or in your hospitals.
Feminists foe Life
Our organization takes two stands: (1) Full equality for women in all areas.
(2) The right of every baby to be born. We demand an end to all legal, social,
and economic discrimination against women, including mass media stereotypes.
We recognize all people as individuals with equal rights, including the unborn.
We believe it is inconsistent to demand rights for ourselves and deny them to
unborn babies. Without the right to life, all other rights are meaningless.
Furthermore, since roughly 50 percent of the unborn are girls, half the abor-
tions kill our sisters.
122
We hope to see an end to proabortion stands in other feminist organizations.
Bv diverting time and energy into abortion legislation, these groups have de-
emphasized the struggle for legal and social equality. In addition, they have
deterred many potential feminists from joining the movement.
We are an independent organization. We accept men on an equal basis with
women. Our goals now follow :
(1) To encourage prolife feminists to join the feminist movement.
(2) To acquaint prolife people with the goals of feminism.
(3) To provide a forum for women who feel that joining a proabortion
feminist organization would compromise their principles.
(4) To encourage women to become educated in pregnancy, childbirth, and
other aspects of female sexuality.
(5) To help people to become knowledgeable on both sides of the abortion
issue
(6) To encourage efforts to alleviate the problems in society which cause
women to seek abortions.
(7) To promote equal opportunity and equal protection of the laws regardless
of SGX.
(8) To take an active part in eliminating sexual stereotyping in the mass
media advertising, and childhood education.
(9) To promote a strong, flexible family structure.
(10) To encourage women to take pride in being women.
(11) To help women recover their historical and cultural heritage.
(12) To develop strategies for teaching women how to develop competitive
techniques in the world without sacrificing warmth and nurturance in the home.
(13) To develop strater'es for teaching men how to be nurturant toward their
children without sacrificing their self-image or their ability to function competi-
tively in the world.
(14) To develop strategies for gaining equality through our own strengths
as women and not at the expense of the rights or property of others.
(15) To preserve the right of those women who wish to remain in the
home as full time wives and mothers.
[From the National Catholic Reporter]
Talk of "Wanted Child" Makes fob Doll Objects
(By Sidney Callahan)
I'd like to start a campaign against the idea of "the wanted child." This
phrase is dangerous to children, even in small doses. The people who use the
phrase in efforts to control population or sell family planning programs are
well meaning, but they are sowing the seeds of subtle destruction.
The corruption involved is quite simple to grasp. If you start talking and
thinking about a child as a "wanted child" you cannot help but put the idea
into people's heads that children exist and have a right to exist only because
someone wants them. And alas, the opposite conclusion is also there waiting
for us : if it's an "unwanted child" is has no rights.
It's destructive of family life for parents even to think in these categories
of wanted and unwanted children. By using the words you set up parents with
too much power, including psychological power, over their children. Somehow
the child is being measured by the parent's attitudes and being defined by the
parent's feelings. We usually want only objects, and wanting them or not
implies that we are superior, or at least engaged in a one-way relationship,
to them.
In the same way, men have "wanted" women through the ages. Often a
woman's position was precarious and rested on being wanted by some man.
The unwanted woman could be cast off when she was no longer a desirable
object. She did not have an intrinsic dignity beyond wanting. That's what they
mean in protests against being a sex object.
Well, talking about the "wanted child" is making a child a "doll object."
When you want one, you make one or buy one, and it then has a right to exist
i glorified form of property. And woe be to the child who is no longer
ated, or who is imperfect in some way. Or who in the church does not satisfy.
Has satisfaction been given, sir? If not, the merchandise is returnable, you
know.
123
The point I'm trying to stress, of course, is that old idea in our common
culture that each human being has inviolable rights and dignity no matter
what. If you're a Jew and they don't want you in Nazi Germany, it's Germany's
shame. If you're black and they don't want you in the club, that's the club's
crime. If you're a woman and they don't want you in the job, it's their fault.
The powerful (including parents) cannot be allowed to want and unwant people
at will.
In family life, this idea of unique inviolable dignity and intrinsic value is
especially needed. Since emotions are so strong and despendency needs are so
urgent, the temptation to cop out is ever present. We don't hang in there be-
cause we always want to, or want something or somebody. The old parent, the
sick spouse, the needy child are not always wanted.
So who cares what you want, or whether other people want you? Human
beings are human beings. Every individual has his rights. A child's very exist-
ence is claim enough.
[From the National Catholic Reporter]
Feminist as Antiabobtionist
(By Sidney Callahan)
Let's get our feminism together. Right now. The feminist cause is being be-
trayed by the men and women pushing for public acceptance of the principle
of abortion on demand. Arguments used in urging routine abortion deny funda-
mental values guiding the whole women's movement.
On the issue of abortion radical feminists have completely identified with the
male aggressor ; they spout a straight machismo ideology, with a touch of Adam
Smith. The worst of traditional male power plays are being embraced and
brandished by those who have suffered from them the most. Every slogan in
the pro-abortion arsenal is male-oriented and a sell-out of feminist values. For
instance :
(1) "The fetus isn't human and has no right to life." But the feminist move-
ment insists that men cease their age-old habit of withholding human status
from women, blacks, Jews, Indians, Asians and any other helpless or different
instances of human life. Women encourage rights to life, and value potential
life. To deny the fact that human life is always a growing process through time
is a failure of imagination and emphathy. Out of sight, out of mind, may do
for a bombardier's conscience but not for a feminist movement dedicated to
ending unilateral suppression of life. Embryonic life is also life, life with a
built-in future.
(2) "Any problem pregnancy should be terminated early by a qualified med-
ical professional employing the best technological techniques." Yet the feminist
movement has persistently protested impersonal professional technologies which
efficiently ignore not only emotions but the real roots of complex human prob-
lems. Males have always searched, destroyed, cut, burned and aggressively
attacked anything in the way without regard to context, consequences and
natural interrelationships. Women have been committed to creative nonviolent
alternatives which seek more lasting solutions. Feminist values are highly
attuned to conservation and the achievement of social and ecological health.
What irony that a society confronted with plastic bags filled with fetal re-
mains, or fetal "wastage," could worry more about the problem of recycling
the plastic. So where have all the flowers gone?
(3) "A woman has the right to control her own body." How valiently the
feminist movement has struggled against the male obsession to control. As
they find in every prison, to fully control, you kill. The Dostoevski hero comes
to mind who extinguished an insignificant life in order to assert his existential
freedom to control his destiny. Any view of mere bodies as separate and sub-
ordinate to the self smells of an alienation reminiscent of male gnostic anxiety.
Men have always tried to detach themselves from the body, viewing female
bodies in particular as a form of property. Men are only too happy to separate
female "reproductive systems" from the self. More middle-class men favor
elective abortion than any other group, not only because it accords with male
convenience, male strategies, but also because it suits the male norm of a
human body. Full feminine sexuality is a threat, better to have women look
124
at their own bodies as objects which they can manipulate at will and keep
under control. Privately, discreetly, efficiently, with no messy demands.
(4) "Males have no right to speak or legislate on the abortion issue, since
abortion is solely a matter between a woman and her physician.'" This argu-
ment is used to browbeat men (how to mau-mau the male power structure),
but it is contrary to other feminist demands. Women now insist on their right
to speak out on war not only because their husbands and sons die, but because
it is a human concern. Feminists justly demand equal male-female cooperation,
decision-making and mutual responsibility in all areas of social life. In par-
ticular, women will no longer bear the sole responsibility for childbearing.
They insist (quite rightly) that men and the society at large accept their re-
sponsibility for the next generation by providing public day-care, health pro-
grams and other measures which will support and help women. Only with
abortion does community concern become disallowed. Men are angrily dis-
qualified, although over half the aborted fetuses are male and all fetuses are
fathered. Each fetus not only has a direct link to a male, but genetically and
physically it is linked to the human species as a whole. Who owns the human
species? Or the gene pool? Who owns life? We don't let people in the name
of private property pollute their own water, contaminate their own air or
shoot their own eagles; so how can aborting potential human life not be a
public socio-legal concern.
I propose that a truly feminist approach to abortion would ;
(1) Display an advocacy of life no matter how immature, helpless or different
it is from white, middle-class, adult males who have heretofore preempted the
right to be fully human.
(2) Affirm that full feminine humanity includes distinctly feminine func-
tions. Women need not identify with male sexuality, male aggression and
wombless male lifestyles in order to win social equality. Getting into the club
is not worth the price of alienation from body-life, emotion, emphathy and
sensitivity.
(3) Assert that abortion is a two-sex community decision in which the rights
and welfare of women, fetuses, children, fathers, families and the rest of the
community be considered and arbitrated. The whole society has a responsibility
for human life and the next generation. Women and men should urge and sup-
port nonviolent creative alternatives to abortion. Facing such a painful problem
we cannot give in to simpleminded sexist slogans and a property rights ethic.
Life is not that easy.
[From the National Catholic Reporter]
"Abortion Positions — So Who's the Radical?"
(By Charles E. Fager)
What service does abortion serve in our society? It eliminates an obstacle
to the freer mobility of certain women within it. The letters were full of
outraged detail about just how much of a social and economic disaster an un-
planned pregnancy can be for a woman — particularly a woman alone, particu-
larly a woman trying to break out of the old wife-mother role she has been
raised to fit into. To me this is all evidence that our social order is organized
inhumanely, that it excludes as well as the nonwhite, the poor, the aged and
others, pregnant mothers and the unborn.
It is enough of a struggle to raise wanted children adequatey if you are not
affluent, to try to do it alone, and while pursuing a vocation, is extremely
difficult. It is not hard to see why, as one writer put it, a woman could feel
"She has the right to decide against physical pain, discomfort and disfigure-
ment ; she has a right to decide against rearing a fatherless child ; she has
the right to decide against assuming ultimate responsibility for another human
being; she has the right to decide against the physical and emotional drains
of child-rearing. She has the right to decide for autonomy; she has a right
to decide for satisfaction in work and fulfillment in non-biological creation; she
lias a right to decide in favor of that freedom traditionally granted man,
namely, to pursue truth or folly, unfettered, unencumbered, nurtured instead
of nurturing, encouraged rather than encouraging, comforted as opposed to
giving comfort, mobile, not static, moving forward as a whole, free, growing
organism."
125
If a decision to abort means a choice between these options, it is hardly sur-
prising that many women would choose the abortion.
But why couldn't women faced with such a repugnant choice perceive abor-
tion as a radicalizing experience, an ordeal into which they are coerced by
an inhuman social order, and through which they could better be able to see
its inhumanity? Why couldn't that experience be seen the way submitting to
the draft and serving in Vietnam has been by so many GIs — as a situation in
which they are coerced into participating in the immoral destruction of life,
and which left them full of rage at those who put them in it?
The answer appears to be the acceptance of the fetus-as-nonhuman argu-
ment. Militant feminists have felt it necessary, as part of their campaign to get
restrictive abortion laws repealed, to insist that the act is of no moral weight
whatever. As one writer insisted to me, "including the unborn in the question
of abortion is absurd. . . . The carrying of this unwanted tissue can be com-
pared to having an incurable cancer in your body. What morals are involved
in removing a tumor, after all it is also an unwanted mass of tissue that the
body has created?"
There are, as many of us have read elsewhere, weighty theological figures
ready to agree, among them none more forthright than professor Joseph Flet-
cher, who wrote to me, "A fetus is a parasite, tolerable ethically only when
welcome to its hostess. If a woman doesn't want a fetus to remain growing
in her bodj she should be free to rid herself of the unwelcome intruder."
To me this is a tragic mistake ; and the sanction given it by the use in the
Supreme Court's decision of a concept of "viability" is the weakest part of
Justice Blackmun's opinion. I have examined carefully every rationale for
such a position, and have found none that is not shot through with internal
inconsistencies and contradictions. Most boil down to the proposition that a
fetus is not human if someone else, usually the mother, chooses not to regard
it as human, a standard we would not permit to be applied to any other form
of human life, potential or realized.
But the point to keep before us is that the source of most "unwantedness"
is institutional. It is the present social order, and the attitudes that sustain it,
which will not accept and make provision for "unwanted" pregnancies (that is,
pregnancies not supported by the options of affluence) and the women who
carry them. This "unwantedness" is enforced on women through a frightening
panoply of sanctions.
Many of the letters insisted that as a male I could not posisbly have any
understanding of what a woman faced with an unplanned pregnancy had to
deal with. Yet I think that most of my generation faced a situation which,
viewed from the angle I have just suggested, is in many ways analogous.
I am speaking of the draft. It served the function of providing the manpower
for our war machine, a function that in our time has been seen widely as
morally repugnant. It came upon us individually, in isolation, with demands
for a substantial chuck of our time (much more than a pregnancy incidentally),
and possibly our lives. Great institutional forces came with it to enforce its
demands upon us. In this situation each of us had to make hard choices, moral
choices, choices which made a great deal of difference in our lives.
The point of the analogy is that for many men, in many ways, the draft
became the occasion of consciousness-raising and then resistance, a resistance
from which a movement among them and many others grew. And now that the
battle over legalities seems to have taken a decisive turn, why could not
the women's movement come to regard unplanned pregnancies as occasions for
resistance and mutual support because the preservation and potential of life
was involved?
Such a perspective would, I believe, take it in significantly different and
more promising directions than the present disregard of fetal humanity and the
moral weight of abortion decisions can. If it is unacceptable for a society to
treat people of color or people without money as less than suman and not
entitled to a fair share of the fruits of that society, how can we be ready to
permit individuals to make such judgments independently of moral consider-
ations?
A radical understanding of the meaning and value of life, in my view, must
be, in fundamental opposition to that of our established order, as broad and
nearly absolute as possible, both horizontally — including all manner and con-
dition of people — and vertically, from the moment life can be detected until
the moment it ends. We should work to build a society that embodies this view
126
as closely as possible; and where the forces of the status quo deny it, even
and particularly in its beginning, that is where the making of a revolution
should start.
Abortion is the taking of a life. —Mary Calderone, MD, former medical di-
rector of Planned Parenthood.
An abortion . . . kills the life of a baby after it has begun. —Plan Your
Children for Health And Happiness, NY, August, 1963, Planned Parenthood.
Fertilization, then, has taken place ; a baby has been conceived. — Alan Gutt-
maeher, MD, late president of Planned Parenthood.
Each country will have to decide its own form of coercion. At present: the
means available are compulsory sterilization and compulsory abortion. — Alan
Guttmacher, MD.
. . failure of the voluntary restraints has made government controls (on
population) absolutely necessary. — Congressman Richard Lamm.
Population control, whatever form it takes, must be mandatory to be suc-
cessful. We must consider enforced contraception, whether through taxation
on surplus children, or through more severe means, such as conception-license
replacing or supplementing marriage license. — Robert Ardrey, Life.
Just as we have laws compelling death control, so we must have laws re-
quiring birth control — the purpose being to ensure a zero rate of population
growth. — Edgar Chasteen, in The Case for Compulsory Birth Control.
In a social climate in which unwanted pregnancy is sufficient indication for
abortion, criteria for selective abortion might be broadened considerably, eg
eliminating carriers of a sickle cell or cystic fibrosis gene or even of two X
chromosomes at the request of the parents, who have their own ideas of what
constitutes the optimal brood of offspring for them, qualitatively as well as
quantitatively. — Orlando J. Miller, M.D. in Symposium On Intrauterine Diag-
nosis.
[From the Columbus Citizen-Journal, Mar. 29, 1974]
In Pregnancy Counseling — Delays Hurting Abortion Efforts
(By Sylvia Brooks)
Planned Parenthood of Columbus is at least two weeks behind in problem
pregnancy counseling, and in some cases the delay is so long women wanting
simple abortions can not get them in local clinics.
The problem, according to executive director Mary Harris, is that the agency
does not have enough staff to handle the volume, and now over 55 per cent of
the patients are being referred by private physicians.
Local clinics, using a simple surgical procedure, will only do it on women 12
weeks pregnant, or under. Over that, the procedure becomes more complicated
and should be done in a hospital.
Mrs. Harris feels Planned Parenthood has been "caught in the middle," and
the agency has had to stop all other kinds of sexual and reproductive counsel-
ing to meet the need.
The Citizen-Journal talked with many agencies doing similar counseling,
Planned Parenthood staff, patients and others.
All said some women are being forced to go to New York because they can
not get an appointment at Planned Parenthood before the 12th week of their
pregnancy.
Planned Parenthood does not give out telephone numbers of local abortion
clinics over the telephone, and requires people to come into the agency in per-
son for information.
Mrs. Harris says the personal contact is important :
"We feel it is our obligation to counsel with a patient and not just be a
conduit. We counsel in all our other programs."
However, she said because of the increased demand, the board of the agency
would probably reconsider the prohibition against giving telephone information.
Many professional counselors, however, do not agree. Ann Kaplan, with the
Abortion Education Soeiety of Ohio, says Planned Parenthood should give out
clinir numbers over the telephone and not insist on counseling.
"They (Planned Parenthood) see abortion as a major, traumatic experience
nnd that each woman needs professional counseling. I just can't agree," Mrs.
Kaplan said.
127
One of the biggest problems faced by Planned Parenthood is that since their
abortion counseling programs were announced, private doctors have started
referring patients there at an increasing rate.
Many professionals cannot understand why doctors, now that abortion is
legal, cannot handle the counseling and referral of their own patients, as they
do with other medical problems.
However, it appears that even doctors who are not against abortion are
reticent to become involved in the abortion issue, and refer their patients to
other agencies.
Planned Parenthood officials feel the problem of abortion counseling is a
community one, and hope to try to form a coalition of agencies doing counseling
to set up a central information and referral system.
Mrs. Harris says the Medical Advisory Committee of the agency will meet,
and she hopes they approach the Academy of Medicine to ask for help in work-
ing out the problems.
Mrs. Harris also said the agency would try to find funds to hire additional
counseling staff — they now have two people working 60 hours total per week —
and would try to work with all community groups interested in the problem.
[From the Feminists for Life, Jan. 14, 1974]
The Abortion Kickbacks
(By Roger Rapoport)
Not all Los Angeles hospitals have to pay $50 to $100 to acquire patients. At
least two prime suppliers of patients, the Rev. J. Hugh Anwyl — who used to
be in the business of saving souls before he got into selling bodies — and Dr.
Morton Barke firmly believe in volume discounts. During 1971 andn 1972 they
sent 7,706 abortion cases to suburban Montclair Hospital at a mere $20 a head.
The deal between the doctor and the reverend began in 1970. Anwyl, a former
minister of the Mt. Hollywood Congregational Church, was then director of
Clergy Counseling Service for Problem Pregnancies, and he also processed
abortion referrals for Planned Parenthood/Los Angeles. When Anwyl met Dr.
Barke, the reverend immediately began referring abortion cases to the gyne-
cologist's personally owned West Coast Medical Group. Then Dr. Barke helped
set up National Abortion Council to get still more patients. NAC did little more
than take calls from abortion patients who were responding to NAC ads — and
referred the callers to Dr. Barke.
The Clergy Counseling Service and National Abortion Council referrals made
Barke's West Coast Medical Group flourish. In the summer of 1971, Dr. Barke
went to A.R. Markey, chairman of Century Medical Inc., which owned Mont-
clair Hospital. Why not turn the money-losing, 34-bed facility into an abortion
hospital? Barke promised to supply Montclair with 2,000 patients a month if
Markey would pay $20 a head to National Abortion Council. Markey agreed and
Barke began shipping in patients. But not enough. He fell short of his guaran-
tee. So he went to Anwyl, who came up with a new source of patients. In the
fall of 1971 Anwyl merged Clergy Counseling Service with Planned Parenthood/
Los Angeles and directed abortion referral work for both organizations. Since
federally funded Planned Parenthood is the country's largest family planning
agency, with over 700 clinics nationwide, it was easy for the Rev. Anwyl to
persuade affiliates in states where abortions were illgal to refer patients to his
friend, Barke, for abortions at Montclair.
By November, 1971 Barke's West Coast Medical Group had expanded to a
staff or eight doctors, two nurses and 20 clerical workers. Thanks to Anwyl,
patients were flying in from all over. They were picked up one by one of the
air-conditioned, 12-passenger vans from Barke's group, whisked to Montclair
for quick abortions and returned to the airport within hours. Montclair paid
$20 to Planned Parenthood/Los Angeles or NAC for each patient, regardless
of whether she paid cash or was covered by the California version of Medicaid,
Medi-Cal. The kickbacks were made under the guise of payments for psycho-
logical testing and evaluation, which consisted of the following at NAC : just
prior to their abortions, National Abortion Council patients filled out a one-
page questionnaire. These forms were taken to the NAC office where a clerk
rubber stamped them with a psychologist's name.
128
Montclair also kicked back $20 per patient to Planned Parenthood/Los
-Vngeles for "psychological testing and evaluation." According to sources who
w.-rr with West Coast Medical Group at the time, there is no evidence that
the 'psychological testing and evaluation" was actually provided to these
patients by Planned Parenthood. Moreover, Planned Parenthood/Los Angeles
operates under a federal grant channelled to it through the Los Angeles Re-
gional Familv Planning Council, and this grant provides money for "counsel-
ing." Under the terms of the grant, Planned Parenthood/Los Angeles is pro-
hibited from receiving any second pyament for counseling services to abortion
patients. But between November 3, 1971 and March 28, 1972, it received from
Montclair $52,940 for "psychological testing and evaluation" of 2,647 abortion
patients. ,. . _, ,
According to the Rev. Anwyl— who became executive director of Planned
Parenthood/Los Angeles in 1972— the organization's '71 and '72 financial re-
ports do not show any hospital income for psychological testing and evaluation
or any other direct services charged to abortion patients. "We never accept
any payments of any kind on abortion referrals," the Rev. Anwyl says. "It's
unethical. We don't allow it because it might influence where we send our
patients. We want to be free to snd our patients to the best possible hospital."
The fact is that I have copies of 20 checks that were sent from Montclair to
Planned Parenthood/Los Angeles in payment for "psychological testing and
evaluation." The first four of these checks were sent directly to Planned Parent-
hood. But Dr. Barke wanted to be sure that Planned Parenthood was not get-
ting paid off for any of his NAC patients, so he asked Century Medical Inc.,
the owner of Montclair Hospital, to send further checks to him for forwarding.
On December 14, 1971 Century issued a check for $2,220 made out to Planned
Parenthood-West Coast Med. Group, Inc. It was mailed to the West Coast
Medical Group office and marked "personal and confidential," attention of Dr.
Morton Barke. The next eight checks were also sent to Dr. Barke who, after
examining them, had them delivered to the Rev. Anwyl. This procedure upset
Anwyl, so Century tried to strike a compromise by sending the final seven
payments — which were still marked to the attention of Dr. Barke — directly to
Planned Parenthood.
Planned Parenthood/Los Angeles was violating the terms of its federal grant
in two ways. First, it was receiving a second payment for "psychological testing
and evaluation" of abortion patients, not permissible under the terms of its
grant. Second, it was failing to report this income to the federal government.
Both these violations could result in termination of the government funding.
More important, if there was appropriation of unreported revenue by an execu-
tive of a federally funded organization, this could lead to felony prosecution.
As for Dr. Barke, his funneling of checks to Planned Parenthood could run
afoul of the California Business and Professional Code, which prohibits physi-
cians from directing money to sources of patients. Also, any direct or indirect
financing of National Abortion Council by Dr. Barke would be a violation of
the California Business and Professional Code.
In 1972, Dr. Barke and the Rev. Anwyl became dissatisfied with the $20-a-
patient foe at Montclair. Barke tried to talk Century chairman A.R. Markey
into selling him Montclair Hospital, with Anwyl sitting in on some of the nego-
tiations. When that deal did not go through. Barke and Anwyl tried to boost
Montclair's kickback by $5 per patient. Markey balked, and the abortion patient
suppliers pulled out of Montclair in the spring of '72.
After withdrawing from Montclair. they directed their patients to Bel Air
for a time. Then. Barke became an owner of Inglewood Hospital, which im-
mediately began receiving the maiority of Planned Parenthood's cases, then
approaching 1.000 a month. The National Abortion Council changed its name
tn tlie National Family Planning Council and began offering a full range of
patient services, but the vast majority of its abortion cases ended up at Barke's
Inglewood Hospital.
[From the Medical World News, Nov. 9. 1973]
AnoRTioN in Japan After 25 Years
Risintr literally from the ashes of World War II, Japan has produced the
economic- miracle of the 20th century. To help make that miracle possible in its
bungary overcrowded islands, the Diet passed a liberal abortion law in 1948 as
a means of holding the population down.
129
But on the 25th anniversary of that law, a saddened Japanese physician
told colleagues from nearly 50 nations that his country's abortion policy has
had some unfortunate consequences : Abortion is replacing contraception, and
Japan has too few young people to care for the growing proportion of its
population over 65.
"Abortion has become a way of life," Prof. T.S. Ueno of Tokyo's Nihon
University told the Ninth Congress of the International Academy of Legal and
Social Medicine, in Rome. "Moral life has become disorderly. It is an age of
free sex, and the life of the unborn is not respected. We can now say the law
is a bad one."
Japanese physicians, Dr. Ueno said, can receive a "designation" to perform
abortions after a two-year "apprenticeship." A doctor having this designation
may operate if in his judgment "the mother's health may be affected seriously
by continuation of pregnancy or delivery, from the physical or economic view-
point."
A year after the "Eugenic Protection Law" was passed, 250,000 legal abor-
tions were done, Dr. Ueno reports; last year no fewer than 1.5 million were
done.
"Abortion has become a substitute for contraception," he says. "About half
the Japanese women who have abortions admit that they did not even try to
prevent conception. Induced abortion has become so common it is almost com-
pulsory for many women ; they feel it is a part of life in Japan that can't be
helped. Some apartment house managers enforce a policy that no family in
the building may have more than two children. Pregnant mothers are often
asked by their gynecologists whether or not they intend to carry the child to
term. The entire economy has hardened around the two-child family."
Many Japanese are ashamed of having abortions, he suggested. Public opinion
surveys suggest that most Japanese women do not approve of abortion even
though they practice it. Only 18% of women surveyed said that they "did not
feel anything in particular" after their first abortion, 35% "felt sorry about
the unborn child," and 28% felt they had "done something wrong," Dr. Ueno
told the congress.
"Induced abortions are a source of easy income for doctors," he charged.
"Cash is paid, so they don't have to be paid through health insurance; many
find abortion to be a convenient source of side income."
He also charged that legal abortions are "not remarkably safer" than illegal
ones. He believes that the sudden change from pregnancy causes an imbalance
of the sympathetic nervous system and has many other ill effects. Among them :
dysmenorrhea, sterility, habitual spontaneous abortion, extrauterine pregnan-
cies, cramps, headache, vertigo, exhaustion, sleeplessness, lumbago, neuralgia,
debility and psychosomatic illness, perforation of the uterus, cervical lesions,
infections, bleeding, and retention of some tissue.
Another consequence of 25 years of abortion, according to Dr. Ueno : Japan
has 14 million people over 65 among its population of 108 million. In the next
20 years the over-65 population is expected to reach 29 million, of a total of
130 million Japanese. Because this means too many old people for the young
to support, he predicts strong pressure for euthanasia.
"Easy abortion has been a bad experience for us," he told MWN. "It is now
very difficult to control or to eradicate, despite growing criticism. It has be-
came a way of life; the law might be changed but the practice cannot be
controlled.
"The sooner Japan returns to a solid law which forbids the taking of the
life of the unborn, the better for our nation. Just as we need guard rails,
signal lights, and speed limits, so we need precise laws governing abortion.
We need such laws to save us from our individual and collective weakness,"
he concluded.
[From the Uncertified Human]
Euthanasias The Latest Threat Is on the Rise
A year and a half ago two things used to be said : that the euthanasia move-
ment would take ten years to materialize and that perhaps it never would. The
first prediction is coming true eight years too early and the second statement
is being made considerably less often.
130
PROPAGANDA BEGINNING
In the January 14, 1972 issue of Life Magazine, an article appeared outlining
the dilemma of the mother of a 1-year old mongoloid child "still unwanted and
unnamed" who cost her parents much time and expense in treatments and care.
He mother is quoted as saying : "Why, when there are too many people in the
world, keep alive an unwanted, malformed child. ... I still say if there
was a place where I could take this child and she would be put to sleep per-
manently, I would do it." The story is a very sad one. It follows two articles
on men who personally decided to discontinue agonizing treatments for terminal
diseases and so die in peace. Yet strangly, the story of the mongoloid girl was
also headed, "The Right to Die". Now really, the woman was campaigning
for the girl's death, not her own. She admitted in a subsequent letter her in-
tention to get a bill passed permitting her to put the child to sleep. Wouldn't
"right to kill" be more appropriate?
The Executive director of the fastgrowing Euthanasia Educational Fund
centered in New York State informed the editor in a recent personal letter
that
Your letter is very perceptive about the other questions which arise and
many of our members as individuals do believe in making a means of dying
available, in providing for those who cannot speak for themselves and in the
humane withdrawal of support from defective babies. However, all of these
are illegal and as an organization we do not advocate any of them.
If "providing for those who cannot speak for themselves" were legal, what
provisions might they advocate?
PUBLIC SUPPORT FOR MERCY KILLING
A Gallup Poll published in the Toronto Star for Sept. 27, 1972, indicated
that the majority of people in Canada seem to favour mercy-killing at the
patient's request. Yet, on the opposite page, there was a much-featured article
by the United Church's former moderator (for our American readerSj the
United Church of Canada is one of the bastions of lethal liberalism in this
country) concluding that the only reason we do not similarly end the lives
of those who have not requested it but whose existences have become mean-
ingless is "selfish indifference". It seems that the idea of killing at the patient's
request and killing without it when we feel justified are difficult to separate.
People are becoming particularly vocal on the question of deformed or defective
children, who are generally considered, as such, to be unwanted. Dr. Colin
Ferguson, president elect of the Canadian Paediatrics Society, addressed the
annual meeting, called for life-and-death guidelines for mongoloid children.
(Toronto Star, July 16, 1972) He said, "It is a supreme penalty to put on some
families to save the life of a mongolian idiot." He noted that a young mother
could have other normal children if the defective baby were phased out and
the total happiness would be easier for all concerned if socially acceptable
guidelines were available", he concluded. Dr. Ferguson mentioned that another
type of child also merited infanticidal consideration, those afflicted with
myelomeningoceles, results in leg paralysis and lack of bowel control. He cited
a Dr. David Morley of Britain who claims that such children cost the state
one million dollars per year. Interestingly, on August 8, 1972 a surgeon at
London's Hospital for Sick Children told the London Sun that these children
should be left to die. He believes that a more selective approach is needed with
respect to survival of the handicapped. Of course, selectivity can pose problems
too. A controversy arose recently among anaestheticians, reported in 06 Oyn
News, January 1, 1971, No. 1, p. 1 as to whether an anaesthetician should
attempt to revive an infant he had accidentally anaesthetized during the
birth process, insofar as that infant might be mentally retarded. One doctor
objected to allowing the infant to die on the grounds that, without prior knowl-
edge of the actual IQ potential of the infant, one could not gauge how much
below normal it would be if at all.
Thorp is a good deal of confusion about the meaning of the term "euthanasia".
To some, it means allowing a person to die who wants to. and to others it
means putting a person to sleep. It has been used to mean withdrawal of sup-
port without the patient's consent or putting the patient to sleep without his or
her consent.
131
THE "HONOURABLE" MAN
Chaplain Reeves at Columbia University remarks that the dilemma in his
view is basically this : there are two supreme challenges facing us all : to find
an honourable equivalent to Spartan exposure on the rocks at the beginning
of life and an honourable equivalent to the Eskimo hole in the ice at the end
of life. (Not. Observer, Mar. 4, 72) One wanders in passing just what it is
that the Reverend Reeves finds to be less than "honourable" about the Eskimo
way if the end results are the same. It is the primitive methods he objects to?
Are antiseptic hypodermics more "honourable" than the ice?
LIKE THE ABORTION CAMPAIGNS
All this bears a profund resemblance to many a successful abortion cam-
paign, a fact which may disturb those who "fear that this sort of thing may
get out of hand". Indeed it may — in fact it already is, out of hand. Let us
elaborate. In the article in Life, the emotionally wrenching plea for a very
hard case is reminiscent of the earlier pleas for abortion. "The mother whose
child will almost certainly be born deformed" drew a great deal of sympathy
for the "right to abortion". The mother whose child is born deformed is be-
ginning to draw sympathy for infanticide. It does not really matter how you
define infanticide; whether it involves "withdrawal of support" or drowning
the child in a bucket is immaterial : If you want the child to die and you make
that child die — that is infanticide.
On March 5 of this year Time Magazine reported on an even clearer case
from the Netherlands, this time it was senile euthanasia. The case was very
bad indeed, as the old mother was quite sick. Her doctor daughter put her to
sleep without her consent, and then because she was a "woman of principle"
informed the nursing home director. The police were described as failing "to
act against the popular doctor" and, prevailed upon, the public prosecutor
charged her "reluctantly". Thus the stage is set: a hard case (hasn't anyone
heard the principle that hard cases make bad laws?) a doctor of remorselessly
high ethical principles, a popular doctor at that, and a judicial group which
unwittingly makes a verdict out of its obvious unwillingness to act. By the
time the case goes to trial it is a public issue and everything about the actual
case except its emotional aura is forgotten. For one thing, someone started a
foundation for voluntary euthanasia, either forgetting or not caring that this
case was about involuntary euthanasia. A group of doctors signed an open
letter to the Minister of Justice accusing themselves of the saime crime. This is
very similar to the "abortion forums" where doctors admit to performing il-
legal abortions. The fact that the government was unwilling to bring Dr.
Postma to trial gave safety in numbers to other physicians and it soon began
to be supposed that whatever a number of physicians do must be morally right.
In other words, as soon as the government admitted that the hardness of the
case made them reluctant to try Dr. Postma on the principle, they found them-
selves having to accept the principle itself. The euthanasia foundation acquired
3,000 members in a week. The petition in support of (presumably involuntary)
euthanasia that was circulated in Dr. Postma's town got two thousand signa-
tures. The Minister of Justice pointed out the difference between active and
passive euthanasia, admitting that the latter is widely and justifiably used
in hopeless cases. Then he illustrated a common confusion in thinking by
asking rhetorically, where would active euthanasia lead? This allowed many
people to get the idea that mercy-killing would be all right as a principle
so long as it did not overstep some mythical boundary of propriety, to be
defined by the Minister of Justice perhaps, or whoever else feels qualified. No
wonder then, that so many euthanasia lobbies flourished in the utter confusion
of the case.
AN EASY EXCUSE
Dr. Postma pointed out that her mother's suffering was not "unbearable",
and said, "Her physical suffering was serious, no more. But the mental suffering
became unbearable." For some reason, euthanasia advocates, like abortion ad-
vocates, always fall back on "mental suffering". Because it admits of no particu-
lar definition or alleviation, as physical suffering does, it makes at much easier
excuse to plead at an emotional trial. Dr. Postma said that the mental suffering
"was most important to me. Now, after all these months, I am convinced I
should have done it much sooner." Should she have done it before her mother
132
started to suffer mentally? She was given one week suspended sentence and
a year's probation. Her friends handed her a single flower each in sympathy.
Her supporters considered it a defeat that she was not acquitted.
What is important about this case is only partly the suffering involved. Per-
haps Dr. Postma's mother was better off dead. What the case shows as far as
the staff of the Uncertified Human is concerned, however, is the appalling in-
ability of the courts to understand that they are dealing, not with a particular
emotional case but with a principle of whether or not we are to legislate into
existence a concept of "life without value". The Dutch judiciary did realize
that the situation "might lead" to unpleasant consequences but what they did
not see is that the situation is an unpleasant consequence in itself.
Have they forgotten so soon ?
The Ovulation Method
A study of the secretions of the vagina by two doctors from Australia, Lyn
Billings MD and John Billings MD, has finally revealed a way to truly control
our own fertility, through knowledge of how our body works. It is called the
Ovulation Method because it teaches us to know when we are ovulating. The
doctors found out that a woman's secretions give a clear indication of when she
is fertile. The cycle goes like this : the woman menstruates ; after she has
finishing menstruating there is an indefinite period during which she had no
secretions at all, called the "dry days". These are followed by several days
in which there are secretions which increase ; during this time the woman is
fertile because the secretions keep the sperm alive and conduct them upward.
She will ovulate in time for the sperm to reach the egg. The secretions become
slippery and will stretch without breaking, and then become egg-white. On this
day the woman ovulates. Counting this day as day one, the woman should
count a total of four days. For four days the egg is passing out of her body and
she is still fertile. After these four days the egg is gone and it does not matter
whether there are more secretions or not ; the woman can't get pregnant
because the egg is gone. Menstruation begins exactly 14 days after the egg-
white day, the ovulation day, for most women. This method of detection should
be tried by a woman for a month or two without intercourse until she becomes
familiar with it because the semen will confuse her at first. After that, since
the semen is different, the woman can tell the difference. The two doctors
state that women do not ovulate twice except on the same day.
Widely fluctuating periods are always a result of a variation in the number
of dry days. It is possible to detect ovulation using this method regardless of
whether the woman is regular or irregular, whether she has been pregnant
recently or is nursing and has no periods, or whether she is in the menopause.
If she finds the stringy secretions followed by the egg-white secretions, she
is ovulating.
Now this information can be used to pinpoint the time of fertility for those
who wish to abstain. They should avoid all contact between each other's gen-
itals because it is possible to become pregnant even if penetration does not
occur or even if withdrawal is practiced. The period of abstention would last
about a week. The other weeks are safe. Reliability of abstention with the
ovulation method is good. Only 1.5 pregnancies occur for 100 woman/years
compared to one pregnancy per 100 woman/years with the Pill. This informa-
tion can also be used to determine when a woman is fertile so some other form
of conception control can be used, such as condom, foam, or diaphragm. It
is not necessary to use some other from of conception control during the weeks
when the woman is not fertile. It may very well increase the reliability of other
forms of conception control because a woman will not be tempted not to use
contraception on days when she thinks she is not fertile but she really is, the
time when many accidental pregnancies occur. In the doctors' studies failure
of the ovulation method was traced to a failure to use the method properly,
i.e. to distrust its evidence and act contrary to it. The ovulation method can
he used with any form of conception control except the Pill because the Pill
changes the secretions and suppresses ovulation. A woman can learn to use it
while wearing an ITTD in preparation for having it removed so that she can
control her own fertility rather than depending on a doctor to be willing to
do it for her. Tt is excellent for women's self-help clinics to teach. It will not
make pharmaceutical houses rich and can be used in the absence of technology.
133
The two doctors recommend that women teach £ach other how to use it. It is
easy to use and will work for the poor. It will not mess up your body ecology.
The only disadvantage I can find to it is that you cannot get pregnant "acci-
dentally" anymore. You know when you are fertile even when you don't want
to know.
The ovulation method can be used for several other things. If you want to
get pregnant and are having trouble it can pinpoint ovulation for you. If you
want to try for a baby girl or boy it will tell you when to have sex and when
to abstain to increase the chances of having a child of the sex you want. The
method of sex selection described on the reverse side is 85% reliable.
134
LEO ALEXANDER
Medical Science
Under Dictatorship
From Child and Family, Vol. 10, No. 1, 1971
SCIENCE UNDER dictatorship be-
comes subordinated to the guiding
philosophy of the dictatorship. Irre-
spective of other ideologic trappings,
the guiding philosophic principle of
recent dictatorships, including that
of the Nazis, has been Hegelian in
that what has been considered "ra-
tional utility" and corresponding
doctrine and planning has replaced
moral, ethical and religious values.
Nazi propaganda was highly effec-
tive in perverting public opinion and
public conscience, in a remarkably
short time. In the medical profes-
sion this expressed itself in a rapid
decline in standards of professional
ethics. Medical science in Nazi Ger-
many collaborated with this Hege-
lian trend particularly in the follow-
ing enterprises: the mass extermi-
nation of the chronically sick in the
interest of saving "useless" ex-
penses to the community as a whole ;
the mass extermination of those
considered socially disturbing or
racially and ideologically unwanted;
the individual, inconspicuous exter-
mination of those considered dis-
loyal within the ruling group; and
the ruthless use of "human experi-
mental material" for medicomilitary
research.
This paper discusses the origins
of these activities, as well as their
consequences upon the body social,
and the motivation of those partici-
pating in them.
Preparatory propaganda
Even before the Nazis took open
charge in Germany, a propaganda
barrage was directed against the
traditional compassionate nineteenth
century attitudes toward the chron-
ically ill, and for the adoption of
a utilitarian, Hegelian point of
view. Sterilization and euthanasia
of persons with chronic mental ill-
nesses was discussed at a meeting of
Bavarian psychiatrists in 1931.1 By
1936 extermination of the physically
or socially unfit was so openly ac-
cepted that its practice was men-
tioned incidentally in an article pub-
lished in an official German medical
journal.2
Lay opinion was not neglected in
this campaign. Adults were propa-
gandized by motion pictures, one of
which, entitled "I Accuse," deals en-
tirely with euthanasia. This film de-
picts the life history of a woman
suffering from multiple sclerosis;
in it her husband, a doctor, finally
135
kills her to the accompaniment of
soft piano music rendered by a sym-
pathetic colleague in an adjoining
room. Acceptance of this ideology
was implanted even in the children.
A widely used high school mathe-
matics text, Mathematics in the
Service of National Political Educa-
tion,3 includes problems stated in
distorted terms of the cost of caring
for and rehabilitating the chronical-
ly sick and crippled. One of the
problems asked, for instance, how
many new housing units could be
built and how many marriage-allow-
ance loans could be given to newly
wedded couples for the amount of
money it cost the state to care for
"the crippled, the criminal and the
insane."
Euthanasia
The first direct order for euthana-
sia was issued by Hitler on Septem-
ber 1, 1939, and an organization was
set up to execute the program. Dr.
Karl Brandt headed the medical sec-
tion, and Phillip Bouhler the admin-
istrative section. All state institu-
tions were required to report on pa-
tients who had been ill five years
or more and who were unable to
work, by filling out questionnaires
giving name, race, marital status,
nationality, next of kin, whether
regularly visited and by whom, who
bore financial responsibility and so
forth. The decision regarding which
patients should be killed was made
entirely on the basis of this brief
DR. ALEXANDER is Assistant Clini-
cal Professor of Psychiatry, Tufts Uni-
versity Medical School, Boston.
information by expert consultants,
most of whom were professors of
psychiatry in the key universities.
These consultants never saw the
patients themselves. The thorough-
ness of their scrutiny can be ap-
praised by the work of one expert,
who between November 14 and De-
cember 1, 1940, evaluated 2109 ques-
tionnaires.
These questionnaires were col-
lected by a "Realm's Work Commit-
tee of Institutions for Cure and
Care."4 A parallel organization de-
voted exclusively to the killing of
children was known by the similarly
euphemistic name of "Realm's Com-
mittee for Scientific Approach to
Severe Illness Due to Heredity
and Constitution." The "Charitable
Transport Company for the Sick"
transported patients to the killing
centers, and the "Charitable Foun-
dation for Institutional Care" was in
charge of collecting the cost of the
killings from the relatives, without,
however, informing them what the
charges were for; in the death
certificates the cause of death was
falsified.
What these activities meant to the
population at large was well ex-
pressed by a few hardy souls who
dared to protest. A member of the
court of appeals at Frankfurt-am-
Main wrote in December, 1939 :
There is constant discussion of
the question of the destruction of
socially unfit life — in the places
where there are mental institu-
tions, in neighboring towns,
sometimes over a large area,
throughout the Rhineland, for
136
example. The people have come
to recognize the vehicles in which
the patients are taken from their
original institution to the inter-
mediate institution and from
there to the liquidation institu-
tion. I am told that when they
see these buses even the children
call out: 'They're taking some
more people to be gassed.' From
Limburg it is reported that every
day from one to three buses with
shades drawn pass through on the
way from Weilmunster to Hada-
mar, delivering inmates to the
liquidation institution there. Ac-
cording to the stories the arrivals
are immediately stripped to the
skin, dressed in paper shirts, and
forthwith taken to a gas chamber,
where they are liquidated with
hydrocyanic acid gas and an
added anesthetic. The bodies are
reported to be moved to a com-
bustion chamber by means of a
conveyor belt, six bodies to a
furnace. The resulting ashes are
then distributed into six urns
which are shipped to the families.
The heavy smoke from the crema-
tory building is said to be visible
over Hadamar every day. There
is talk, furthermore, that in some
cases heads and other portions of
the body are removed for anatom-
ical examination. The people
working at this liquidation job
in the institutions are said to be
assigned from other areas and
are shunned completely by the
populace. This personnel is de-
scribed as frequenting the bars
at night and drinking heavily.
Quite apart from these overt in-
cidents that exercise the imagina-
tion of the people, they are dis-
quieted by the question of wheth-
er old folk who have worked hard
all their lives and may merely
have come into their dotage are
also being liquidated. There is
talk that the homes for the aged
are to be cleaned out too. The
people are said to be waiting for
legislative regulation providing
some orderly method that will in-
sure especially that the aged
feebleminded are not included in
the program.
Here one sees what "euthanasia"
means in actual practice. According
to the records, 275,000 people were
put to death in these killing cen-
ters. Ghastly as this seems, it
should be realized that this program
was merely the entering wedge for
exterminations of far greater scope
in the political program for genocide
of conquered nations and the racially
unwanted. The methods used and
personnel trained in the killing cen-
ters for the chronically sick became
the nucleus of the much larger cen-
ters in the East, where the plan was
to kill all Jews and Poles and to cut
down the Russian population by
30,000,000.
The original program developed
by Nazi hotheads included also the
genocide of the English, with the
provision that the English males
were to be used as laborers in the
vacated territories in the East, there
to be worked to death, whereas the
English females were to be brought
into Germany to improve the quali-
ties of the German race. (This was
137
indeed a peculiar admission on the
part of the German eugenists.)
In Germany the exterminations
included the mentally defective, psy-
chotics (particularly schizophrenics),
epileptics and patients suffering
from infirmities of old age and from
various organic neurologic disorders
such as infantile paralysis, Parkin-
sonism, multiple sclerosis and brain
tumors. The technical arrangements,
methods and training of the killer
personnel were under the direction
of a committee of physicians and
other experts headed by Dr. Karl
Brandt. The mass killings were first
carried out with carbon monoxide
gas, but later cyanide gas ("cyclon
B") was found to be more effective.
The idea of camouflaging the gas
chambers as shower baths was de-
veloped by Brack, who testified be-
fore Judge Sebring that the patients
walked in calmly, deposited their
towels and stood with their little
pieces of soap under the shower out-
lets, waiting for the water to start
running. This statement was ample
rebuttal of his claim that onlv the
most severely regressed patients
among the mentally sick and only
the moribund ones among the physi-
cally sick were exterminated. In
truth, all those unable to work and
considered nonrehabilitable were
killed.
All but their squeal was utilized.
However, the program grew so big
that even scientists who hoped to
benefit from the treasure of material
supplied by this totalitarian method
wpre disannointed. A neuropathoTo-
gist. Dr. Hallervorden, who had ob-
tained 500 brains from the killing
centers for the insane, gave me a
vivid firsthand account.5 The Char-
itable Transport Company for the
Sick brought the brains in batches
of 150 to 250 at a time. Hallervor-
den stated:
There was wonderful material
among those brains, beautiful
mental defectives, malformations
and early infantile diseases. I
accepted those brains of course.
Where they came from and how
they came to me was really none
of my business.
In addition to the material he
wanted, all kinds of other cases were
mixed in, such as patients suffering
from various types of Parkinsonism,
simple depressions, involutional de-
pressions and brain tumors, and all
kinds of other illnesses, including
psychopathy that had been difficult
to handle:
These were selected from the
various wards of the institutions
according to an excessively simple
and quick method. Most institu-
tions did not have enough physi-
cians, and what physicians there
were were either too busy or did
not care, and they delegated the
selection to the nurses and attend-
ants. Whoever looked sick or was
otherwise a probVm was put on a
list and was transported to the
killing center. The worst thing1
about this business was that it
produced a certain brutalization
of the nursing personnel. They
got to simplv picking out those
whom they did not like, and the
138
doctors had so many patients that
they did not even know them, and
put their names on the list.
Of the patients thus killed, only the
brains were sent to Dr. Hallervor-
den ; they were killed in such large
numbers that autopsies of the bodies
were not feasible. That, in Dr. Hal-
lervorden's opinion, greatly reduced
the scientific value of the material.
The brains, however, were always
well fixed and suspended in formalin,
exactly according to his instructions.
He thinks that the cause of psychi-
atry was permanently injured by
these activities, and that psychia-
trists have lost the respect of the
German people forever. Dr. Haller-
vorden concluded: "Still, there were
interesting cases in this material."
In general only previously hos-
pitalized patients were exterminated
for reasons of illness. An exception
is a program carried out in a north-
western district of Poland, the
"Warthegau," where a health sur-
vey of the entire population was
made by an "S.S. X-Ray Battalion"
headed by Professor Hohlfelder,
radiologist of the University of
Frankfurt-am-Main. Persons found
to be infected with tuberculosis
were carted off to special extermina-
tion centers.
It is rather significant that the
German people were considered by
their Nazi leaders more ready to ac-
cept the exterminations of the sick
than those for political reasons. It
was for that reason that the first
exterminations of the latter group
were carried out under the guise of
sickness. So-called "psychiatric ex-
perts" were dispatched to survey the
inmates of camps with the specific
order to pick out members of racial
minorities and political offenders
from occupied territories and to dis-
patch them to killing centers with
specially made diagnoses such as
that of "inveterate German hater"
applied to a number of prisoners who
had been active in the Czech under-
ground.
Certain classes of patients with
mental diseases who were capable of
performing labor, particularly mem-
bers of the armed forces suffering
from psychopathy or neurosis, were
sent to concentration camps to be
worked to death, or to be reassigned
to punishment battalions and to be
exterminated in the process of re-
moval of mine fields.6
A large number of those marked
for death for political or racial rea-
sons were made available for "medi-
cal" experiments involving the use
of involuntary human subjects. From
1942 on, such experiments carried
out in concentration camps were
openly presented at medical meet-
ings. This program included "termi-
nal human experiments," a term in-
troduced by Dr. Rascher to denote
an experiment so designed that its
successful conclusion depended upon
the test person's being put to death.
The science of annihilation
A large part of this research was
devoted to the science of destroying
and preventing life, for which I have
proposed the term "ktenology," the
science of killing.7-9 In the course
of this ktenologic research, methods
139
of mass killing and mass steriliza-
tion were investigated and developed
for use against non-German peoples
or Germans who were considered
useless.
Sterilization methods were widely
investigated, but proved impractical
in experiments conducted in concen-
tration camps. A rapid method de-
veloped for sterilization of females,
which could be accomplished in the
course of a regular health examina-
tion, was the intrauterine injection
of various chemicals. Numerous
mixtures were tried, some with
iodopine and others containing bari-
um; another was most likely silver
nitrate with iodized oil, because the
result could be ascertained by X-ray
examination. The injections were
extremely painful, and a number of
women died in the course of the
experiments. Professor Karl Clau-
berg reported that he had developed
a method at the Auschwitz concen-
tration camp by which he could
sterilize 1000 women in one day.
Another method of sterilization,
or rather castration, was proposed
by Viktor Brack especially for con-
quered populations. His idea was
that X-ray machinery could be built
into desks at which the people would
have to sit, ostensibly to fill out a
questionnaire requiring five min-
utes ; they would be sterilized with-
out being aware of it. This method
failed because experiments carried
out on 100 male prisoners brought
out the fact that severe X-ray burns
were produced on all subjects. In
the course of this research, which
was carried out by Dr. Horst Schu-
man, the testicles of the victims
were removed for histologic exami-
nation two weeks later. I myself
examined four castrated survivors
of this ghastly experiment. Three
had extensive necrosis of the skin
near the genitalia, and the other an
extensive necrosis of the urethra.
Other experiments in sterilization
used an extract of the plant Caladi-
um seguinum, which had been shown
in animal studies by Madaus and
his co-workers10 X1 to cause selective
necrosis of the germinal cells of the
testicles as well as the ovary.
The development of methods for
rapid and inconspicuous individual
execution was the objective of an-
other large part of the ktenologic
research. These methods were to be
applied to members of the ruling
group, including the SS itself, who
were suspected of disloyalty. This,
of course, is an essential require-
ment in a dictatorship, in which
"cutthroat competition" becomes a
grim reality, and any hint of faint-
heartedness or lack of enthusiasm
for the methods of totalitarian rule
is considered a threat to the entire
group.
Poisons were the subject of many
of these experiments. A research
team at the Buchenwald concentra-
tion camp, consisting of Drs. Joa-
chim Mrugowsky, Erwin Ding-Schu-
ler and Waldemar Hoven, developed
the most widely used means of in-
dividual execution under the guise
of medical treatment — namely, the
intravenous injection of phenol or
gasoline. Several alkaloids were also
investigated, among them aconitine,
which was used by Dr. Hoven to kill
several imprisoned former fellow SS
140
men who were potential witnesses
against the camp commander, Koch,
then under investigation by the
SS. At the Dachau concentration
camp Dr. Rascher developed the
standard cyanide capsules, which
could be easily bitten through, either
deliberately or accidentally, if mixed
with certain foods, and which, ironi-
cally enough, later became the means
with which Himmler and Goering
killed themselves. In connection with
these poison experiments there is an
interesting incident of characteristic
sociologic significance. When Dr.
Hoven was under trial by the SS
the investigating SS judge, Dr. Mor-
gen, proved Hoven's guilt by feeding
the poison found in Dr. Hoven's
possession to a number of Russian
prisoners of war; these men died
with the same symptoms as the SS
men murdered by Dr. Hoven. This
worthy judge was rather proud of
this efficient method of proving Dr.
Hoven's guilt and appeared entirely
unaware of the fact that in the
process he had committed murder
himself.
Poisons, however, proved too ob-
vious or detectable to be used for the
elimination of high-ranking Nazi
party personnel who had come into
disfavor, or of prominent prisoners
whose deaths should appear to stem
from natural causes. Phenol or gaso-
line, for instance, left a telltale odor
with the corpse. For this reason a
number of more subtle methods were
devised. One of these was artificial
production of septicemia. An intra-
muscular injection of 1 cc. of pus,
containing numerous chains of
;>tococci, was the first step. The
site of injection was usually the in-
side of the thigh, close to the adduc-
tor canal. When an abscess formed
it was tapped, and 3 cc. of the
creamy pus removed was injected
intravenously into the patient's op-
posite arm. If the patient then died
from septicemia, the autopsy proved
that death was caused by the same
organism that had caused the ab-
scess. These experiments were car-
ried out in many concentration
camps. At the Dachau camp the
subjects were almost exclusively
Polish Catholic priests. However,
since this method did not always
cause death, sometimes resulting
merely in a local abscess, it was con-
sidered inefficient, and research was
continued with other means but
along the same lines.
The final triumph on the part of
ktenologic research aimed at finding
a method of inconspicuous execution
that would produce autopsy findings
indicative of death from natural
causes was the development of re-
peated intravenous injections of
suspensions of live tubercle bacilli,
which brought on acute miliary tu-
berculosis within a few weeks. This
method was produced by Professor
Dr. Heissmeyer, who was one of Dr
Gebhardt's associates at the SS hos-
pital of Hohenlychen. As a means
of further camouflage, so that the
SS at large would not suspect the
purpose of these experiments, the
preliminary tests for the efficacy of
this method were performed exclu-
sively on children imprisoned in the
Neuengamme concentration camp.
For use in "medical" executions
of prisoners and of members of the
141
SS and other branches of the Ger-
man armed forces the use of simple
lethal injections, particularly phenol
injections, remained the instrument
of choice. Whatever methods he
used, the physician gradually became
the unofficial executioner, for the
sake of convenience, informality and
relative secrecy. Even on German
submarines it was the physician's
duty to execute the troublemakers
among the crew by lethal injections.
Medical science has for some time
been an instrument of military pow-
er in that it preserved the health
and fighting efficiency of troops.
This essentially defensive purpose is
not inconsistent with the ethical
principles of medicine. In World
War I the German empire had en-
listed medical science as an instru-
ment of aggressive military power
by putting it to use in the develop-
ment of gas warfare. It was left to
the Nazi dictatorship to make medi-
cal science into an instrument of
political power — a formidable, essen-
tial tool in the complete and effective
manipulation of totalitarian control.
This should be a warning to all civil-
ized nations, and particularly to in-
dividuals who are blinded by the
"efficiency" of a totalitarian rule,
under whatever name.
This entire body of research as
reported so far served the master
crime to which the Nazi dictatorship
was committed — namely, the geno-
cide of non-German peoples and the
elimination by killing, in groups or
singly, of Germans who were con-
sidered useless or disloyal. In effect-
ing the two parts of this program,
Himmler demanded and received the
cooperation of physicians and of
German medical science. The result
was a significant advance in the
science of killing, or ktenology.
Medicomilitary research
Another chapter in Nazi scientific
research was that aimed to aid the
military forces. Many of these ideas
originated with Himmler, who fan-
cied himself a scientist.
When Himmler learned that the
cause of death of most SS men on
the battlefield was hemorrhage, he
instructed Dr. Sigmund Rascher to
search for a blood coagulant that
might be given before the men went
into action. Rascher tested this
coagulant when it was developed
by clocking the number of drops
emanating from freshly cut amputa-
tion stumps of living and conscious
prisoners at the crematorium of
Dachau concentration camp and by
shooting Russian prisoners of war
through the spleen.
Live dissections were a feature of
another experimental study designed
to show the effects of explosive de-
compression.12-14 A mobile decom-
pression chamber was used. It was
found that when subjects were made
to descend from altitudes of 40,000
to 60,000 feet without oxygen, se-
vere symptoms of cerebral dysfunc-
tion occurred — at first convulsions,
then unconsciousness in which the
body was hanging limp and later,
after wakening, temporary blind-
ness, paralysis or severe confu-
sional twilight states. Rascher, who
wanted to find out whether these
symptoms were due to anoxic
changes or to other causes, did what
142
appeared to him the most simple
thing: he placed the subjects of the
experiment under water and dis-
sected them while the heart was still
beating, demonstrating air embolism
in the blood vessels of the heart,
liver, chest wall and brain.
Another part of Dr. Rascher's re-
search, carried out in collaboration
with Holzloehner and Finke, con-
cerned shock from exposure to cold.15
It was known that military person-
nel generally did not survive immer-
sion in the North Sea for more than
sixty to a hundred minutes. Rascher
therefore attempted to duplicate
these conditions at Dachau concen-
tration camp and used about 300
prisoners in experiments on shock
from exposure to cold; of these 80
or 90 were killed. (The figures do
not include persons killed during
mass experiments on exposure to
cold outdoors.) In one report on
this work Rascher asked permission
to shift these experiments from
Dachau to Auschwitz, a larger camp
where they might cause less disturb-
ance because the subjects shrieked
from pain when their extremities
froze white. The results, like so
many of those obtained in the Nazi
research program, are not depend-
able. In his report Rascher stated
that it took from fifty-three to a
hundred minutes to kill a human
being by immersion in ice water — a
time closely in agreement with the
known survival period in the North
Sea. Inspection of his own experi-
mental records and statements made
to me by his close associates showed
that it actually took from eighty
minutes to five or six hours to kill
an undressed person in such a man-
ner, whereas a man in full aviator's
dress took six or seven hours to kill.
Obviously, Rascher dressed up his
findings to forestall criticism, al-
though any scientific man should
have known that during actual ex-
posure many other factors, includ-
ing greater convection of heat due to
the motion of water, would affect the
time of survival.
Another series of experiments
gave results that might have been
an important medical contribution if
an important lead had not been
ignored. The efficacy of various vac-
cines and drugs against typhus was
tested at the Buchenwald and Natz-
weiler concentration camps. Pre-
vaccinated persons and non-vacci-
nated controls were injected with
live typhus rickettsias, and the death
rates of the two series compared.
After a certain number of passages,
the Matelska strain of typhus ric-
kettsia proved to become avirulent
for man. Instead of seizing upon
this as a possibility to develop a live
vaccine, the experimenters, includ-
ing the chief consultant, Professor
Gerhard Rose, who should have
known better, were merely annoyed
at the fact that the controls did not
die either, discarded this strain and
continued testing their relatively in-
effective dead vaccines against a new
virulent strain. This incident shows
that the basic unconscious motiva-
tion and attitude has a great influ-
ence in determining the scientist's
awareness of the phenomena that
pass through his vision.
Sometimes human subjects were
used for tests that were totally un-
143
necessary, or whose results could
have been predicted by simple chemi-
cal experiments. For example, 90
gypsies were given unaltered sea
water and sea water whose taste
was camouflaged as their sole source
of fluid, apparently to test the well-
known fact that such hypertonic
saline solutions given as the only
source of supply of fluid will cause
severe physical disturbance or death
within six to twelve days. These
persons were subjected to the tor-
tures of the damned, with death re-
sulting in at least two cases.
Heteroplastic transplantation ex-
periments were carried out by Pro-
fessor Dr. Karl Gebhardt at Himm-
ler's suggestion. Whole limbs —
shoulder, arm or leg — were ampu-
tated from live prisoners at Ravens-
brueck concentration camp, wrapped
in sterile moist dressings and sent
by automobile to the SS hospital at
Hohenlychen, where Professor Geb-
hardt busied himself with a futile
attempt at heteroplastic transplanta-
tion. In the meantime the prisoners
deprived of a limb were usually
killed by lethal injection.
One would not be dealing with
German science if one did not run
into manifestations of the collector's
spirit. By February, 1942, it was
assumed in German scientific circles
that the Jewish race was about to
be completely exterminated, and
alarm was expressed over the fact
that only very few specimens of
skulls and skeletons of Jews were at
the disposal of science. It was there-
fore proposed that a collection of
150 bodv casts and skeletons of Jews
be preserved for perusal by future
students of anthropology. Dr. Au-
gust Hirt, professor of anatomy at
the University of Strassburg, de-
clared himself interested in estab-
lishing such a collection at his ana-
tomic institute. He suggested that
captured Jewish officers of the Rus-
sian armed forces be included, as
well as females from Auschwitz con-
centration camp; that they be
brought alive to Natzweiler concen-
tration camp near Strassburg; and
that after "their subsequently in-
duced death — care should be taken
that the heads not be damaged
[sic]" the bodies be turned over to
him at the anatomic institute of the
University of Strassburg. This was
done. The entire collection of bodies
and the correspondence pertaining
to it fell into the hands of the
United States Army.
One of the most revolting experi-
ments was the testing of sulfona-
mides against gas gangrene by Pro-
fessor Gebhardt and his collabora-
tors, for which young women cap-
tured from the Polish Resistance
Movement served as subjects. Ne-
crosis was produced in a muscle of
the leg by ligation and the wound
was infected with various types of
gas-gangrene bacilli ; frequently,
dirt, pieces of wood and glass splint-
ers were added to the wound. Some
of these victims died, and others
sustained severe mutilating deformi-
ties of the leg.
Motivation
An important feature of the ex-
periments performed in concentra-
tion camps is the fact that they not
only represented a ruthless and cal-
144
lous pursuit of legitimate scientific
goals but also were motivated by
rather sinister practical ulterior
political and personal purposes, aris-
ing out of the requirements and
problems of the administration of
totalitarian rule.
Why did men like professor Geb-
hardt lend themselves to such ex-
periments? The reasons are fairly
simple and practical, no surprise to
anyone familiar with the evidence
of fear, hostility, suspicion, rivalry
and intrigue, the fratricidal struggle
euphemistically termed the "self-
selection of leaders," that went on
within the ranks of the ruling Nazi
party and the SS. The answer was
fairly simple and logical. Dr. Geb-
hardt performed these experiments
to clear himself of the suspicion that
he had been contributing to the
death of SS General Reinhard ("The
Hangman") Heydrich, either neg-
ligently or deliberately, by failing to
treat his wound infection with sul-
fonamides. After Heydrich died
from gas gangrene, Himmler him-
self told Dr. Gebhardt that the only
way in which he could prove that
Heydrich's death was "fate deter-
mined" was by carrying out a
"large-scale experiment" in prison-
ers, which would prove or disprove
that people died from gas gangrene
irrespective of whether they were
treated with sulfonamides or not.
Dr. Sigmund Rascher did not be-
come the notorious vivisectionist of
Dachau concentration camp and the
willing tool of Himmler's research
interests until he had been forbid-
den to use the facilities of the Path-
ological Institute of the Universitv
of Munich because he was suspected
of having Communist sympathies.
Then he was ready to go all out and
to do anything merely to regain ac-
ceptance by the Nazi party and the
SS.
These cases illustrated a method
consciously and methodically used in
the SS, an age-old method used by
criminal gangs everywhere : that of
making suspects of disloyalty clear
themselves by participation in a
crime that would definitely and ir-
revocably tie them to the organiza-
tion. In the SS this process of rein-
forcement of group cohesion was
called "Blutkitt" (blood-cement), a
term that Hitler himself is said to
have obtained from a book on Gen-
ghis Khan in which this technic
was emphasized.
The important lesson here is that
this motivation, with which one is
familiar in ordinary crimes, applies
also to war crimes and to ideologi-
cally conditioned crimes against hu-
manity— namely, that fear and cow-
ardice, especially fear of punishment
or of ostracism by the group, are
often more important motives than
simple ferocity or aggressiveness.
The early change in
medical attitudes
Whatever proportions these crimes
finally assumed, it became evident to
all who investigated them that they
had started from small beginnings.
The beginnings at first were merely
a subtle shift in emphasis in the
basic attitude of the physicians. It
started with the acceptance of the
attitude, basic in the euthanasia
145
movement, that there is such a thing
as life not worthy to be lived. This
attitude in its early stages con-
cerned itself merely with the severe-
ly and chronically sick. Gradually
the sphere of those to be included
in this category was enlarged to
encompass the socially unproduc-
tive, the ideologically unwanted, the
racially unwanted and finally all
non-Germans. But it is important
to realize that the infinitely small
wedged-in lever from which this en-
tire trend of mind received its im-
petus was the attitude toward the
nonrehabilitable sick.
It is, therefore, this subtle shift
in emphasis of the physicians' atti-
tude that one must thoroughly in-
vestigate. It is a recent significant
trend in medicine, including psychia-
try, to regard prevention as more im-
portant than cure. Observation and
recognition of early signs and symp-
toms have become the basis for pre-
vention of further advance of dis-
ease.8
In looking for these early signs
one may well retrace the early steps
of propaganda on the part of the
Nazis in Germany as well as in the
countries that they overran and in
which they attempted to gain sup-
porters by means of indoctrination,
seduction and propaganda.
The example of successful
resistance by the
physicians of the Netherlands
There is no doubt that in Ger-
many itself the first and most effec-
tive step of propaganda within the
medical profession was the propa-
ganda barrage against the useless,
incurably sick described above. Sim-
ilar, even more subtle efforts were
made in some of the occupied coun-
tries. It is to the everlasting honor
of the medical profession of Holland
that they recognized the earliest and
most subtle phases of this attempt
and rejected it. When Seiss-Inquart,
Reich Commissar for the Occupied
Netherlands Territories, wanted to
draw the Dutch physicians into the
orbit of the activities of the German
medical profession, he did not tell
them "You must send your chronic
patients to death factories" or "You
must give lethal injections at Gov-
ernment request in your offices," but
he couched his order in most careful
and superficially acceptable terms.
One of the paragraphs in the order
of the Reich Commissar of the Neth-
erlands Territories concerning the
Netherlands doctors of 19 December
1941 reads as follows:
It is the duty of the doctor,
through advice and effort, con-
scientiously and to his best abil-
ity, to assist as helper the person
entrusted to his care in the main-
tenance, improvement, and re-es-
tablishment of his vitality, physi-
cal efficiency and health. The ac-
complishment of this duty is a
public task."16
The physicians of Holland rejected
this order unanimously because they
saw what it actually meant — namely,
the concentration of their efforts on
mere rehabilitation of the sick for
useful labor, and abolition of medi-
cal secrecy. Although on the sur-
face the new order appeared not too
146
grossly unacceptable, the Dutch phy-
sicians decided that it is the first,
although slight, step away from
principle that is the most important
one. The Dutch physicians declared
that they would not obey this order.
When Seiss-Inquart threatened them
with revocation of their licenses,
they returned their licenses, re-
moved their shingles and, while see-
ing their own patients secretly, no
longer wrote death or birth certifi-
cates. Seiss-Inquart retraced his
steps and tried to cajole them — still
to no effect. Then he arrested 100
Dutch physicians and sent them to
concentration camps. The medical
profession remained adamant and
quietly took care of their widows
and orphans, but would not give in.
Thus it came about that not a single
euthanasia or non-therapeutic steril-
ization was recommended or partici-
pated in by any Dutch physician.
They had the foresight to resist be-
fore the first step was taken, and
they acted unanimously and won out
in the end. It is obvious that if the
medical profession of a small nation
under the conqueror's heel could
resist so effectively the German med-
ical profession could likewise have
resisted had they not taken the fatal
first step. It is the first seemingly
innocent step away from principle
that frequently decides a career of
crime. Corrosion begins in micro-
scopic proportions.
The situation in the
United States
The question that this fact
prompts is whether there are any
danger signs that American physi-
cians have also been infected with
Hegelian, cold-blooded, utilitarian
philosophy and whether early traces
of it can be detected in their medi-
cal thinking that may make them
vulnerable to departures of the type
that occurred in Germany. Basic
attitudes must be examined dispas-
sionately. The original concept of
medicine and nursing was not based
on any rational or feasible likelihood
that they could actually cure and
restore but rather on an essentially
maternal or religious idea. The Good
Samaritan had no thought of nor
did he actually care whether he
could restore working capacity. He
was merely motivated by the com-
passion in alleviating suffering. Ber-
nal17 states that prior to the advent
of scientific medicine, the physician's
main function was to give hope to
the patient and to relieve his rela-
tives of responsibility. Gradually, in
all civilized countries, medicine has
moved away from this position,
strangely enough in direct propor-
tion to man's actual ability to per-
form feats that would have been
plain miracles in days of old. How-
ever, with this increased efficiency
based on scientific development went
a subtle change in attitude. Physi-
cians have become dangerously close
to being mere technicians of reha-
bilitation. This essentially Hegelian
rational attitude has led them to
make certain distinctions in the
handling- of acute and chronic dis-
eases. The patient with the latter
carries an obvious stigma as the
one less likely to be fully rehabili-
tate for social usefulness. In an
147
increasingly utilitarian society these
patients are being looked down upon
with increasing definiteness as un-
wanted ballast. A certain amount
of rather open contempt for the peo-
ple who cannot be rehabilitated with
present knowledge has developed.
This is probably due to a good deal
of unconscious hostility, because
these people for whom there seem to
to be no effective remedies have be-
come a threat to newly acquired de-
lusions of omnipotence.
Hospitals like to limit themselves
to the care of patients who can be
fully rehabilitated, and the patient
whose full rehabilitation is unlikely
finds himself, at least in the best
and most advanced centers of heal-
ing, as a second-class patient faced
with a reluctance on the part of
both the visiting and the house staff
to suggest and apply therapeutic
procedures that are not likely to
bring about immediately striking re-
sults in terms of recovery. I wish
to emphasize that this point of view
did not arise primarily within the
medical profession which has always
been outstanding in a highly com-
petitive economic society for giving
freely and unstintingly of its time
and efforts, but was imposed by the
shortage of funds available, both
private and public. From the atti-
tude of easing patients with chronic
diseases away from the doors of the
best types of treatment facilities
available to the actual dispatching
of such patients to killing centers is
a long but nevertheless logical step.
Resources for the so-called incurable
patient have recently become prac-
tically unavailable.
There has never in history been a
shortage of money for the develop-
ment and manufacture of weapons
of war ; there is and should be none
now. The disproportion of monetary
support for war and that available
for healing and care is an anachron-
ism in an era that has been de-
scribed as the "enlightened age of
the common man" by some observ-
ers. The comparable cost of jet
planes and hospital beds is too ob-
vious for any excuse to be found
for a shortage of the latter. I trust
that these remarks will not be mis-
understood. I believe that armament,
including jet planes, is vital for the
security of the republic, but ade-
quate maintenance of standards of
health and alleviation of suffering
are equally vital, both from a prac-
tical point of view and from that of
morale. All who took part in induc-
tion-board examinations during the
war realize that the maintenance
and development of national health
is of as vital importance as the
maintenance and development of
armament.
The trend of development in the
facilities available for the chronical-
ly ill outlined above will not neces-
sarily be altered by public or state
medicine. With provision of public
funds in any setting of public ac-
tivity the question is bound to come
up, "Is it worth while to spend a
certain amount of effort to restore a
certain type of patient?" This ra-
tionalistic point of view has insidi-
ouslv crept into the motivation of
medical effort, supplanting the old
Hippocratic point of view. In emer-
gency situations, military or other-
148
wise, such grading of effort may be
pardonable. But doctors must be-
ware lest such attitudes creep into
the civilian public administration of
medicine entirely outside emergency
situations, because once such con-
siderations are at all admitted, the
more often and the more definitely
the question is going to be asked,
"Is it worth while to do this or that
for this type of patient?" Evidence
of the existence of such an attitude
stared at me from a report on the
activities of a leading public hospital
unit, which stated rather proudly
that certain treatments were given
only when they appeared promising :
Our facilities are such that a
case load of 20 patients is regu-
larly carried ... in selecting cases
for treatment careful considera-
tion is given to the prognostic
criteria, and in no instance have
we instituted treatment merely to
satisfy relatives or our own con-
sciences.
If only those whose treatment is
worthwhile in terms of prognosis
are to be treated, what about the
other ones? The doubtful patients
are the ones whose recovery appears
unlikely, but frequently if treated
ally, they surprise the best
prognoeticators. And what shall be
during that long time lag after
the disease has been called incurable
and the tinir of (hath and autopsy?
thai period during which it is
most difficult to find hospitals and
other therapeutic organizations for
the wdfarc ;md alleviation of suffer-
ing of the patient.
Under all forms of dictatorship
the dictating bodies or individuals
claim that all that is done is being
done for the best of the people as a
whole, and that for that reason they
look at health merely in terms of
utility, efficiency and productivity.
It is natural in such a setting that
eventually Hegel's principle that
"what is useful is good" wins out
completely. The killing center is the
reductio ad absurdum of all health
planning based only on rational prin-
ciples and economy and not on hu-
mane compassion and divine law. To
be sure, American physicians are
still far from the point of thinking
of killing centers, but they have ar-
rived at a danger point in thinking,
at which likelihood of full rehabili-
tation is considered a factor that
should determine the amount of
time, effort and cost to be devoted to
a particular type of patient on the
part of the social body upon which
this decision rests. At this point
Americans should remember that the
enormity of a euthanasia move-
ment is present in their own midst.
To the psychiatrist it is obvious that
this represents the eruption of un-
conscious aggression on the part of
certain administrators alluded to
above, as well as on the part of rela-
tives who have been understandably
frustrated by the tragedy of illness
in its close interaction unon their
own lives. The hostility of a father
erupting against his feebleminded
son is understandable and should
be considered from the psvchiatric
point of view, but it certainly should
not influence social thinking. The
development of effective analgesics
149
and pain-relieving operations has
taken even the last rationalization
laway from the supporters of eutha-
masia.
The case, therefore, that I should
like to make is that American medi-
cine must realize where it stands in
its fundamental premises. There can
be no doubt that in a subtle way the
Hegelian premise of "what is useful
is right" has infected society, includ-
ing the medical portion. Physi-
cians must return to the older
premises, which were the emotional
foundation and driving force of an
amazingly successful quest to in-
crease powers of healing and which
are bound to carry them still farther
if they are not held down to earth
by the pernicious attitudes of an
overdone practical realism.
What occurred in Germany may
have been the inexorable historic
progression that the Greek histor-
ians have described as the law of the
fall of civilizations and that Toyn-
bee18 has convincingly confirmed —
namely, that there is a logical se-
quence from Koros to Hybris to Ate,
which means from surfeit to dis-
dainful arrogance to disaster, the
surfeit being increased scientific and
practical accomplishments, which,
however, brought about an inclina-
tion to throw away the old motiva-
tions and values by disdainful arro-
gant pride in practical efficiency.
Moral and physical disaster is the
inevitable consequence.
Fortunately, there are develop-
ments in this democratic society
that counteract these trends. Nota-
ble among them are the societies
of patients afflicted with various
chronic diseases that have sprung
up and are dedicating themselves to
guidance and information for their
fellow sufferers and for the support
and stimulation of medical research.
Among the earliest was the mental
hygiene movement, founded by a
former patient with mental disease.
Then came the National Founda-
tion for Infantile Paralysis, the
tuberculosis societies, the Ameri-
can Epilepsy League, the National
Association to Control Epilepsy,
the American Cancer Society, The
American Heart Association, "Alco-
holics Anonymous" and, most recent-
ly the National Multiple Sclerosis
Society. All these societies, which
are coordinated with special medi-
cal societies and which received in-
spiration and guidance from out-
standing physicians, are having an
extremely wholesome effect in in-
troducing fresh motivating power
into the ivory towers of academic
medicine. It is indeed interesting
and an assertion of democratic vital-
ity that these societies are activated
by and for people suffering from
illnesses who, under certain dictator-
ships, would have been slated for
euthanasia.
It is thus that these new societies
have taken over one of the ancient
functions of medicine — namely, to
give hope to the patient and to re-
lieve his relatives. These societies
need the wholehearted support of the
medical profession. Unfortunately,
this support is by no means yet
unanimous. A distinguished physi-
cian, investigator and teacher at an
outstanding university recently told
me that he was opposed to these
150
Ial societies and clinics because
they had nothing to offer to the pa-
It would be better to wait
until someone made a discovery acci-
dentally and then start clinics. It is
my opinion, however, that one can-
not wait for that. The stimulus sup-
plied by these societies is necessary
to give stimulus both to public de-
mand and to academic medicine,
which at times grows stale and un-
productive even in its most outstand-
ing centers, and whose existence did
nothing to prevent the executioner
from having logic on his side in
Germany.
Another element of this free dem-
ocratic society and enterprise that
has been a stimulus to new develop-
ments is the pharmaceutical indus-
try, which, with great vision, has in-
vested considerable effort in the
sponsorship of new research.
Dictatorships can be indeed de-
fined as systems in which there is
a prevalence of thinking in destruc-
tive, rather than in ameliorative
terms in dealing with social prob-
lems. The ease with which destruc-
tion of life is advocated for those
considered either socially useless or
illy disturbing instead of educa-
tional or ameliorative measures may
be the first danger sign of loss of
creative liberty in thinking, which is
the hallmark of democratic society.
All deetructivenes8 ultimately leads
f -destruction ; the fate of the
SS and of Nazi Germany is an elo-
quent example. The destructive prin-
ciple, once unleashed, is bound to
engulf the whole personality and to
•• all its relationships. Destruc-
- and destructive concepts
arising therefrom cannot remain
limited or focused upon one subject
or several subjects alone, but must
inevitably spread and be directed
against one's entire surrounding
world, including one's own group
and ultimately the self. The amelio-
rative point of view maintained in
relation to all others is the only
real means of self-preservation.
A most important need in this
country is for the development of
active and alert hospital centers for
the treatment of chronic illnesses.
They must have active staffs similar
to those of the hospitals for acute
illnesses, and these hospitals must
be fundamentally different from the
custodial repositories for derelicts,
of which there are too many in
existence today. Only thus can one
give the right answer to divine
scrutiny : Yes, we are our brothers'
keepers. O
REFERENCES
1 Bumke, O. Discussion of Faltlhauser, K.
Zur Frage der Sterilisierung geistig Abnormer.
AUg. Ztachr. f. Psychiat., 96:372, 1932.
2 Dierichs, R. Beitrag zur psychischen An-
staltsbehandlung 'i uberkuloser. Zischr. f.
Tuberk., 74:21-8, 1936.
3 Dorner, A. Mathematik in Dienste der
Nationalpolitischen Erziehung: Ein Handbuch
fur Lehrer, herausgegeben in Auftrage des
Reich8verbande8 Deutscher mathematischer Ge-
sellgchaften und Vereine. Moritz Diesterweg,
Frankfurt, 1935, pp. 1-118. Second edition
(revised). 1936, pp. 1-118, Third edition (re-
vised) .
4 Alexander, L. Public Mental Health Prac-
tices in Germany, Sterilization and Execution
of Patients Suffering from Nervous or Mental
Disease. Combined Intelligence Objectives Sub-
committee, Item No. 24, File No. XXVIII-50,
Aug. 1946, pp. 1-173.
5 — • Neuropathology and Neurophysiol-
ogy, Including Electro-Encephalography in
War-time Germany. Combined Intelligence Ob-
jectives Subcommittee, Item No. 24, File No.
XXVII-1, July 1945, pp. 1-65.
* ~~r • German Military Neuropsychiatry
and Neurosurgery. Combined Intelligence Ob-
jectives Subcommittee, Item No. 24, File No
XXVIII-49, Aug. 1945, pp. 1-138.
_ 7 ~ :• Sociopsychologic Structure of SS .
Psychiatric Report of Nurnberg Trials for
^?r,.Cr}me£- Arch" Neurol. & Psychiat., 69
bii-ii, 1948.
151
8 . War Crimes : Their Social-Psycho-
logical Aspects. Amer. J. Psychiat., 105:170-7,
1948.
9 . War Crimes and Their Motivation :
Socio-Psychological Structure of SS and Crim-
inalization of Society. J. Crim. Law & Crim-
inal., 39:298-326, 1948.
10 Madaus, G., and Koch, F. Tierexperimen-
telle Studien zur Frage der Medikamentosen
Sterilisierung (durch Caladium seguinum)
(Dieffenbachia seguina) . Ztschr. f. d. ges.
exper. Med., 109:68-87, 1941.
li Madaus, G. Zauberpftanzen im Lichte ex-
perimenteller Forschung, Das Schweigrohr —
Caladium seguinum. Umsehau, 24:600-2, 1941.
12 Alexander, L. Miscellaneous Aviation Med-
ical Matters. Combined Intelligence Objectives
Subcommittee, Item No. 24, File No. XXIX-21,
Aug. 1945, pp. 1-163.
13 Document 1971 a PS.
14 Document NO 220.
15 Alexander, L. Treatment of Shock from
Prolonged Exposure to Cold, Especially in
Water. Combined Intelligence Objectives Sub-
committee, Item No. 24, File No. XXVI-37.
July 1945, pp. 1-228.
16 Seiss-Inquart. Order of the Reich Com-
missar for the Occupied Netherlands Terri-
tories Concerning the Netherlands Doctors.
(Gazette containing the orders for the Oc-
cupied Netherlands Territories), Dec. 1941,
pp. 1004-26.
17 Bernal, J. D. The Social Function of
Science. George Routledge & Sons, London,
1946, 482 pp. Sixth edition.
18 Toynbee, A. J. A Study of History,
Abridgement of Vol. I-VI. By D. C. Somervell.
Oxford Univ. Press, New York and London,
1947, 617 pp.
Reprinted from The New England Journal of Medicine, 2H :S9-b7, 19J,9.
© 19b9 by the Massachusetts Medical Society.
Editor's Comment:
His stark experience as an official
American medical expert at the Nur-
emberg Trials of German physician-
executioners of Nazi medical atrocities
clearly had a profound effect on A.
The experience impelled him to record
the insidious progression of corrosive
medical thinking which led to the de-
gradation of the German medical pro-
fession and to warn his American col-
leagues with startling prophetic insight
and foresight that what happened there
could happen here.
It must be remembered that in the
decades preceding World War II, Ger-
man medicine was preeminent. Ger-
many was the leading world center for
post-graduate medical studies. As the
United States is to the world of medi-
cine today, Germany was then. To see
this great giant topple not only shocked
the medical world but raised for the
reflective the crucial question of how
the giant's downfall came about.
A's answer has great simplicity — a
simplicity that gets to the heart of the
matter: that the moment German
medicine forgot that cure etymological-
ly derives from care and deviated from
medicine's prime end of healing, it be-
gan its inexorable road to doom.
These are his words:
Whatever proportions these crimes
finally assumed, it became evident
to all who investigated them that
they had started from small begin-
nings. The beginnings at first were
merely a subtle shift in emphasis in
the basic attitude of physicians. It
started with the acceptance of the
attitude, basic in the euthanasia
movement, that there is such a thing
as life not worthy to be lived.
He adds,
This attitude in its early stages
concerned itself merely with the
severely and chronically sick. Grad-
ually the sphere of those to be in-
cluded in this category was enlarged
to encompass the socially unproduc-
tive, the ideologically unwanted, the
racially unwanted and finally all
non-Germans. But it is important
to realize that the infinitely small
wedged-in lever from which this en-
152
tire trend of mind received its im-
petus was the attitude toward the
nonrehabilitable sick.
Intellectuals today, of course, bristle
BeLf-righteoosly at the "camel's nose in
the tent" thesis. They insist that firm
intellects have no difficulty drawing a
line when small beginnings exceed their
la. In believing this they miss the
stark lesson of the ripening of the Ger-
man medical profession for Nazi ex-
ploitation. They also forget Judge Car-
famous reminder of "the ten-
dency of a principle to expand itself
to the limit of its logic." (Nature of
idicicU Process. P. 51).
The major historical questions we
must confront are, where were the firm
intellects when German medicine be-
gan its calamitous descent into bar-
barism? What lassitude enveloped the
body of German medicine when the
German euthanasia movement took
hold in the nineteen twenties, ten years
before Hitler's ascendency? Despite
the clear-cut warning from the history
of the Third Reich and the German
medical profession, are we in the
United States retracing their demonic
retrogression wherein killing super-
sedes healing?
German medicine, at least, had the
excuse of not knowing the magnitude
of what was to befall them. Are we
incapable of learning from history's
explicit lesson? Can we not see that
what happened there is now happening
here in an inexorable sequence?
A. made clear when the above paper
was written, that
The killing center is the reductio
ad absurdum of all health planning
based only on rational principles
and economy and not on human com-
passion and divine law. To be sure,
American physicians are still far
from the point of thinking of killing
centers, but they have arrived at a
danger point in thinking, at which
likelihood of full rehabilitation is
considered a factor that should de-
termine the amount of time, effort
and cost to be devoted to a particu-
lar type of patient on the part of
the social body upon which this de-
cision rests. At this point Ameri-
cans should remember that the
enormity of a euthanasia movement
is present in their midst.
Since 1949, when A. wrote the above,
we have in fact progressed to killing
centers. Hundreds of thousands of un-
born children are being killed yearly
in abortariums. The movement for
euthanasia of the already born is gal-
loping along at great speed. Killing
has become the major prevalent medi-
cal procedure of the medical profession
A's paper should be read by every-
one who can read. Our debt to him is
immense. His prescient grasp of the
need to rescue the German lesson for
posterity is literally clairvoyant. That
he has become a leading spokesman
against abortion and euthanasia should
become an exemplar for all. HR
153
PAUL C. WEICK
DON J. YOUNG
The Ohio Decision
on Abortion
From Child and Family, Vol 10, Mo. 1, 1971
this is another in a series of
cases which have been and are being
filed in various courts throughout
the United States attacking the con-
stitutionality of state statutes for-
bidding abortions. This particular
action was brought under Title 28
U.S.C. §§1331-1343, Title 28 U.S.C.
§§2201 and 2202, Title 28 U.S.C.
§§2281 and 2284, and Title 42 U.S.C.
§1983. The plaintiffs seek a declara-
tory judgment that Ohio's abortion
statute, Section 2901.16 Ohio Rev.
Code (1), is unconstitutional under
the First, Fourth, Fifth, Eighth,
Ninth, and Fourteenth Amendments
to the Constitution of the United
States. They also seek injunctive
relief against the enforcement of
the statute. Hence a three judge
court was convened to hear and de-
termine the matter.
The plaintiffs claim that each of
them represents a class of persons
who are affected by the Ohio statute
complained of. One plaintiff is a
physician specializing in obstetrics
and gynecology; one is a psychia-
trist; one is a social worker ; one is
a minister of religion ; and the final
one is a young woman, married but
separated from her husband, the
mother of one child born in wedlock,
and at the time of commencement
of the action early in September,
1970, eight to ten weeks pregnant
with another child conceived in wed-
lock.
The defendants named in the
amended complaint are the Governor
and Attorney General of the State
of Ohio, the Prosecuting Attorney
of Lucas County, Ohio, wherein this
Division of the District Court sits,
and the Chief of Police of the City
of Toledo, the county seat of Lucas
County.
The amended complaint seeks a
declaratory judgment that Section
2901.16 Ohio Rev. Code is in vio-
lation of the rights of the plaintiffs
under the six amendments to the
Constitution listed above and for in-
junctive relief.
A motion for a temporary re-
straining order was heard and over-
ruled by the single judge of the
Western Division of the Northern
District of Ohio, and a motion to
intervene as a party defendant on
behalf of the unborn child of the
plaintiff Mary Doe, and the class of
unborn children of the women ot
the class represented by Mary Doe,
filed by Homer Schroeder, M.D., was
granted by this single judge.
Dr. Schroeder also filed a motion
to be appointed as Guardian ad
154
Litem for the unborn child, and
motions for leave to file briefs
amic ■ were filed by a group
of some forty organizations and in-
dividuals supporting the plaintiffs,
and by the Ohio Right to Life So-
ciety, Inc. supporting the defend-
ants. Various other motions were
filed, including motions by all of the
defendants except the intervening
defendant Schroeder to dismiss the
complaint, and a motion of the
plaintiffs to dismiss the intervening
ndant Schroeder.
The motions to dismiss were over-
ruled, as were the motion to appoint
a guardian od litem for the unborn
child and children, and the other
technical motions. The two princi-
pal motions for leave to file briefs
amicus curiae were granted.
The case was submitted upon the
evidence offered at the hearing on
the motion for a temporary restrain-
ing order, certain stipulations, the
deposition of John F. Hillabrand,
M.D., the briefs, and arguments of
coun
The evidence indicated that the
plaintiffs Steinberg and Fitzgerald
had been consulted by the plaintiff
Mary Doe. When Dr. Steinberg ex-
amined her on October second, she
ired to he eight to ten weeks
ant, but he testified that an-
might think she was
twelve to fourteen weeks pregnant.
THE HON". MR. WEICK is an Appel-
U.S. Dist. Ct., Northern
tern Div.
THE HON. MR. YOUNG is a Trial
n U.S. Dist. Ct., North-
ern Dist. Ohio, Western Div.
He also testified that she was in
normal physical condition, and that
her previous pregnancy had been
normal, with no complications. He
further testified that at that stage
of her pregnancy, abortion would
present less hazard to life than to
carry the child to term, but this
situation would not continue, as the
hazards of abortion increase later
in pregnancy.
The plaintiff psychiatrist, Dr.
Fitzgerald, testified that Mary Doe
had a serious defect in her ability
to make judgments about people and
situations ; that her daydreams in-
fluenced her more than the actual
facts; that she was moderately de-
pressed and withdrawn; that she
was seriously disturbed, and pre-
sented gross or serious defects in
her ego-functioning; that she could
become a child-battering mother;
and that she irrationally rejected
the alternative to abortion of carry-
ing the child to term and then con-
senting to adoptive placement. How-
ever, he did not predict that she
would either die or kill herself if
this pregnancy were carried to term,
although it would do her grave psy-
chological harm. He stated that the
likelihood of great damage coming
to the infant from neglect or abuse
were high indeed. It was his con-
clusion that in such states as Cali-
fornia or Colorado, Mary Doe could
receive therapeutic approval for
abortion on psychiatric and medical
grounds.
The evidence revealed that Mary
Doe was a welfare recipient in
Wood County, Ohio, adjacent to
Lucas County. She is twenty-one
155
years old.
Both of the plaintiff doctors testi-
fied that they believed they would be
violating the Ohio abortion statute
if they advised the plaintiff Mary
Doe to seek an abortion outside the
State of Ohio, although it was stipu-
lated in evidence that no physician
had ever been prosecuted in Lucas
County for a violation of Section
2901.16 Ohio Rev. Code as an aider
and abettor on the ground that he
counseled or procured an abortion,
nor had any minister or social
worker. It was also stipulated that
no such prosecutions had ever been
threatened, nor had any of the plain-
tiffs ever been warned by any law
enforcement authorities.
The only other evidence in the
case was the deposition of Dr. Hil-
labrand offered by the defendants.
This concerned the development of
unborn children from conception to
birth. It also offered statistical evi-
dence that the risk of maternal mor-
tality was far higher from abortions
performed even under clinical condi-
tions than from carrying the child
until natural childbirth. This testi-
mony is, of course, in square conflict
with that of the plaintiff Steinberg,
but it is unnecessary for the pur-
poses of this opinion to resolve this
conflict, since it involves policy con-
siderations which are properly legis-
lative, rather than judicial, concerns.
This case presents threshold ques-
tions of the right to injunctive re-
lief, standing of the plaintiffs to
maintain the action, and the doc-
trine of abstention. These problems
have been considered in other simi-
lar cases.
The question of standing is con-
sidered in Roe v. Wade, 314 F. Supp.
1217 (N.D. Texas 1970), and Doe v.
Bolton, F. Supp. (N.D.
Georgia 1970). Both cases resolved
the question favorably to parties
who stood in the positions of the
plaintiffs here. We accept the con-
clusions in these cases, and hold
that the plaintiffs herein have
proper standing to maintain this
action. Cf. Flast v. Cohen, 32 U.S.
83 (1968).
The problem of abstention was
considered and abstention denied in
the case of Babbitz v. McCann, 310
F. Supp. 293 (E.D. Wis. 1970) app.
dis. 39 U.S.L.W. 3144 (Oct. 12
1970). See also, Doe v. Bolton,
supra. There was no proof that
prosecution of any of the plaintiffs
was commenced or even threatened.
Plaintiffs are therefore not entitled
to injunctive relief. The prayer for
injunction restraining the enforce-
ment of the statute is therefore
denied.
This then requires a resolution of
the merits of the plaintiffs' request
for declaratory relief, to which we
now address ourselves.
The plaintiffs' first contention is
that Section 2901.16 Ohio Rev. Code
is unconstitutionally vague and in-
definite. This same contention has
been raised in a number of cases, in-
volving statutes of different states.
There are differences in language
among all of the various statutes
that have been brought before the
courts, and by using the same sort
of hairsplitting semanticism that
the plaintiffs have employed in argu-
ment, it would be possible to dis-
156
•he Ohio statute from the
not appear to us,
sufficient dif-
e among the vari-
nvolved in other cases
:• desirable to use so nar-
and limited an approach to the
ems preferable to take
:id with one group or the other
of the divided authorities.
Abortion statutes have been held
unconstitutionally vague in the cases
rnia v. Belous, 71 Cal. 2d
Cal. Rptr. 354 (1969), 458
, 397 U.S. 915
States v. Vuitch,
Supp. 1032 (D.D.C. 1969),
juris, noted, 397 U.S. 1061
v. Wade, 314 F.
Supp. 1217 (N.D. Texas 1970). Con-
holdings are found in Babbitz
v. McCann, supra and Rosen v. The
nana State Board of Medical
rs, F. Supp.
fE.D. La. New Orleans Div. 1970).
The question was raised, but not
led, in Dor v. Bolton, supra.
We believe that the better reason-
ing is found in those cases which
hold that there is no unconstitutional
ess in the abortion statutes
which thev consider. It appears to
iiat the vagueness which dis-
a the plaintiffs herein results
from their own strained construc-
tion of the language used, coupled
with the modern notion among law
-•iters that anything that is
not c n numerous paragraphs
r»f n >gal terminology is too
support a criminal con-
v. Toledo Metro-
nq Authority, 311 F.
-.D. Ohio W.D. 1970).
The words of the Ohio statute, taken
in their ordinary meaning, have
over a long period of years proved
entirely adequate to inform the pub-
lic, including both lay and profes-
sional people, of what is forbidden.
The problem of the plaintiffs is not
that they do not understand, but
that basically they do not accept, its
proscription.
The second contention of the
plaintiffs and those amicus curiae
who support their position is that
the Ohio abortion statute deprives
them of the right of privacy which
is supposedly protected by several
amendments to the Constitution of
the United States. The arguments
and authorities cited go on at in-
ordinate length, but when the me-
ringue is sluiced away, they come
down to the contention that the de-
cision of the Supreme Court in
Griswold v. Connecticut, 381 U.S.
479 (1965), which recognized the
right of marital privacy by voiding
a statute preventing dissemination
of contraceptive information and de-
vices, must by extension protect the
right to destroy the product of con-
ception after it has taken place.
Again the authorities are divided,
some courts accepting the plaintiffs'
view, and others refusing to do so.
The majoritv of this Court do not
accept the plaintiffs' contentions as
constitutionally valid, but believes
that the cases which do accept them
have not been based on a proper
legal or factual understanding. The
plaintiffs' contentions seek to extend
far beyond the holding in the Gris-
wold case this "right of privacy,"
which is nowhere expressly men-
157
tioned in the Constitution or its
amendments, but is only found in
the "penumbra" of those articles.
Rights, the provision of which is
only implied or deduced, must in-
evitably fall in conflict with the ex-
press provisions of the Fifth and
Fourteenth Amendments that no per-
son shall be deprived of life with-
out due process of law. The differ-
ence between this case and Griswold
is clearly apparent, for here there
is an embryo or fetus incapable of
protecting itself. There, the only
lives were those of two competent
adults.
Without go,ing into all of the
myriad of cases and texts that deal
with various aspects of this prob-
lem, the question resolves itself into
whether or not the state has a
legitimate interest to legislate for
the purpose of affording an embry-
onic or fetal organism an opportu-
nity to survive. We think it has and
on balance it is superior to the
claimed right of a pregnant woman
or anyone else to destroy the fetus
except when necessary to preserve
her own life.
One of the great puzzles of the
law is why its practitioners blithely
argue their cases and make their de-
cision in total disregard, if not ig-
norance, of the laws of nature.
Automobile collision cases, for ex-
ample, are often decided on the basis
of facts which are completely impos-
sible under the physical laws of mo-
tion and mechanics. So in this area,
those decisions which strike down
state abortion statutes by equating
contraception and abortion pay no
attention to the facts of biology.
The evidence offered by the de-
fendants in this case shows clearly,
conclusively, and in detail that nei-
ther the human ovum or spermato-
zoon are alive, or capable of inde-
pendent life, in the accepted mean-
ing of that word. One dictionary
definition of the word "life" is
. . . that quality or character
[that] distinguishes an animal or
a plant from inorganic or dead
organic bodies and which is espe-
cially manifested by metabolism,
growth, reproduction and internal
powers of adaptation to the en-
vironment. Webster's New Inter-
national Dictionary of the Eng-
lish Language (2nd ed. 1934).
Biologically, when the spermatozoon
penetrates and fertilizes the ovum,
the result is the creation of a new
organism which conforms to the
definition of life just given. Al-
though this is a definite beginning,
there is no assurance in any particu-
lar case as to how long the life thus
begun will continue. It may endure
only a few hours or days, or it may
continue in excess of a century, so
far as human life is concerned. In
other life forms it may continue for
many measurable centuries, or even
for an immeasurable and endless
period. Thus when a new life comes
into being with the union of human
egg and sperm cells, it may termi-
nate, or be terminated, at any mo-
ment after it commences, and before,
at, or after the particular develop-
mental process called "birth" takes
place. Such terms as "quick" or
"viable," which are frequently en-
158
countered in legal discussion, are
itifically imprecise and without
•gnized medical meaning, and
hence irrelevant to the problem here
i. As scientific knowledge
of prenatal physiological processes
increases, medical intervention will
hance of avoiding
premature termination of lives of
children, both before and after birth.
Thus contraception, which is dealt
with in Griswold, is concerned with
preventing the creation of a new
and independent life. The right and
power of a man or a woman to de-
termine whether or not to partici-
in this process of creation is
ply a private and personal one
with which the law cannot and
should not interfere.
It seems clear, however, that the
conclusions in Griswold as to
the rights of individuals to deter-
mine without governmental inter-
ference whether or not to enter into
the processes of procreation cannot
be extended to cover those situations
wherein, voluntarily or involuntari-
he preliminaries have ended,
and a new life has begun. Once
human life has commenced, the
itutional protections found in
the Fifth and Fourteenth Amend-
ments impose upon the state the
dutv of safeguarding it.
piously, of course, there are
limits to the protection which the
can and must extend to human
but these are clear and well-
marked in the law, and have been
•iries, essentially on the
'•vation is the
law of nature." Thus through-
he development of our law,
self-defense has always been recog-
nized as a justification for homicide.
Hence the provision in the statute
here in question that abortion is
noncriminal when it is necessary,
or declared by two physicians to be
necessary, to preserve the life of the
mother. One human life may legally
be terminated when doing so is
necessary to preserve or protect an-
other or others.
There is authority for the propo-
sition that human life commences at
the moment of conception.
Biologically speaking, the life
of a human being begins at the
moment of conception in the
mother's womb. 42 Am. Jr. 2d,
Infants §2 at p. 9 (1968).
From the viewpoint of the civil
law and the law of property, a
child en ventre sa mere is not
only regarded as a human being,
but as such from the moment of
conception . . . which it is in fact.
Bonbrest v. Kotz, 65 F. Supp.
138, 140 (D.D.C. 1946).
. . . medical authority has rec-
ognized long since that the child
is in existence from the moment
of conception . . . W. Prosser, The
Law of Torts, §56 at 355 (3rd ed.
1964).
In this connection it should be
noted that Ohio never did follow
Mr. Justice Holmes's opinion in
Dietrich v. Northampton. 138 Mass.
14, 52 Am. Rep. 242 (1884), which
for more than half a century fouled
up the tort law with respect to pre-
natal injuries, but is now pretty well
abandoned by all courts except those
159
which, once having made a mistake,
cannot admit it, but expect the legis-
lature to rescue the public from the
consequences of their error. The
courts of Ohio have never hesitated
to protect a child merely because it
was unborn at the time of injury.
If the law is in accord with
science for the purpose of protect-
ing property rights, how can it pos-
sibly not be in accord with science
for the purpose of protecting life
itself, without which no property
right has any worth or value what-
soever ?
It should perhaps be mentioned
that the implication, or sometimes
the express statement, found in
arguments of persons in the posi-
tion of the plaintiffs in this case,
which equates the necessity of giv-
ing birth to a child with the neces-
sity of rearing the child, has no
foundation in law or fact. The law
may take permanently from its nat-
ural parents a child who is neglected
by them, and the frequent pusil-
lanimity of courts and social agen-
cies in this regard does not change
the legal situation. The statutes of
practically all states provide for the
voluntary surrender of children.
When the statutes are complied
with, the child is legally and prac-
tically as dead to its natural parents
as if it had been aborted, stillborn,
or had died in infancy. The valid-
ity and effectiveness of surrender
statutes have been upheld in every
case in which they have been ques-
tioned. There is no need for par-
ents to terminate an undesired preg-
nancy by killing the unborn child
physically, when with less risk to
themselves its legal death can so
easily be procured.
It is our conclusion that Section
2901.16 Ohio Rev. Code is a valid
and proper exercise of the power
of the state.
The plaintiffs' contention that the
abortion statute is in violation of
the equal protection clause of the
Fourteenth Amendment requires
little consideration. This statute,
§2901.16 Ohio Rev. Code is clearly
nondiscriminatory upon its face.
There is nothing in the evidence be-
fore the Court to show any official
discrimination to the application of
the statute, or in commencing prose-
cutions under it.
Assuming, arguendo, that the con-
tentions of the plaintiffs that
wealthy persons can shop for more
complaisant physicians, or can travel
to remote places where abortion is
legal, while poor people cannot, have
a sound basis in fact, the situation
is not inherent in the language of
the statute. Neither is it caused,
not could it be cured, by either ac-
tion or inaction on the part of the
government, either state or national.
The equal protection clause is not
designed to prevent that inequality
which is often found in life and in
nature, nor could any law be framed
to do so. So far as this case is con-
cerned, on the evidence adduced, the
social and economic conditions al-
leged by plaintiffs as a basis for
their equal protection argument do
not affect any of the actual parties,
and hence the classes they represent.
In seeking a temporary restraining
order the plaintiffs appeared to con-
tend that only the force of the law
160
stood in the way of plaintiff Mary
Doe undergoing the abortion she
' vd, and the other plaintiffs de-
i her, to have. It was not
claimed that her economic or social
situation would prevent her from
getting an abortion.
We do not find that §2901.16 Ohio
Rev. Code is in any way violative of
the equal protection clause of the
Fourteenth Amendment.
The contention that the Ohio abor-
tion statute contravenes the Eighth
Amendment proscription of cruel
and unusual punishment is unworthy
of serious consideration. It may
seem cruel to a hedonist society that
"those who dance must pay the
piper," but it is hardly unusual, and
the language of the amendment is in
the conjunctive, not the disjunctive.
In the complexities of human life it
is not always possible to foretell
with exactitude the entire conse-
quences of even the simplest or
most innocent action. But if it is
known generally that an act has pos-
sible consequences that the actor
does not desire to incur, he has al-
- the choice between refraining
from the act, or taking his chance
of incurring the undesirable con-
sequences. There are no other al-
ternatives. This is peculiarly true
with respect to the bearing of chil-
dren. If one gambles and loses, it is
neither statute nor constitution that
determines the price, or how it shall
be paid. The result is not punish-
ment, but merely the quid pro quo.
The controversial problems of the
plaintiffs should be addressed to the
state's legislature and not the courts
for solution. The courts ought not
to be expected to provide a remedy
for all of the ailments afflicting so-
ciety.
For the foregoing reasons, the
plaintiffs are not entitled to a decla-
ratory judgment invalidating Ohio's
abortion statute, Section 2901.16
Ohio Rev. Code.
This opinion is adopted as findings
of fact and conclusions of law.
Judgment will be entered in favor
of the defendants dismissing the
amended complaint. O
FOOTNOTE
(1) Ohio's abortion statute provides:
No person shall prescribe or administer
a medicine, drug, or substance, or use an
instrument or other means with intent to
procure the miscarriage of a woman, un-
less such miscarriage is necessary to pre-
serve her life, or is advised by two physi-
cians to be necessary for that purpose.
Whoever violates this section, if the
woman either miscarries or dies in con-
sequence thereof, shall be imprisoned not
less than one nor more than seven years.
This statute or one very similar to it has
been in effect since at least 1834. Section 1 of
the Act of February 7, 1834, S & C Stat. 440.
Wilson v. State, 2 Ohio St. 319 (1853). There
have been many prosecutions under it but
until the present case, so far as we have been
able to ascertain, no one has ever challenged
its constitutionality.
Steinberg, et ah, v. Rhodes and Schroeder, No. C 70-S89, U.S. Dist. Ct.,
No. Diet. Ohio, West. Div., Dec. 18, 1970
161
[From the Uncertified Human, vol. 2, No. 2, July 1974]
Michael Litchfield Discovebs
A few years ago, the Lane Committee was appointed by the British govern-
ment to study the effects of abortion on demand in Britain.
The final report of the Committee appeared, even to a usually pro-abortion
press, hardly adequate as reform.
For one, the Committee, like the polite bureaucracy that it is, always issued
"notice" to the nortorious British abortion factories before paying them a
visit — which is a bit like giving "notice" to the Mafia before making a bust.
Consequently, it took a gutsy independent journalist, Michael Litchfield, to
show up the appalling situations at some of these enterprises where, indeed,
one doctor is negotiating with cosmetic firms to have the "really fat babies"
he aborts made into cosmetic soap.
Mr. Litchfield was awarded the Pulitzer prize in 1967 for exposing the
Mafia in the Bahamas.
Litchfield avoided giving the abortion mills adequate notice during his
investigation. What he uncovered is so horrendous as to be unbelievable, were
it not for the fact that every bit of it is on tape.
Litchfield's findings were listed in two News of the World articles. We are
quoting some of them here from the text of his address at the April 28 pro
life rally sponsored by the Society for the Protection of Unborn Children.
"The Lane Committee took three years to look into the workings of the
Abortion Act in Britain. . . . Their brief was to investigate the workings of
the Abortion Act.
"Investigate !
"They could not have uncovered the gravy in a steak and kidney pie.
"They took three years to say that every thing in the garden is rosy.
"I, with another journalist, took three months to prove beyond doubt that
everything in the abortion backyard is overrun with corruption. We two jour-
nalists, trained to investigate, began with utterly open minds ... no precon-
ceived notions . . . not prejudices. And, our tape-recordings are imperishable
testimonies to the organized corruption and prostitution of the medical pro-
fession, from the very top to the very bottom of the abortion trade.
"To hell with the Lane Committee. As investigators, they are a bunch of
amateurs. They gave everyone . . . advance notice of their impending arrival
when they were to visit them.
"I told no one of my activities in advance. Whom do you believe discovered
the truth?
"The lunatic fringe has tried to label anti-abortionists as fascists. However,
let me tell you about two Harley Street surgeons. They are not small fry. They
are very big fish. Big cars, big cigars, big abortion clinics and big bank balances.
Both these gentlemen confided to me: 'The great thing about the Abortion
Act is that it has given us the opportunity to perpetuate Hitler's progressive
thinking.' I have that on tape.
"Which side sounds fascist?
"If I had heard some of the things that I am going to tell you a few months
back I would have thought they were scare stories put about by hysterics.
But the fact is that they were said to me : they were said to me in all serious-
ness and I have them on tape.
"One surgeon, who owns his own abortion clinics, is trying to sell the bodies
of aborted babies to factories for use in making cosmetic soap.
"'Animal fat is a very valuable commodity,' he said. 'I get some really fat
babies. It seems a shame to drop them into an incinerator when they could be
out to such good use, and also make me an extra bob or two on the side.
"All that is tape-recorded.
"The Lane Committee recommends that the time limit for an abortion should
be reduced from 28 to 24 weeks. What a bunch of jokers they are ! They could
reduce the time limit to two weeks and there would still be the same number
of abortions. One woman— the head of a pregnancy advisory service— told us :
'It doesn't matter about how far gone a girl is— we can just fiddle the dates.
Who's to dispute the figures once the child is in the incinerator.' That, too, is
all tape-recorded.
"Mr Michael Grylls MP has threatened us with an amending bill in the
'light of recommendations put forward by the Lane Committee'— so we can
all imagine how much use that would be. His great contribution to British
162
law would be to License abortion agencies (the so-called pregnancy advisory
services), thus outlawing taxi-touts. How much good does Mr Grylls in his
think thai would do-especially since licensing private clinics has
. nothing to curb their brutal trade. In fact, it would be more truthful for
him to legalize the taxi-touts and to outlaw the pregnancy advisory services
because at hast the British public and panic stricken girls would know what
h, tact the abortion treadmill was one of the most frighten-
!,iv cut in- investigation. Girls are literally cornered into abortion.
ien1 they arc declared pregnant by the testing centre or the clinic,
then tor them. They are pushed from one person to another in
ildennent, more or less told that there is no alternative, and come
nut the other end of the sausage machine without their babies, without any-
thing onfusion.
ntless women I spoke to had gone to clinics for advice on their preg-
nancies The rcsulf- They had been told by the clinics that because they were
unmarried they would be social outcasts and the only honourable solution was
to have an abortion. . ,
rtions were fixed and performed within three hours. The girls were
er allowed to go away to think about it. They were whisked from one doctor
not her, and then escorted to their Irflnk to draw out enough cash for the
operation, and back to the clinic and into the operating theatre.
clinic even boasted that they had a "Roman Catholic priest" who tells
Roman Catholic girls that abortion is within the concept of their faith.
en pregnancy testing centres and clinics even found ME pregnant. My
urine was sent by an independent doctor to the clinics and the results were
positive.
•That shows just how well the Abortion Act is working. And that shows,
too. just how badly the Lane Committee did their work."
In conjunction with the rally the Society for the Protection of Unborn Chil-
•nt a letter the same day to the Prime Minister which said, in part:
Abortion Act means that this country is in clear contravention of the
ON Declaration of the Rights of the Child, passed at a time when the effects
ty of the diminution of respect for life could be more clearly remem-
bered. The Declaration states: "The child, by reason of his physical and mental
Immaturity, needs special safeguards and care, including appropriate legal pro-
ri, before birth, as well as after birth."
"Because of the Abortion Act, the plight of deprived women has intensified.
Now, the onus is on a woman to fight often unbeatable social manipulation
in order that she might keep her unborn baby. There is considerable evidence
that the Abortion Act is being used as a palliative for bad housing conditions —
and certainly the illegitimate, the unmarried mother and the physically and
mentally handicapped have suffered as a result of its cruel innuendos.
•For these reasons, we pledge that we will not be fobbed off with spurious
legislation based on the "findings" of the Lane Committee. We pointed out from
the first that the committee (from which anyone who had spoken against
abortion was automatically excluded) was ill-constituted. Objectivity cannot
lie achieved when a committee whose work, in part at least, must investigate
the activities and attitudes of a particular government department, is estab-
lished by that same department . . ."
While it may be too early to tell, it is possible that the fat is in the fire
for the Abortion Act in Britain.
Feminists for Life, Inc.,
Columbus, Ohio, August 30, J 974.
'iTl nn,
tr,
hington, D.r.
BATH. In turn. I would like to thank you for giving me the
opportunity to come before you to testify. I wish all the other members of the
mittee were as conscientious about the matter as you are. Please thank
i ong for being there, even though he left before my testimony, and
• • unknown person on your right.
I omitted two items from my testimony which I meant to include. The first
f with what was to be entered into the record as part of my
mony. From our newsletter, on the first page of which was a
163
letter in support of the Equal Rights Amendment, we meant to include only
the untitled article by George Steven Swan, JD, with its footnotes, which gives
a concise feminist viewpoint on the question of euthanasia. Please pardon
me for the omission.
The second omission was a comment I intended to make relative to the
comment by Dr. Mildred Jefferson that she has never been pregnant. I intended
to mention that I have been pregnant twice, and have participated in child-
birth twice, and it is my considered opinion, having also interviewed numerous
women about their experiences, that except in the case of some abnormality
in pregnancy (about 5% of the total cases) any discomfort which occurs be-
cause of pregnancy or childbirth is 90% caused by our culture ! Those women
who managed to shake the brainwashing about reproduction that our culture
teaches us from very early on, experience no appreciable discomfort, either
during the nine months, or during the birth. I have never experienced morning
sickness, and the only pain I experienced during childbirth stemmed from
interference by attending personnel. I was fully awake and participating through-
out.1 During my pregnancies I led a normal active life, which, during my second
pregnancy, included attending school half time (I was out for 3 days for child-
birth), graduating a year and a half later, confounding Feminists for Life,
playing judo and swimming up to within 5 days of childbirth and taking up
less than three weeks after, which included a distance swim two weeks prior
to childbirth of 2% miles. Please note that as a child I was considered frail.
It is my considered opinion that one of the primary causes of the current pres-
sure for abortion stems from the negative aura surrounding pregnancy and
childbirth, and that it is our duty as feminists to work to educate the public
about the true nature of woman's reproduction as an integral and natural part
of her sexuality, and to see to it that no discrimination is practiced against
women who are reproducing. Cordially,
Pat Goltz.
Senator Bath. We have just been informed that President Ford
is going to address a session of the Senate here in about an hour or
so.
I will tell yon, if I have questions that I cannot resolve, I will ask
you to submit answers in writing if I may.
Ms. Goltz. That is fine. You also may have the resources of our
organization for additional information if you want it.
Senator Bath. Thank you very much. I appreciate that.
Mr. Warren A. Schaller. president and executive director of the
American Citizens Concerned For Life.
STATEMENT OF WARREN A. SCHALLER, JR., EXECUTIVE DIRECTOR,
AMERICAN CITIZENS CONCERNED FOR LIFE, INC.
Mr. Schaller. Senator Bayh and members of the subcommittee on
constitutional amendments, my name is Warren Schaller. I am an
Episcopalian minister. I have been active in local. State, and Na-
tional pro-life groups for several years. Today I am addressing you
as the president and executive director of American Citizens Con-
cerned for Life, Inc. My testimony is a statement on issues which
are relevant to the pro-life community of America.
ACCL is committed to work toward an America in which abortion
is not practiced because of respect for the life of the unborn child,
and abortion is not needed to solve the social, emotional, medical.
or personal problems of American women. The only exception to this
position is an abortion to save the life of the mother when no other
1 1 had no anesthetic prior to birth. Both births lasted four hours each ; they were not
induced.
164
method of medical treatment offers a reasonable promise of protect-
ing the lives of both the mother and the child.
A unique human individual comes into being at conception. In
order to protect this new life, ACCL supports the enactment of the
ible amendment to the Federal Constitution. We under-
R an amendment must contradict the Supreme Court de-
January 22, 1973, at several basic points: (1) The amend-
ment should prohibit the actions of private individuals which would
,v the Life of the unborn child; (2) the amendment should
the legal personhood of the child in the womb from the be-
ginning of its biological development; (3) the amendment must
allow the exceptional ease of abortion to prevent the death of the
motl
\( ( I. also commits itself to work toward a society where abortion
is not needed. We accept National, State, and local political leaders
as our partners in this effort. We believe they recognize, as we do,
that it should not be necessary to sacrifice the rights of the unborn
ler to alleviate poverty or to impose conditions in urban ghettos.
We do not accept as final a view of America which says that children
must grow up homeless or unwanted or abused if they are not
aborted. We do not believe that young women must lose their oppor-
tunities for education or employment because they have become preg-
nant. Therefore, we ask the Members of Congress to both protect
and enhance all human lives, and to join with us in developing the
following alternatives for dealing with the social and personal prob-
of women who are pregnant and distressed.
In the area of family life and childbirth education, both men and
women must understand the development of the newly conceived
life in the womb of a mother, and understand the woman's own
physiological, psychological, and interpersonal response to it, so they
can accept the fact of the new life and assume responsibility for it.
We encourage childbirth and family life education programs which
for both men and women, acceptance of their own bodies and
their own sexuality. These educational programs should be based on
jtandards of the communities in which they are taught, and
should involve the parents of students who are minors in the plan-
ning of the courses and selection of materials. The goals of such
tould be to develop positive standards of responsible sex-
uality and responsible parenthood. We look forward to the results
search which is designed to identify those factors which are
tial in a healthy family environment and designed to develop
improving the quality of American family life,
of family planning, women should be able to control
own reproductive functions and couples should be able to de-
termine the size of their family, so long as the means thev employ
t roy a newly conceived life or deny that new life its proper
We encourage research in reproductive biology to fur-
velop a varietv of family planning methods which are ap-
to people of different backgrounds and different beliefs,
30 '"' newly developed techniques are not intended or
abortifacients. Public family planning programs
8hould '" an integral part of comprehensive medical care,
165
and they should avoid indoctrination of the recipients into specific
contraceptive techniques which are preferred by certain agencies or
organizations. We object to any programs which involve penalties
or incentives that oblige social workers or health care personnel to
disseminate information which may not be desired by recipients of
public benefits, or that oblige these recipients to practice contracep-
tion.
In the area of birth defects, being different is no reason for not
being, and we reject eugenic feticide, that is, killing of the unborn,
or infanticide, that is killing of the newly born. We do approve and
encourage research into the causes of birth defects, if the purpose
of the research is to benefit both the individual involved and future
generations. Genetic counseling is accepted if the purpose is to enable
high-risk parents to responsibly choose not to have a family. We
encourage the elimination of disease rather than the elimination of
diseased individuals, and point to programs to eliminate potential
birth defects through rubella vaccination and through veneral dis-
ease treatment and prevention as just two examples. Detection and
monitoring of high-risk pregnancies is appropriate to enable prompt
pre- and post-natal treatment and rehabilitation. We encourage Fed-
eral agencies to carefully screen potentially teratogenic, that means
defect-causing, drugs. And we look forward to the development of
insurance programs which would defray catastrophic medical ex-
penses by paying benefits to the parents of children diagnosed as
having medical problems of a major degree. Such benefits should be
payable when the medical problems are diagnosed, whether during
the prenatal period or at any time after the birth of the child. We
support tax deductions for all adoptive parents, and incentives for
the adoption of exceptional children. We also encourage the develop-
ment of special educational programs for exceptional children, equal
work and social opportunities for them, consideration for them in the
designing of buildings and civic projects, and so on.
In the area of fetal experimentation, proper concern for the rights
of the unborn child need not bring medical research to a halt. New
therapeutic techniques can be used with the hope of proving them
superior to traditional methods of treatment, after adequate theo-
retical work and animal experimentation has been carried out. Par-
ents can give consent for experimental therapeutic treatment of the
unborn if there is a valid reason to believe that such treatment is in
the best interests of the child. In addition, organs may be trans-
planted from the dead fetus, and tissue cultures may be developed
from fetuses which are clinically judged to be dead according to the
same criteria which would be used for a born child or adult. We
recommend careful retrospective clinical and statistical study of de-
fective babies for identification of teratogenic drugs. However, this
is not the same thing as purposefully introducing known or suspected
harmful substances for research purposes into the live unborn child
or into his mother, which substances could cross the placental bar-
rier. Systematic benefit should not be derived from systematic in-
duced abortion. We do not approve of experiments which would be
judged cruel or senseless by the average sensitive layman. And par-
ents cannot consent to nontherapeutic research on unborn children
who are being purposely aborted.
166
In the area of euthanasia, by referring to personhood in the whole
nd the capability of meaningful life, we believe that the Su-
eme Court on January 22, 1973 opened the door to unfortunate
future decisions in the area of euthanasia. Therefore, we would like
to clarify, for the guidance of members of Congress, what we under-
,1 to be the important principles involved in the euthanasia
debate.
No. 1 : If properly understood, we take no exception to the idea
of a dignified death. By this, we mean allowing a terminal patient
die a truly humane death — to free the dying from the loneliness
ami alienation which may accompany the application of extraordi-
nary treatment where there is no hope of cure, no hope of restoration,
or continuation of life. However, this euthanasia does not involve
gleet of the dying patient, for he, like any other human being, is
entitled to medical care which is reasonable and prudent under the
circumstances involved.
No. 2: We oppose mercy killing, which is the intentional use of
medical technology to cause or to hasten death. Mercy killing can
include abandonment of a patient or withdrawal of ordinary — by
that we mean prudent — medical care, as for instance when mongo-
loid children are denied ordinary treatment for pneumonia.
\o. :; : We see a dangerous trend developing toward death selec-
tion. This death selection is killing as a medical management option.
It might be called managerial euthanasia, and involves defining cer-
tain classes of human beings as incapable of meaningful life and not
persons in the whole sense. Classes of individuals who may be subject
to such definitions are the habitual criminal, the aged, the seriously
mentally ill. the retarded, and so on.
Additional Programs: We favor mandatory maternity insurance
benefits for all women regardless of marital status. Needy mothers
iuld be eligible for AFDC payments for their unborn child as soon
as pregnancy is diagnosed and' continuing for the full duration of
pregnancy. The classification of illegitimate should be removed from
birth certificates. Low-cost housing should be made available to
parent families. Day care facilities should be available when
mothers must work to provide for themselves and their children.
!acilities should be widely available and controlled by the
community standards and administered by the citizens of the areas
in which they are located. Equal educational opportunities should
be available for pregnant women both during and following the
pregnancy, which education should include, in addition to the reg-
irriculum, training in parenting skills, education and job train-
md marriage counseling.
The preceding is meant to be a suggestive rather than an ex-
! programs we would like to encourage.
Bayh, you know what an extraordinary undertaking it is
ittempt to amend the Constitution on any subject, let alone on
ibortion. Tt will take an enormous organiza-
il effort and educational campaign to accomplish this task. We
- to amend the Constitution. Senator Bavh, because we are
to make the effort involved. Tn the process of bringing about
i revolution, we accept responsibilitv for helping to change the
167
conditions of life for women who are pregnant under unfortunate
circumstances, so that they need not resort to the choice of abortion.
We invite you and other members of the Judiciary Committee to join
with us in developing a suitable amendment to the Constitution to
protect the life of the unborn child, and to work with us for its
passage by two-thirds of the Senate. We likewise pledge to you our
support in passing legislation which will ameliorate the conditions
of disadvantaged and vulnerable pregnant women, children who need
special care and protection, and families who face exceptional prob-
lems in attempting to care for and raise their children. The pro-
life movement will be the partners and supporters of elected leaders
who are working for the protection and enhancement of all human
lives, and we will champion legislation to bring about these goals.
Thank you.
Senator Bayh. Thank you, Mr. Schaller. I noticed your presence
very continuously as we have studied this matter. I do not want to
open a Pandora's box but to try to help the committee and par-
ticularly the chairman, am I right in saying that you were previously
employed by or a part of the National Right to Life Committee?
Mr. Schaller. That is right.
Senator Bath. Would it be helpful in our study to quickly define
the differences that exist or would it not be helpful or necessary?
Mr. Schaller. I would be glad to make available to you in the
near future some program outlines of ACCL and to help you under-
stand the differences in the two organizations.
As you have all here observed there are several organizations in
the pro-life movement. Each organization has its own highest pri-
ority goals, although we certainly all share the same ultimate goal,
and that is to pass an amendment to protect the unborn child and
other defenseless human beings.
It is sometimes necessary for a division of effort in order to meet
several different kinds of goals or priorities of a short -term nature,
so people who are involved with me in ACCL are most concerned
right now to concentrate on organizational development across the
country. We also are concerned, as this testimony I think illustrates,
to develop a legislative program both on a national scale and for
the use of State legislators, which will illustrate in very specific
terms the concern of the Right to Life movement, not only for pro-
tection of the unborn and prohibition of the act of abortion but also
concern for the women and the families involved. We support im-
provements of society which we feel go hand-in-hand with protection.
That is a very short statement.
Senator Bath. I certainly appreciate those differences and if you
care to give us further details, I would be glad to incorporate them
in the record or read them for my own edification, whichevor you
prefer.
Mr. Schaller. I would like to stress, though, that I do not believe
this can be seen as an event which will weaken or fracture the Right
to Life movement. I do not think you can find anything much more
cohesive or militant than the Right to Life movement. You may have
noticed that.
Senator Bath. Well, at least the concern described as militancy,
if you care to, certainly is rather evident. I noted that you empha-
168
size the intensity of the feelings here in your closing remarks by
suggesting that this is a controversial amendment. I think beyond
that 11 is a rery complicated one. I know of no other amendment
that involves the scientific, legal, technical ramifications that this
<IIir '''
I certainly hope you appreciate that fact as well.
Mr. Schalleb. I certainly do.
Senator Bath. 1 will be in touch with you in the future.
Mr. Schalleb. I appreciate that very much, sir; thank you.
Senator Bath. The committee is now recessed, subject to the call
of the Chair.
| Whereupon, at 1 :40 p.m., the subcommittee recessed, to reconvene
subject to the call of the Chair.]
169
ABORTION
THURSDAY, SEPTEMBER 12, 1974
U.S. Senate,
Subcommittee on Constitutional Amendments
of the Committee on the Judiciary,
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:30 a.m., in room
318, Russell Senate Office Building, Senator Birch Bayh (chairman
of the subcommittee), presiding.
Present: Senators Bayh (presiding), and Fong.
Also present: J. William Heckman, chief counsel; Abby Brezina,
chief clerk ; and Teddie Phillips, assistant clerk.
Senator Bayh. We will reconvene our hearings.
Apologies to our witnesses for my tardy arrival. I got nailed be-
fore I could get out of the office. I am sorry for the inconvenience it
may have caused you.
The first witness today, forming a panel, speaking for the Na-
tional Abortion Rights Action League, Ms. Pamela Lowry, executive
committee member of NARAL and director of constitutional defense
project, Massachusetts ; Dr. Jane Shoup, a member of the Coalition
for Freedom of Choice, the State of Indiana, Mrs. Dorothy Roude-
bush, chairperson, Committee for Legal Abortions, of Missouri.
I appreciate the fact that you will join us this morning.
Who wants to start.
STATEMENTS OF MS. PAMELA LOWRY, EXECUTIVE COMMITTEE
MEMBER OF NARAL AND DIRECTOR OF CONSTITUTIONAL
DEFENSE PROJECT, MASSACHUSETTS; DR. JANE SHOUP, MEMBER
OF COALITION FOR FREEDOM OF CHOICE, INDIANA; DOROTHY
ROUDEBUSH, CHAIRPERSON, COMMITTEE FOR LEGAL ABOR-
TIONS, MISSOURI
Ms. Lowry. I think that I have been picked by straw vote to begin.
My name is Pam Lowry
Senator Bayh. Is that a two to one vote?
Ms. Lowry. I was stomped on this morning.
I think that was partly because I have been a veteran of testifying
before the Massachusetts Legislature and people felt anyone who had
braved the Massachusetts Legislature could start out this morning.
Senator Bayh. They say the same thing about Indiana.
Ms. Lowry. I am here representing the National Abortion Rights
Action League started in 1968. It is a group that is dedicated to pro-
tecting the right of choice for all women in the question of the bear-
ing of children. It is a broad coalition group.
(169)
170
I think too ofteD this issue is set up so people assume there are
only two sides and both are extremist. But I think there are a large
number of people who, while they are not particularly comfortable
with abortion and noi proabortion, are very strongly prochoice and
fore represent a very strong middle segment of society.
RAL used to be ("ailed the National Association to Repeal
irtion Laws, [ts purpose was to repeal restrictive laws across the
tttry. Following the U.S. Supreme Court ruling, it seemed very
ir that the name should be changed, that it was no longer neces-
i it any effort in legislative arenas concerning the right
3e ; but we were very obviously wrong, and I think that is
what brings us all here today.
1 have been involved in this field, family planning, sex education,
abortion, for about a decade. I started with the Planned Parent
gue of Massachusetts. I can remember on the first official day
that I spent there as a staff member, August 1, 1965, the executive
director went over and watched the Massachusetts general court de-
feat a bill which for the first time would have legalized contracep-
. The legislature voted to make it illegal for a physician to fit
a diaphragm or prescribe pills or even give contraceptive advice to
a 1". year-old mother. This was the way things were in that time.
Senator Bath. When was that?
Ms. Li 'wry. This was 1965. Just after the Griswald decision.
The legislature chose to ignore it, not because they as individuals
opposed birth control. We could count the numbers of senators and
representatives who voted against birth control whose wives we knew
re on the pill. It was very clear this was a vote giving in to a very
well organized, very vociferous religious lobby existing in Massachu-
. and known to exist there still.
Planned Parenthood concentrated on changing the contraceptive
laws. What was incredible was, at that time, the fact was that it was
i a legal abortion in Massachusetts than contraception.
Abortion was permitted under a restrictive the life of the mother
being imperiled. Yet her doctor could go to jail if he prescribed
contraception for her. Our concentration was making birth control
legal and available by changing the laws. Gradually change they did.
pie began to be less embarrassed to come forward to legal legiti-
mate sources of information and medical help, and things began to
open up.
I think it was inevitable that with this increased honesty and open-
somebody should eventually feel this might apply one step
further.
i young woman— T think she was about 27 vears old — she
B in uiied. with one very young child, walked into the Planned
Parenthood office and sat down and explained that, for her, it was
too late for contraception. Thev had used a method, it had failed
was pregnant. She knew that Planned Parenthood dealt
ith contraception, but could we help her, give her information, tell
ier where to go to gel an abortion? Well, this threw the staff into a
luandary. We did some research and within a week that
on a plane going to Japan. The onlv legal options open
physically healthy person were to either go behind the
< artam or t,, travel half wav around the world.
171
After this incident we informed our medical advisory committee.
They all lifted eyebrows, spoke with concern and felt that because
this was an issue of great controversy, we should go very, very
slowly on it. As soon as they got back to the offices, however, they
went through patient registers and started referring people to us
for trips to Japan.
I can appreciate the dilemma on the one hand feeling that it was
something nice people weren't involved in, and on the other hand,
feeling it was a great relief to have an out — for the patient.
So Planned Parenthood, much against its wishes, found itself in-
volved in referring cases for abortion out of the country and around
the world.
In 1968 the British changed their laws. They passed a fairly sweep-
ing reform act. It was a very, very liberal law. The cost of going to
London for an abortion was half that of going to Japan. For $800
you could get on the plane and go and get legal medical care. This
opened up a tremendous — a flood gate of people who felt that they
could somehow manage $800 and who came to Planned Parenthood
for help and information.
I can remember some of the cases that came in. Most of them are
generally a blur, and I am not sure how valuable it is to start talk-
ing about individual case histories. I am sure this committee has been
hit with everybody's life story. There are a few who stand out. I
don't know if you know Boston, but there was one woman from
South Boston who came in. She had five children and was married,
and she had never been outside the limits of Metropolitan Boston.
The farthest she had gone was on the MTA up to Revere Beach. She
had a morbid fear of flying. That woman got together her life sav-
ings and put her five children in the care of her sister and flew off to
London. It was an incredible thing to watch this happen. It was an
incredible thing to watch these people come in the door and see how
they had to pull their lives together and deal with this situation, and
on top of it deal with restrictive laws at home. Even more frus-
trating, the ones who, when you said $800, sat there in utter silence
and bewilderment, with tears in their eyes because there was nothing
they could do. These were the people who went back out of that
office and started the hunt for classic illegal abortions.
I will be honest, There were some half way decent, half way com-
petent illegal practitioners around at that time. There was a licensed
physician who was a surgeon and he worked out of Boston about 10
blocks away from a major Catholic maternity hospital. He charged
$650. If you wanted an anesthetic it was an additional $100.
There was a man in Newton who I once saw who was also a lic-
ensed physician. He was an alcoholic and he drank during procedures
in order to steady his hand; and so it went, down the rung of the
people who weren't physicians and so on. It was a terrible kind of
thing to witness.
People like me who had to sit and counsel them, and people across
the country who came in contact with situations like this really felt
moved to clo something. You either had to get out of it completely
and isolate yourself from the reality or do something to change it.
This is how groups like NAARL got started with men and women
57-782 O - 76 - 12
172
across the country, with somebody who was trapped by the discrim-
inatory laws who' felt, "we have to change this, it ]ust isnt fair.
( foe of the things we did in Boston was to get together a coalition
of clergymen, social workers, psychiatrists, family, planning experts
and physicians and set up a group called Pregnancy Counseling
Service which opened its doors the first month in 1970. This was 6
months before the New York law changed. In those months that
Pregnancy Counseling Service operated, primarily as an information
and referral center, it saw. before the New York law changed, 2,000
women. This was a fledgling operation, a fledgling organization, yet
in the first 6 months, we saw 2,000 women from all across Massachu-
setts; women also came down from Maine, from Vermont, from
( Jonnecticut. Forty percent of those women in the pre-New York era
went t.» London and had abortions there. Ten percent decided to con-
tinue with their pregnancy or had no option but to continue with
their pregnancy. Ten percent got abortions under therapeutic laws
that were beginning to loosen up in Massachusetts, California and
Washington, b.C, although it cost more to go to California than it
did to rlv to London. Forty percent of that caseload went illegally
or, as people say euphemistically, extra legally. With the advent
of the New York law, it was extraordinary what a difference it made.
Within 1 month there was not one more illegal case that came
through the office. There was not one more trip to London. It was
like. well, today's picture of the stock market. Certain referral cate-
gories went straight down. There were no more referrals to London,
no more illegal cases at all. Suddenly we were able to say, "no, you
don't have to leave the country; yoii only have to drive 200 miles."
It meant for the first time we were able to offer legal operations and
provide decent medical care for women who, in the past, had had no
options at all — unless you consider going to the pharmacist in Rox-
bury and getting little black pills as an option, or going to that hair
dresser in Quincy who used to do quite a job with a lye douche.
You get bombarded with statistics all the time, so I won't quote
the numbers, but I really think the change that we witnessed was
our that is just very hard to put into words. The statistical tables
that are released by the Center for Disease Control and things that
come out of U.S. Public Health Service say it, I think, in figures and
in numbers. What we saw was the human side of it, and that was
just extraordinary.
With the Supreme Court riding we made yet another dramatic
leap. People who were involved in health care, welfare services, social
ices, counseling, and medicine all across the country breathed a
tremendous sigh of relief when that ruling came down. We had seen
a lot of problems in referring women to resources that were 200 miles
'v or, since I am just speaking for Massachusetts, for many peo-
]>'>■ who were literally thousands of miles away. You don't get quality
medical 'ate when you have to go that far to be placed under a doc-
tor*- advice. I think all of us were greatly relieved and we sat back
and -aid. "thank heavens. We tio longer have to do battle, we can
on with the business of providing just basic, decent health care."
Well, obviously, we spoke too soon. Very quickly there arose sev-
groups particularly a great alliance between extremely con-
173
servative organizations and authoritarian religious groups — which
joined forces to try to overturn the U.S. Supreme Court ruling. I
think the really sad thing is that the focus of these groups who may
be very sincerely and thoughtfully opposed to abortion has been on
people like you, has been on the legislature, has been in the form
of filing bills and attaching riders and trying to amend the U.S.
Constitution, because the reality is that an antiabortion victory, if
you want to call it that, that comes out of oppressive legislation is a
very hollow one. It serves only those who are truly vindictive, be-
cause a legislative change isn't going to stop abortions. There are
very few people who could honestly come before you and suggest
that making abortion illegal is really going to make a significant
difference.
Senator Bath. Let me deal with that question. One of you or all
three of you.
We have had figures printed that show there has been an increase.
How significant an increase depends on whose figures one relies on,
but at least the number of abortions that we know about have gone
up significantly. It is, of course, always difficult to nail down the
number of illegal abortions.
Is it your opinion that there would be no difference in the num-
bers, that there might not be a good number of women who didn't
have the $800 when forced to look at that test of doing something
illegal or dangerous, might decide to have the child; do you have any
data?
Ms. Lowry. Well, I think we have probably seen the same studies.
I would agree with what you say. I think there has been an indication
that legally situation has made a difference and that certain groups
have gotten abortions that would not in the past have gotten abor-
tions.
Senator Bath. Perhaps I should ask you too — it might be more
helpful and easier on you to confine your answer to that question to
the statistical area that you are familiar with. What about Massachu-
setts? What data do you have about illegal abortions before? and
the number of abortions that are performed now?
Ms. Lowry. I have one piece that covers really New York rather
than Massachusetts and one — I will have to say undocumented im-
pression from our own group in Massachusetts. A significant study
was done by Dr. Tietze in New York that indicated that certain
groups, the very young and older women were getting abortions that
would not have in the past. We, of course, saw this in the Pregnancy
Counseling Service in Boston.
The people under restrictive laws who did not get abortions, yet
who wanted them were usually the 13-year-olds and 14-year-olds
who didn't come to the office until they were literally 19 and 20 weeks
extraordinary situations where the parents didn't know that the
girl was pregnant, even though to anybody else looking at her, she
was obviously pregnant. The very young teenager who was terrified
to tell anybody, who reallv just hoped it would go away, and really
didn't say anything until it was too late. For this kind of person, at
19 weeks', to go to an illegal abortionist is to invite death right there.
An illegal abortionist just wouldn't touch a pregnancy that far
174
along To have a hospital-based, second trimester abortion is not, I
can't say, the worlds simplest procedure, but it is done and in fact
the second trimester procedures tend to be on the very young, so I
think it would be fair to say there has been a transition— that before
the laws changed that particular segment did not get abortions.
The trouble is. if we turned back, what would happen? We have
thousands oi physicians who have dealt with abortion as a medical
rather than a legal issue. They have seen it as an integral part of
medical 'are. Could you plunge that whole group back into the Dark
Aires I I think that 'one could probably say that in an area where
hoi was unavailable and you suddenly legalized alcohol you
might see an increase in consumption. Where it was generally avail-
able and you banned it. given the people who knew how to make
bathtub gin, I wonder. I wonder, looking at prohibition particularly,
whether one would go back
Senator Bath. I am not too sure, although some of that bathtub
gin was powerful stuff and had a powerful impact on people, I am
not too sure the impact on people of drinking a little illegal booze
was the same thing as a person having an illegal abortion.
Ms. Lowry. Xot at all, but I draw on this image as a parellel in
terms of human nature. The fact is, from our experience, women who
want to have an abortion will have an abortion come hell or high
water. What really happens is, if you make a law restrictive you
don't change that fact. You certainly effect the circumstances. You
can set up a very punitive system so that people who get abortions
will have them under the worst possible circumstances, but they will
have them. That is a subjective statement and I realize you are bom-
barded with subjective statements.
I feel there is a better way for people who are concerned about
abortions and don't like abortions or are sensitive to the difficult
moral questions that abortions present to attack this. I think that
there are lots of ways that we can really fight abortions.
Senator Bayh. How?
Ms. Lowry. Well, starting with the field that I am most interested
in. family planning and sex education should receive the widest pos-
sible support. T know some people have trouble with their religious
backgrounds and birth control. So there are other approaches as
well.
Senator Bayh. Wo are dealing here with an area that — take poli-
out of it. if it is possible for somebody who is running for re-
election to do so. After the election there will be no question about
my ability to do that. But try as I have to look at it objectively, I
have never fared anything that has even approximated this issue
in combining a deep moral fervor, and on both sides. Those who are
talking about the right to choose in this country and the people who
b ■«•! thai that is taking life feel very strongly about it. I can certainly
understand that from my own personal standpoint.
The scientific medical-legal question is very complex. So here we
asked to get the Government involved in trving to sort this out,
whhh ie a very, very difficult thing to do. I ask this question only
because the Government is being asked bv some to sort this out, not
175
that I feel that the Government has any position to sort out the
question I am about to address to you.
First of all, let me say I don't believe the Government has a role
in trying to determine bedroom practices dealing with the differences
that some people have about the morality or immoralities of certain
types of birth control methods, short of abortion.
Have you noticed any change in the attitudes that prevailed earlier
relative to the immorality of using certain kinds of birth control?
Has there been a movement toward feeling maybe we can bend a
little bit and accept certain types of birth control as being better
than the abortions?
Ms. Lowrt. Oh, yes. I think there is no question but that birth
control is now used by members of religious groups that have tra-
ditionally opposed contraception. While the hierarchy may still stand
in that position, the hierarchy isn't going to deal with the results
of the problem. Certainly most young people with education are
strongly in favor of contraception and birth control, and that usage
by certain religious groups which have a traditional posture against
it is actually identical to use by groups that don't have that religious
background. I think that is very significant.
I think another thing, in addition to the changing values and
attitudes on contraception, is that the women's movement of the sup-
port by the general populace of the improvement of women and their
image of themselves and their options has been every bit as good a
contraceptive and contraceptive motivator as have birth control pills.
I think motivation is a key thing here. If you are going to fight abor-
tion you have got to look at why people get pregnant if they don't
want to get pregnant, and, too. why people who get pregnant feel
compelled to terminate it because of external circumstances. We have
a classic image of who this person is, who is pregnant, and who is
seeking an abortion, and we settle on an 18-year-old college student,
but the reality is that this is not the typical case. Our society is not
very tolerant of the 35-year-old mother who has four children who
is pregnant and wants to go through with this pregnancy and give
the baby up for adoption. Our society is very, very punitive to that
person. She is a "bad" mother. She is a "terrible" mother. She doesn't
like her child enough to keep it. What kind of dreadful person must
she be. So this woman is faced not with the choice of continuing the
pregnancy and giving up for adoption, or continuing and keeping,
and terminating. She is faced with the question "can she live in her
neighborhood or not," and if she personally feels she cannot handle
a fourth child she doesn't have the option of giving it up for adop-
tion, not because of the law but because of the attitude. I think avo
can work to change these broad punitive attitudes — anything. It is
the whole gambit; it is better education; better welfare rights: bettor
health care, all of these things that make people feel they can't have
one more child. I think that is something everybody should bo able
to work for. That is the direction we have to go in. Wo cannot go
back to the days where a woman in Portland, Maine, had to get up
at 2 a.m. to go to a clinic in New York for a 10:30 appointment and
then to turn around and get back on that bus and ride for 7 hours
to get back to her home town after an abortion procedure. We just
176
can't go back to that We can't go back to the time before that, when
women who could raise $800 or $1,500, traveled to London or Japan
and the women would couldn't get that kind of money went under-
ground and went down the back alleys. We can't go back that way
again. ,
I hope we never go back to the way it was 10 years ago, when,
with sisT in my pocket. I walked down the lower end of Massachu-
setts Ave., the seedy side of the town, the seedy side of the tracks—
1 won't go into all of the details, but it ended up in a chiropractors
office and it is the kind of experience which changes your life. It
changed mine. It made me feel very strongly that whatever energies
1 had, whatever education I had, what skills I had, had to be put
toward making sure that no other woman would ever have to do it
the way I did it: prevention, wherever possible, in all ways possible,
but there had to be options for people like me.
1 realize this is a politically sensitive issue. I realize you must be
under pressure, but I really hope that what comes through from
these hearings, from the letters that come in to you and even from
a sense of what people are thinking, what the majority of people
think, that you can perceive there are good arguments on both sides
and can respect those arguments and particularly can support a U.S.
Supreme Court riding which echoed that respect and which was not
proabortion, but prochoice — which set down as the law of the land a
ruling which said that each and every individual should be free to
follow Ids or her most sincere conscience and religious beliefs in that
matter free from coercion or interference by the U.S. Government.
That is all 1 have to say.
\I-. Km mm si i. Thank you, Senator Bayh, for permitting me to
speak with you about this serious matter in an atmosphere that is
deliberative and trustful. I commend you for the many hearings you
have held relative to these proposed amendments and the spirit of
fairness and honest inquiry with which they have been conducted.
1 am Mrs. George Roudebush of St. Louis, Mo., president of the
committee for legal abortion in Missouri. Our citizens' group was
formed in 1969, at first to establish in Missouri the legal right of any
woman to secure a safe abortion; and to protect that right, after
the Supreme Court decision of January 22, 1973, affirmed it. Our
committee is affiliated with the National Abortion Rights Action
League, of which 1 am a director.
My interest in many aspects of family planning and maternal
health extends over many years and has led me into many activities.
I am currently on the board of directors of the Planned Parenthood
ociation <>i' St. Louis, and on its Speakers' Bureau. In the sixties
I headed a citizens' committee to initiate birth control services in
public health institution of the city and county. Subsequently I
chaired a coalition task force bringing together agencies in the field
which has now developed into the St. Louis Metropolitan Area
Council for Voluntary Family Planning, Inc. These activities all
M from my abiding belief that women are entitled to know how to
manage their reproductive life, for their good, for the good of their
children, for the well-being of society. My concern tells further that
they must have access to the best possible medical services and re-
177
liable information within their financial reach to plan their child-
bearing — always on a voluntary basis. While my activities in the
field of family planning have been exclusively as a volunteer, I am
professionally trained as a counselor, having received the M.A. de-
gree in that specialty from Washington University as recently as
1968. Let me anticipate your possible questions and add that : I am
married to a lawyer, we are the parents of three grown children, and
the grandparents of three. I am a lay reader in the Episcopal Church.
Obviously, with this background and experience, I speak not as an
expert — you have heard from many in many fields — but as an active
citizen. I intend to limit my remarks to the question before the com-
mittee which is, I understand: Shall the Federal Constitution be
amended to deny women the right to choose whether to continue
pregnancy, a right upheld by the U.S. Supreme Court decision in
January of 1973. I hope to focus on the moral issue surrounding the
right of privacy and freedom of conscience for the individual woman.
Our committee supports the decision of the court and continues
to believe that it represents a compromise in that it leaves open and
available the option of abortion, yet imposes it on no woman. The
court recognized that a woman is more than a reproductive unit — to
use a label applied by one of our opponents whom you have heard
here, that she is a person of dignity, competent to make decisions
about the most intimate aspect of her life. The court opinion frees
her to act according to her best judgment — and she will aways choose
the greater good as she see it. Her childbearing is not to be dictated
by the State ; before the court ruled, legislatures could hold that a
woman must bear that child, once pregnant. For compulsion by legis-
latures, the Supreme Court decision substitutes the judgment of the
individual woman ; she is given the privilege to choose according to
her own reason and moral sense. Surely this is the way we have
traditionally dealt with moral choices in our free society — with high
regard for a wide diversity of views. There is nothing in the Supreme
Court decision that prohibits a woman from acting in according with
the moral teachings of her church, nor from seeking counsel with
any other source of help that she respects. The moral and ethical
teachings she received will be factors in her decision, of course. The
kind of teaching that will reduce the need for abortion might be a
more constructive program for those against abortion rights than
attacking the U.S. Supreme Court. I am speaking of early instruc-
tion in sexuality and values of family planning in the schools, in-
volving parents ideally. The goal of such courses should be to "de-
velop positive standards of responsible sexuality and responsible
parenthood"— to quote from the Keverend Warren Schaller whom
you heard for the opposition on August 21.
Our position that the abortion decision is rightfully the woman s
is far from advocating abortion. And it is a long way from giving the
States the power to compel a woman to go through with an undesired
pregnancy; or the power to compel a woman to terminate it. This
fear of government control is very real to our opponents. Yet ex-
perience in other countries does not justify that fear. For example.
Sweden and Denmark legalized abortion in the 1930's, Japan in 194S.
Nothing like imposed euthanasia, or compulsory sterilization, or gov-
178
eminent dictation of family size has occurred. The enormity of
Hitlei idal programs is often cited. Yet the fact is that under
Hitler. Germany passed one of the most restrictive abortion laws in
v. making even the act of assisting in an abortion a penal
offen . .
ther objection that is made to the Supreme Court decision is
that it has reduced the powers of the State to legislate. I do not
understand this argument. In the first place, a State reasonably regu-
late the abortion procedure for the protection of maternal health
after the firsl trimester — during which the decision must be left to
the woman and her doctor. Second, the State's power to prohibit
abortion after viability is upheld, provided that continuation of the
pregnancy docs not threaten the life or health of the woman. What
more restrictive provision can there be that does not abridge the right
of the individual woman? Tn holding as it did, the Court was not
usurping the authority of the legislatures. It simply pointed out the
limits of the constitutional rights of the pregnant woman, and thus
of the States authority to legislate.
The States have shown down the years a legitimate interest in the
health of women through enactment of medical practice statutes,
through penalties for the illicit practice of medicine, through guide-
developed by the appropriate professional agencies. It is not
clear to us that additional legislation at any level is needed. We pre-
fer that the law remain silent on the subject. A statement from the
late Father .John Courtney Murray, one of the principal architects
of the Second Vatican Council on Religious Freedom, seems pertinent
here :
Laws should seek to maintain only that minimum of actualized morality that
Is necessary for the healthy functioning of the social order. Is is prudent to
undertake the enforcement of this or that ban ... in view of the possible harm-
ful effects in other areas of social life? Is the instrumentality of coercive law
us for the eradication of this or that social vice?
This statement of principle relates directly, I believe, to the divisive
which con fionts ns. Dissatisfaction with the Court's decision has
precipitated a controversy marked by a rancor and fanaticism that
are regrettable at a time in the Nation's history when we need to
draw closer together. These destructive feelings will surely intensify
and a disastrous cleavage result if the proposed amendments pass the
nd go to the States for ratification. It is saddening to think
h a cruel eventuality. Of all aspects of a woman's life that
should be supportively surrounded with compassion and sensitivity
n is her childbearing. In this man's world— for so it still is — we turn
I for that kind of understanding. We ask you to turn down the
constitutional measures before you.
reproductive discretion is our objective— and this is well
I in the Supreme Court decision— we do not believe that we need
tion on other issues with which our adversaries would like
te us. However, there are two points that I feel obliged to
ii rebuttal to arguments 1 know you have heard here. The first
9 thai we advocate abortion as a method of contraception. As I have
said, we are not advocating abortion, but a woman's right to choose.
I- urthermore, abortion is by definition not a contraceptive method; it
r conception has occurred. We do not regard it as a sub-
179
stitute for the practice of contraception, but as a remedy for failed
contraception or a lack of prudence or simply innocence of human
biology. In the perfect world, there will be no need for abortion, for
we will have a fail-proof contraceptive universally employed and
every pregnancy will be planned. Hasten the day. The other criticism
directed at us which I would like to answer is that we are depriving
adoptive parents of children to adopt. At least that is the way I read
our adversaries' bumper stickers. In the first place, it seems to me that
adoption was devised originally to provide homes for children who
had none. Have we not switched things around so that unwilling
women must be compelled by the State to deliver children for adults
who cannot have their own? What a diabolical use of a woman.
Perhaps this is the function the speaker had in mind in referring to
women as "a reproductive unit"! Furthermore, to require by law
that a woman go through with an unwanted pregnancy and then
compound her misery by offering as a solution the relinquishing of
the child seems to me utterly heartless. As to the supply of children
available for adoption, I should like to quote from a release from the
Children's Bureau of the Department of Health, Education, and Wel-
fare dated April 19, 1974 ; headed "Statistics Pertaining to Children
in Need of Abortion" :
Although there are no firm statistics as to the number available, it is known
that the vast majority of children for whom adoption might be suitable are
over 6 years of age, are physically, mentally, or emotionally handicapped, or
are in large family groups where the children should not be separated.
Recent estimates of the number of children who could profit by adoption indi-
cate that there might be about 100,000, most of whom are currently in foster
care.
This information seems to me to speak against the argument that
women should be compelled to go through with unwanted pregnancies
to supply children for adoption.
Reproductive freedom is our objective. It is abridged without ac-
cess to abortion, a right upheld by the Supreme Court decision.
Women do have problem pregnancies.
I have here included the report of two cases that have recently
come to my attention.
One, a 40-year-old mother of four planned children, another a 17-
year-old college freshman. I think in the interest of time I will not
read those, since you have heard numerous cases recited here by Pam
Lowry.
Senator Bath. We will in the record. Yes, they are in your text.
Ms. Rouderbtjsh. Let me tell you about two cases that have recently
eome to my attention.
A 40-year-old mother of four planned children finds herself preg-
nant, despite the practice of contraception. Her husband has been
handicapped in such a way that he can no longer work. She lias taken
a job to supplement his' meager compensation and help meet the
mounting expense of education for her children. This is possible for
her now that the youngest child is in school most of the day. The
prospect of going' through a potentially dangerous, late pregnancy
to deliver an unwanted infant is devastating to her. Added to which
is the insoluble problem of family finances if she quits work to bring
up a child. Should she not have tlie right to choose to have a medically
180
safe abortion? Or does society feel it can make a judgment for her
and condemn her and the child to a dismal future? By what author-
ity can we make that judgment?
Or another case. A 17-year-old college freshman on a scholarship,
overwhelmed by her new liberties, has too much beer at her first all-
night party, and finds three weeks later that she is pregnant. She
comes from a family where sex was not discussed, from a school with
taboos against any kind of instruction in family planning, froma
community just getting underway with birth control clinics that will
treat minors. What now are her' alternatives? Society afforded poor
ones before the Supreme Court decision legalized abortion. Let's look
at them. There is marriage — if she could be sure which boy was
responsible and coerce him. Percentage of success for those marriages
is very low. She might go to another city, have the child and put
it out for adoption. This would mean giving up her scholarship,
giving up college, maybe forever. Giving up an infant. She might keep
the child and raise it alone. Would her mother be overjoyed to take
<are of that out-of-wedlock child while the teenager went out to work
to support it? Then there are the desperate alternatives — like at-
tempting brutal self-abortion, or even suicide. How can a humane
society take away from this young woman the option of safe, legal
abortion available now under the Supreme Court decision? How
would a return to the days of the back-alley operator serve this
woman -or the common good? We need to ask ourselves whether it
i- not lather our vindicative craving to punish that would be served.
In Missouri safe, legal abortion is available— subject to recently
imposed restrictions which we deplore and which are not being chal-
lenged in court cases. Women who choose this solution to a problem
pregnancy can he treated at clinics in the St. Louis area, at Columbia,
and in the Kansas City area. Some 7,300 women chose this solution
in 1973, according to figures released by the Missouri Center for
Health Statistics — although some of them had to go out of the State
for treatment. There is no reliable way of comparing this figure with
the number of illegal abortions done prior to January 22, 1973. Be-
cause they were outside the law they were not recorded, for the
protection of the woman, her family. "her physician. Deaths related
to criminal abortion were ascribed to septicemia or hemorrhage, for
the same reason. The view that the option of safe, legal abortion must
remain available as made possible by the Court's decision is gaining
adherents in Missouri. Our membership grows daily, as do financial
donations. Support among the professional groups is evidenced in
our letterhead: We have advisory groups of medical specialists — in-
cluding the chief of the department of obstetrics and gvnecologv at
Washington University in St. Louis— and of clergymen — including
'lie bishop of the Episcopal Diocese of Missouri. A dozen or more
influential organizations, several with statewide memberships, have
I us in support of liberalized abortion laws and of the Supreme
( '"'I it decision. Von have a list attached to your script, T believe.
Let me say, however, that even if there were not such general sup-
port tor the Court, even if we are to he in the minority, our rights
I would deserve the protection of the Constitution. We resist the
>!itv that a crusade mounted primarily by a religious group
seeking implementation in the civil law of their sectarian belief
181
could deprive us of our constitutional rights. We therefore ask that,
as you deliberate, you put first the rights of women and assure us
that you value our capacity to make wise judgments in this most
personal decision, where individual conscience must govern.
I like the way Bishop George Cadigan expressed his views some 3
years ago :
Proposed legalization of abortion in the State of Missouri has precipitated
violent debate which has focused disproportionately on the acceptability or un-
acceptability of this means of solving an undesired pregnancy. Regard for the
sancitity of life has been repeatedly invoked, as if only some of us valued, or
appreciated, the true worth of human life * * *
The "Tightness" or "wrongness" of abortion * * * is not the critical issue
here. The issue is the larger ethical one : Can any one of us stand in the role
of judge for the personal decisions of others? What robes shall we wear?
Greater than the debatable immorality of terminating an undesired pregnancy
is the immorality of refusing a woman access to medical help when she has
determined that she needs it. A law that compels a woman to continue an
undesired pregnancy is evil — as evil as a law that would compel her to have
an abortion.
If there is any single thought that I would like to leave with you
it is : that pregnancy is a deeply significant event in a woman's life.
The decision to terminate a pregnancy is equally significant. The
woman must be trusted to make that decision and have the freedom
to act upon it without interference by the State.
That concludes my testimony.
[The testimony of Mrs. George S. Roudebush follows:]
Testimony of Mrs. George S. Roudebush, Board of Directors of
National Abortion Rights Action League
Senator Bayh and members of the Committee: Thank you very much for
the opportunity to speak with you about this serious matter in an atmosphere
that is deliberate and trustful. I commend you for the many hearings you
have held relative to these proposed amendments and the spirit of fairness
and honest inquiry with which they have conducted.
I am Mrs. George Roudebush of St. Louis, Mo., president of the Committee
for Legal Abortion in Missouri. Our citizens' group was formed in 1969, at
first to establish in Missouri the legal right of any woman to secure a safe
abortion ; and to protect that right, after the Supreme Court decision of Jan-
uary 22, 1973, affirmed it. Our Committee is affiliated with the National Abor-
tion Rights Action League, of which I am a director.
My interest in many aspects of family planning and maternal health extends
over many years and has led me into many activities. I am currently on the
Board of Directors of the Planned Parenthood Association of St. Louis, and on
its Speakers' Bureau. In the sixties I headed a citizens' committee to initiate
birth control services in public health institutions of the city and county. Sub-
sequentlv I chaired a coalition task force bringing together agencies in the
field, which has now developed into the St. Louis Metropolitan Area Council
for voluntary Family Planning, Inc. These activities all stem from my abiding
belief that women are entitled to know how to manage their reproductive life,
for their good, for the good of their children, for the well-being of society. My
concern tells me further that they must have access to the best possible medical
services and reliable information within their financial reach to plan their
child-bearing— always on a VOLUNTARY basis. While my activities in the
field of family planning have been exclusively as a volunteer, I am profession-
ally trained as a counselor, having received the M.A. degree in that speciality
from Washington Universitv as recently as 1968. Let me anticipate your
possible questions and add that : I am married to a lawyer, we are the parents
of three grown children, and the grandparents of three. I am a lay reader in
the Episcopal Church.
With this background and experience, I obviously speak not as an expert—
you have heard from many in many fields— but as an active citizen. I intend
182
to limit inv remarks to the question before the Committee which is, I under-
stand shall t!i»' Federal ('(institution be amended to deny women the right
to choose whether to continue pregnancy, a right upheld by the U.S. Supreme
(Curt decision In .January of 1073. I hope to focus on the moral issue sur-
rounding the righl of privacy and freedom of conscience for the individual
woman. „ ...
Our Committee supports the decision of the Court and continues to believe
thai it represents a compromise in that it leaves open and available the option
of abortion, yet Imposes it on no woman. The Court recognized that a woman
la more than "a reproductive unit"— to use a label applied by one of our op-
ponents; that Bhe Is a poison of dignity, competent to make decisions about the
most intimate aspect of her life. The Court opinion frees her to act according
to BBB best judgment (and she will always choose the greater good as she sees
:t i Her child-bearing is not to be dictated by the state; before the Court ruled,
ores held that a woman must bear a child, once pregnant. For compul-
sion by Legislatures, the Supreme Court decision substitutes the judgment of
the individual woman; SHE is given the privilege to choose according to her
own reason and moral sense. Surely this is the way we have traditionally dealt
with moral choices in our free society— with high regard for our diverse views.
There is nothing in the Supreme Court decision that prohibits a woman from
acting in the accord with the moral teaching of her church, nor from seeking
counsel with any other source of help that she respects. The moral and ethical
teachings she received will be factors in her decision, inescapably. The kind of
teaching that will reduce the need for abortion might be a more constructive
program for those against abortion rights than attacking the Court. I am speak-
Ing of early instruction in sexuality and values of family planning in the schools,
Involving parents ideally. The goal of such courses should be to "develop posi-
tive standards of responsible sexuality and responsible parenthood" — to quote
from the Rev. Warren Schaller whom you heard for the opposition on August
L'lst.
our position that the abortion decision is rightfully the woman's is far from
advocating abortion. And it is a long way from giving the states the power to
compel a woman to go through with an undesired pregnancy; or the power to
compel a woman to terminate it. This fear of government control is very real
to our opponents. Yet experience in other countries does not justify that fear.
For example. Sweden and Denmark legalized abortion in the 1930's, Japan in
1948. Not hint' like imposed euthanasia, or compulsory Sterilization, or govern-
in. Tit limitation of family size has occurred. The enormity of Hitler's genoeidal
programs is often cited. Vet the fact is that under Hitler, Germany passed one
of the most restrictive abortion laws in history, making even the act of assist-
ing in an abortion a penal offense!
Another objection that is made to the Supreme Court decision is that it has
reduced the powers of the state to legislate. I do not understand this argument.
In the tirst place, a state may reasonably regulate the abortion procedure for
i he protection of maternal Health after the first trimester (during which the de-
cision must be left to the woman and her doctor). Secondly, the state's power
t" prohibit abortion after viability is upheld, provided that continuation of the
pregnancy does not threaten the life or health of the woman. What more re-
strictive provision can there be that does not abridge the right of the individual
woman'.' In holding as it did. the Court was not usurping the authority of the
legislatures. It simply pointed out the limits of the constitutional rights of the
pregnant woman, and thus of the states' authority to legislate.
The states have shown legitimate interest in the health of women through
enactment of medical practise statutes, through penalties for the illicit practise
of medicine, througb guidelines developed by the appropriate professional
agencies, il i- nol clear that additional legislation at any level is needed. We
prefer that the law be silent on the subject. A statement' from the late Father
John Courtney Murray, one of the principal architects of the Second Vatican
Council on Religious Freedom, seems pertinent here:
Should -eek to maintain only that minimum of actualized morality
that is necessary for the healthy functioning of the social order. Is it prudent
to undertake the enforcement of this or that ban ... in view of the possible
harmful effects in other areas of social life? Is the instrumentality of coercive
law a good means f«.r the eradication of this or that social vice?"
This Btatemenl of principle relates directly. I believe, to the devisive issue
which confronts us. Dissatisfaction with the Court's decision has precipitated
183
a controversy marked by a rancor and fanaticism that are regrettable at a time
in the nation's history when we need to draw closer together. These destructive
feelings will surely intensify and a disastrous cleavage result if the proposed
amendments pass the Congress and go to the states for ratification. It is sad-
dening to think of such a cruel eventuality. Of all aspects of a woman's life
that should be supportively surrounded with compassion and sensitivity it is
her childbearing. In this man's world — for so it still is — we turn to you for
that kind of understanding. We ask you to turn down the constitutional mea-
sures before you.
Since reproductive discretion is our objective (and this is well served in the
Supreme Court decision) we do not believe that we need state a position on
other issues with which our adversaries would like to associate us. However,
there are two points that I feel obliged to make in rebuttal to arguments that
you have heard here. The first is that we advocate abortion as a method of
contraception. As I have said, we are not advocating abortion, but a woman's
right to choose abortion. Furthermore, abortion is by definition not a contra-
ceptive method ; it is used after conception has occurred. We do not regard it
as a substitute for the practise of contraception, but as a remedy for failed
contraception or a lack of prudence or innocence of human biology. In the per-
fect world, there will be no need for abortion, for we will have a fail-proof
contraceptive universally employed and every pregnancy will be planned. The
other criticism directd at us which I would like to answer is that we are de-
priving adoptive parents of children to adopt. At least that is the way I read
our adversaries' bumper stickers. In the first place, it seems to me that adoption
was devised originally to provide homes for children who had none. Have we
now switched things around so that unwilling women must deliver children for
adults who cannot have their own? What a diabolical use of a woman. Perhaps
this is the function the speaker had in mind in referring to woman as "a re-
productive unit" ! Furthermore, to require by law that a woman go through
with an unwanted pregnancy and then compound her misery by offering as a
solution the relinquishing of the child seems to me utterly heartless. As to the
supply of children available for adoption, I should like to quote from a release
from the Children's Bureau of the Department of Health, Education, and Wel-
fare dated April 19, 1974 ; headed Statistics Pertaining to Children in Need of
Adoption:
"Although there are no firm statistics as to the number available, it is known
that the vast majority of children for whom adoption might be suitable are
over 6 years of age, are physically, mentally, or emotionally handicapped, or
are in large family groups where the children should not be separated.
"Recent estimates of the number of children who could profit by adoption in-
dicate that there might be about 100,000, most of whom are currently in foster
care."
This information seems to me to speak against the argument that women
should be encouraged to go through with unwanted pregnancies to supply chil-
dren for adoption.
Reproductive freedom is our objective. It is abridged without access to abor-
tion, a right upheld by the Supreme Court decision. Women do have problem
pregnancies. Let me tell you about two cases that have recently come to my
attention.
A 40-year-old mother of four planned children finds herself pregnant, despite
the practise of contraception. Her husband has been handicapped in such a way
that he can no longer work. She has taken a job to supplement his meager com-
pensation and help meet the mounting expense of education for her children.
This is possible for her now that the youngest child is in school most of the day.
The prospect of going through a potentially dangerous, late pregnancy to deliver
an unwanted infant is devastating to her. Added to which is the insoluble
problem of family financies if she quits work to bring up a child. Should she
not have the right to choose to have a medically-safe abortion? Or does society
feel it can make a judgment for her and condemn her and the child to a dismal
future? By what authority can we make that judgment?
Or another case. A 17-year-old college freshman on a scholarship, over-
whelmed by her new liberties, has too much beer at her first all-night party,
and finds three weeks later that she is pregnant. She comes from a family whore-
sex was not discussed, from a school with taboos against any kind of instruc-
tion in family planning, from a community just getting underway with birth
control clinics that will treat minors. What now are her alternatives? Society
afforded poor ones before the Supreme Court decision legalized abortion. Let s
184
](,ok at them. There la marriage — if she could be sure which boy was responsible
and <"tnv him. Percentage of success for those marriages is very low. She
might go to another city, have the child and put it out for adoption. This would
in. an giving np her scholarship, giving up college, maybe forever. Giving up an
infant. She might keep the child and raise it alone. Would her mother be
overjoyed to take care of that out-of-wedlock child while the teen-ager went
ont to work to support it? There there are the desperate alternatives — like
attempting brutal self-abortion, or even suicide. How can a humane society
take away from this young woman the option of safe, legal abortion available
now under the Supreme Court decision? How would a return to the days of the
back-alley operator serve this woman — or the common good? We need to ask
ourselves whether it is not rather our vindictive craving to punish that would
lie served.
In Missouri safe, legal abortion is available — subject to recently imposed re-
Btrictions which we deplore and, which are now being challenged in court cases.
Women who choose this solution to a problem pregnancy can be treated at
clinics in the St. Louis area, at Columbia, and in the Kansas City area. Some
7300 women chose this solution in 1973, according to figures released by the
Missouri Center for Health Statistics (although some of them had to go out of
the state for treatment ). There is no reliable way of comparing this figure with
the Dumber of Illegal ahortions done prior to January 22, 1973. Because they
utside the law they were not recorded, for the protection of the woman,
her family, her physician. Deaths related to criminal abortion were ascribed
to septicemia or hemorrhage, for the same reason. The view that the option of
safe. le>,ral abortion must remain available as made possible by the Court's
decision is gaining adherents in Missouri. Our membership grows daily, as do
financial donations. Support among the professional groups is evidenced in our
letterhead: we have advisory groups of medical specialists (including the chief
of the department of obstetrics and gynecology at Washington University in
St. Louis) and of clergymen (including the Bishop of The Episcopal Diocese
of Missouri). A dozen or more influential organizations, several with state-wide
memberships, have joined us in support of liberalized abortion laws and of the
Supreme Court decision.
Let me say that even if there were not such general support for the Court,
even if we are to he in the minority, our rights still would deserve the pro-
tection of the constitution. We resist the possibility that a crusade mounted
primarily by a religious group seeking implementation in the civil law of their
sectarian belief could deprive us of our constitutional rights. We therefore ask
that, as you deliberate, you put first the rights of women and reassure us that
you value our capacity to make wise judgments in this most personal decision,
where individual conscience must govern.
I like the way Bishop George Cadigan expressed his views some three years
ago :
"Proposed legalization of abortion in the state of Missouri has precipitated
violent debate which has focused disproportionately on the acceptability or
unaceeptability of this means of solving an undesired pregnancy. Regard for
the sanctity of life has heen repeatedly invoked, as if only some of us valued,
or appreciated, the true worth of human life . . .
•The 'lightness' or 'wrongness' of abortion ... is not the critical issue here.
The issue is the larger ethical one: can any one of us stand in the role of
Judge for the personal decisions of others? What robes shall we wear? Greater
than the debatable immorality of terminating an undesired pregnancy is the
immorality of refusing a woman access to medical help when she has deter-
mined that she needs it. A law that compels a woman to continue an undesired
pregnancy is evil as evil as a law that would compel her to have an abortion."
If there i^ any single thought that I would like to leave with you it is: that
pregnancy is a deeply Significant event in a woman's life. The decision to ter-
minate a pregnancy Is equally significant. The WOMAN must he trusted to make
that decision and have the freedom to act upon it without interference by the
state.
Committee fob Legal Arortion in Missouri
"I would have heen married to someone T didn't love and who didn't love me
And there would have been a child that neither of us wanted. It's like I was
given >!.'ince at life."
185
Abortion is generally therapeutic in most cases if a woman truly desires the
procedure. This is one finding of a recent St. Louis study1 Interviewing a ran-
dom sample of 1000 women who contacted a problem pregnancy counseling
service; follow-up interviews one-two years after abortion were done on two-
thirds of the group.
WHO OBTAINS AN ABORTION?
Average age : 22 yrs. (Age 13-44).
White : 87%.
Protestant : 51%.
Employed : 47%.
Catholic : 30%.
Single : 59%.
Attending School : 33%.
WHY DID THESE WOMEN FACE AN UNWANTED PEBGNANCY?
No birth control method used : 52%.
Unreliable method of birth control (rhythm or withdrawal) : 8%.
Majority denied any conscious wish to become pregnant.
Majority said they did not believe pregnancy would occur even though they
were sexually active.
Reasons for not using contraceptives ; Needs to deny there had been a con-
scious decision to have intercourse ; Feelings of guilt about sexual activity.
Contraceptive failures : Mostly related to lack of knowledge regarding use of
method, or misinformation regarding reliability of birth control measures.
AFTER-EFFECTS OF ABORTION
Immediate. — With few exceptions, the women were functioning well. Al-
though frequently mentioning desperate feelings while pregnant, the crisis
ended for them with the abortion. Many reported feeling relief and satisfaction.
Few experienced depression, remorse or guilt, and for them reactions were
usually mild and self-limited.
Delayed. — 1-2 years after abortion.
Doing well with no psychological after-effects : 90%.
Moderate to severe emotional discomfort : 4%.
Satisfaction with their decision and not regret: 94%.
Regret over decision: These few women felt they had been influenced by
others regarding abortion.
Many viewed the experience as a growth producing or maturing process.
Many reported that abortion allowed them to stay in school, continue enjoy-
able jobs, or devote more time to families.
None of the married women reported change in marital status or change in
relationships with their husbands.
Statement on Liberalizing of the Abortion Statute, by the Right Reverend
George Leslie Cadigan, Episcopal Bishop of the Diocese of Missouri
Proposed legalization of abortion in the state of Missouri has precipitated
violent debate which has focused disproportionately on the acceptability or un-
acceptability of this means of solving an undesired pregnancy. Regard for the
sanctitv of life has been repeatedly invoked, as if only some of us valued, or
appreciated the true worth of human life. Opponents of liberalized abortion
laws argue from the assumption that the unborn child has an absolute right
to be born— into whatever circumstances— because of its huinanness from the
moment of conception. Therefore, they reason, that a woman who deliberately
interrupts a pregnancy is guilty of great moral evil. It follows, for them, that
the law must prohibit her from choosing this course. She must not be permitted
to reach an independent decision for the direction of her life at this most se-
rious juncture, and the option of abortion must be denied her.
No one knows better than the woman unwillingly pregnant that she faces a
difficult moral decision. But our respect for her ability to make that decision
1 Characteristics of Women Who Obtain Abortions, Elizabeth Smith, MSW, Dept. of
Psychiatry, Washington Univ. School of Medicine, St. Louis, Mo.
186
In ;i responsible way requires that we, by our laws and by our attitudes, grant
• Hal freedom.
When a human life may be said to begin is a profound ethical question, as is
the question of when protection of a greater good justifies the interruption of
., natural Phe answers cannot be final or universal. They must be
Bought every time the questions come, and, in every case, by the individual
it Intimately concerned. It is at once the glory and the burden of
each of us that we arc called upon to make such difficult personal decisions ac-
cording to our own es. When we deny that liberty to any one of our
e away a part of our own birthright. When, more specifically,
woman for making an independent judgment according to her
relating to her reproductive life, we denigrate her personhood.
"wrongness" of abortion as the solution of a problem preg-
nanes- is nnt the critical issue here. The issue is the larger ethical one: can
a,,v oi and in the role of judge for the personal decisions of others?
What robes shall we wear? Greater than the debatable immorality of terminat-
1 pregnancy is the immorality of refusing a woman access to
; help when she has determined that she needs it. A law that compels, a
ontinue an undesired pregnancy is evil — as evil as a law that would
compel her to have an abortion. The present restrictive statute in Missouri con-
demns the woman who chooses abortion to be furtive, to seek dangerous ways
..ut of her desperate situation. It can make of her a criminal or the victim of
barbarous exploitation.
A society which cannot in common humanity extend a way to such a woman
r conscience dictates fails her at a time when she most needs sup-
portive concern.
If we truly believe in the capacity of each individual to determine the course
of the future— painful and agonizing as the process may be; if we honor the
concepl of individual accountability for every member of the human family —
then, as a society, we can no Longer assign to the state the power to make, for
a member of that society, a conscientious and most personal decision.
owing Dumber of organizations and agencies in Missouri have expressed
their support of the Supreme Court decision establishing a woman's right to
abortion.
These include:
American Association of University Women. Missouri Division.
erican civil Liberties Union of Eastern Missouri.
Episcopal Church Women United.
Missouri Council of Churches.
National Association of Social Workers, St. Louis Chapter.
National Council of Jewish Women, St. Louis Section.
National Organization of Women.
Planned Parenthood Association of St. Louis.
Planned Parenthood of Warrensburg.
Reproduction Health Services, Inc.
Women's International League for Peace and Freedom.
Women's Political Caucus- .Missouri.
Young Women's Christian Association.
Other organizations which have taken a public stand in favor of liberal
abortion laws are ;
Bealtb and Welfare Council of Metropolitan St. Louis.
State Medical Association.
White House Conference on Children and Youth, Missouri Committee Report,
1970.
I »i. Shoup. Mi. ( !hairman, thank you very much for the opportun-
1 testify as a representative of the National Abortion Rights
Action League, an organization opposed to the constitutional amend-
ment.- now under consideration by this subcommittee. I am acting
head of the Department of Biological Sciences at Purdue University
Calumet Campus. Hammond, End., where 1 am associate professor,
i my Ph. I), in Zoology at the University of Chicago.
'i- Would you permit me one male chauvanistic re-
mark |
187
Dr. Shotjp. Yes.
Senator Bayh. I don't recall any Purdue faculty meeting your
description when I was going there.
Dr. Shoup. Times have changed.
In a year and a half since the Supreme Court decisions reaffirming
the right of women to choose pregnancy termination, a highly publi-
cized, well-financed campaign has been launched by so-called right-
to-life groups across the country, their purpose being to enact legis-
lation to limit access to and ultimately ban abortion altogether in the
United States. Interestingly, these efforts come at a time when abor-
tions are increasing worldwide.
In recent months, citizens across the country concerned about the
far-reaching implications of such restrictive legislation have recog-
nized the need to organize and present an opposing viewpoint. Some
of these groups have united their efforts by forming as affiliates of
XARAL, and one such group is the Indiana Freedom of Choice Coal-
ition, which has chapters in each of the congressional districts in the
State of Indiana. Our purpose is to educate and inform the public
about the importance issues involved and to urge our elected repre-
sentatives in Congress to support the Supreme Court decision of
January 22, 1973.
There are a number of important reasons why abortion must be
available as an option to women with problem pregnancies. Some
lawmakers, while opposed to complete liberalization of abortion laws,
concede that abortion should be available when necessary to preserve
the life of the woman or in cases of rape or incest.
I believe that is the position taken by your opponent in Indiana.
Senator Bayh. I am not too sure what his position is. I am not
too sure that is of concern for us here. Perhaps that is pertinent to
you back in Indiana, but not for us here.
Dr. Shotjp. I would like to discuss three other reasons in some
detail, with reference to a few statistics for the State of Indiana,
especially the Calumet Region and the metropolitan Chicago area in
which I reside. I will then discuss the question of when life begins
from a biological perspective.
(1) CONTRACEPTIVE FAILURE
As we all know, perfect contraception — 100 percent safe and 100
percent effective — is not yet available. The oral contraceptive the most
efficient method, has a small, but significant failure rate and more-
over, thousands of women cannot for medical reasons use it safely.
Other devices are less successful in preventing unwanted pregnancies.
Added to this are the thousands of pregnancies which result from
ignorance of biological facts and/or legal or procedural restrictions
to access to contraceptive devices. A 1970 national fertility study
found that 26 percent of couples who use contraception fail to delay
a pregnancy which they do not intend to have at all. More than one-
third of couples who use birth control because they want no more
children have a pregnancy within 5 years.
Similar results are found in an Indiana survey : among 35 women
interviewed bv Planned Parenthood of Xorthwest Indiana during
a 3 month period if 1973, 47 percent had become pregnant because
188
their methods of contraception has failed or because protection had
been discontinued on the advice of a physician.
In sum. unwanted and unplanned pregnancies do occur with
starting frequency and for a variety of reasons. We must ask, "Is it
morally defensible to force a woman to bear a child against her will?"
ould like to insert a personal note. My husband and I are the
parents <>f two very much loved and wanted children. I became preg-
nant I1 .. vears ago with a third as a result of a contraceptive failure.
We chose an illegal abortion. This was prior to the availability of
legal abortions in this country. Our reasons were primarily a matter
of social conscience. We already had two children, as many as we felt
ue could justifiably to the population. We were concerned with the
bell-being of society. We felt that any additional children we desired
we ought to adopt.
i 2 i BIRTH DEFECTS
The second item is birth defects. Some 250,000 children with serious
birth defect- ace born in the United States each year. Serious fetal
anomalies occur in 15-40 percent of cases in which the pregnant
woman contracted rubella during the first trimester, which means to
that individual that her chances of giving birth to a normal, healthy
baby are significantly diminished. A number of genetic and develop-
mental defects such as Mongolism, Tay-sachs disease, Hurler's syn-
drome, and may other crippling or fatal diseases — can now be de-
tected in utero by the procedure known as amniocentesis, in which a
sample of amniotic fluid is extracted from the uterus of the pregnant
woman, usually at about the 16th to 18th week, i.e. during the second
trimester. With such medical procedures available it is now possible
to give a woman a choice whether or not to give birth to a child for
whom life may he an unmitigated misery and for whose family severe
psychological and economic hardships are inevitable. Which of us
ild presume to preclude options for a woman who finds herself
in this tragic situation? The proposed Constitutional amendments
would deny that woman the right to terminate her pregnancy if she
I' sired.
MATERNAL HEALTH
In previous testimony, you have heard of the public health benefits
of legal abortion in the States of Xew York and California. I would
like to share with you information from other parts of the country.
Prior to L973, < !ook ( !ounty Hospital in Chicago admitted an average
of mote than 330 women per month for complications resulting from
illegal abortions. Since abortion has been declared legal, an average
"I' •'■ women per month are treated for consequences of abortion.
In the tiist year of the liberalized Xew York abortion law — Julv
. L970 through dune 30, 1971 -2,800 Indiana women traveled to New
rk to terminate unwanted pregnancies. An estimated 2,500 legal
ere carried out in Indiana in 1973. Tn the first 5 months
°f 1 "; legal abortions have been reported. In a 6-month
I - ike ( ounty Indiana women who sought counseling
problem pregnancies, 71 percent chose abortion; among 54 women
studied in Porter County. 89 percent opted to terminate their preg-
nan<
189
Statistics show that two-thirds of three-fourths of all legal abor-
tions are replacements of illegal ones.
The study of Tietze has been reaffirmed by June Sklar and Beth
Berkob in a report which came out this week in the September issue
of Science.
Clearly, women will terminate pregnancies whether abortion is
legal or not ; the question is, will all women, regardless of social and
economic status, have access when needed to medically safe abortions^
A human being can scarcely be more desperate than a woman preg-
nant against her will. To deny her the right to reproductive self-
determination is to violate her fundamental right to privacy.
In the context of an over-populated world facing rising costs for
food, goods, and services, and the grim reality of shortages even in
our own country, who can seriously propose that more unplanned
children are needed, especially children for whom adequate provision
cannot be made ? It is quite clear that we don't satisfactorily care for
many of the children Ave already have. Limitation of family size is
often an economic necessity. In more than a few cases, women choose
abortion in order to provide better opportunities for the practical
necessities of life for living children.
Most people support the right to free choice of abortion because
they love children and are concerned for the welfare of potential
children and those already born. This concern is a highly moral and
practical one. Often, if a woman is forced to have a child before she
is ready to care for it, she may never know the joy of having a wanted
child.
For these reasons and others, safe, legal abortion must be available
as a subsidiary method of birth control. Rather than "How can we
justify abortion?" We must ask the question, "How can we justify
compulsory pregnancy?" Because of contraceptive failure, serious
fetal defects, and for maternal health, abortion must remain a legal
alternative. We must remember that amendments to the Constitution
which establish personhood for the fertilized egg deny a woman's
right to control her reproductive life. Potentially, it can mean com-
pulsory pregnancy for any woman.
The controversy surrounding abortion often centers on widely
divergent response to the question, "When does life begin?" At what
point in a 9-month pregnancy can we call the fetus a human being, or
person : at the moment of conception ? at implantation? at the moment
of birth? With present medical techniques it is impossible even to
detect conception and implantation; only some days after the con-
ceptus has embedded itself in the uterine wall can a pregnancy be
confirmed. From a biological point of view it is impossible to state
categorically that life begins at any one particular moment. The
unfertilized egg is just as much "alive" as the fertilized one, in that
it possesses the properties we recognize as characteristic of life. Yet
biologically, embryos and fetuses are distinguished from the more
completely formed stages. As human ecologist Dr. Garrett Hardin
has pointed out, "An acorn is not an oak tree, an egg is not a hen,
a human fetus is not a human being or person. Smashing acorns is not
deforestation, scrambling eggs is not gallicide."
Most biologists think of life as a continuum, a series of stages or
events from conception to death. Individual cells are born and die
190
throughout this continuum from the earliest prenatal stages to death
of the organism. To impose arbitrary distinctions as to which moment
marks the beginning o! life is intellectually dishonest, not justifiable
on the basis of our current knowledge. What remains of this debate
are honest differences of opinion among people of good will as to
the commencement of life, the acquisition of soul or personhood by
the fetus at some particular stage of development or by the newborn
baby. This is a judgment or definition made by individuals based on
religious, moral, and/or philosophical grounds— a perfectly valid ex-
pression of opinion, but not a scientific fact.
The proponents of constitutional amendments prohibiting abortion
by bestowing personhood on the fertilized egg from the moment of
conception would deny the rights of those whose opinion or definition,
als.. based upon moral, religious, and/or philosophical convictions
differs from their own. Because no definitive scientific statement on
this complex issue is possible, it seems to me inappropriate for the
government to pass legislation reflecting one narrow religious and/or
ethical position. Fr. Robert Drinan — D. Mass.— himself morally and
philosophically opposed to abortion, has reminded us that "* * * the
Constitution is made for people of fundamentally differing views. It
is seldom appropriate for one group within society to seek to insert
their moral benefits, however profoundly held, into a document de-
ried for people of fundamentally differing views."
Freedom of religion and separation of church and state are among
the most significant rights granted by the Constitution. It is import-
ant to note that a very large number of religious bodies in the United
States support the right of the individuals to make decisions con-
cerning abortions in accordance with their consciences and therefore
oppose efforts to deny abortion through constitutional amendment,
for example Division of Social Ministries — American Baptist
Churches; American Ethical Union; B'nai B'rith Women; Catholics
for a Free Choice; General Executive Board — Presbyterian Church
in the U.S. ; Board of Homeland Ministries — United Church of
Christ; National Council of Jewish Women; Union of American
Hebrew Congregations; Board of Church and Society — United Meth-
sl Church; and many others. In fact. 23 Protestant, Jewish, and
other religious groups are members of a national organization called
Religious Coalition for Abortion Rights — RCAR.
In addition to religious groups, various professional associations,
feminist organizations, groups concerned with civil liberties and
human rights, and the majority of the people in this country want
to preserve the option of legal abortion.
nk you very much.
Bath. 1 appreciate the contribution you have made.
:. of course, is whether one group who may feel very
•lv about the rightness or wrongness of abortions should impose
that particular standard on the others avIio may disagree. That is a
big step that I struggled with myself.
three of you, but particularly Mrs. Roudebush, came down
Fuly hard on the right of a woman. T have never been a woman, so
hard for anybody who hasn't, to know how a woman
looks at this problem. T don't suppose there has been any other mem-
191
ber of Congress try to insure women's rights more than I have, but
that still doesnt change what I said earlier about the inability to
perhaps fully appreciate it.
Do you feel that there should be limitations imposed on that right '.
Mrs. Roudebush. I believe that limitations were imposed by the
Supreme Court decision and those are the ones that I can accept. In
the first trimester the woman must have the consultation of the physi-
cian, and in the second trimester the State may regulate for maternal
health. In other words, it might be that a State would require her
after the first trimester to go into the hospital for the procedure. It
is also within the decision that after viability she does have abortion
rights if her life is imperiled. This is what leads me to say that I
consider the decision as a kind of compromise. It is not a wide open
option through the 9 months of pregnancy.
Senator Bath. May I ask you to be more definitive as far as your
own thinking is concerned. Would you be comfortable with a greater
restriction than the Supreme Court placed on abortion^ Suppose the
Missouri Legislature were to prohibit any abortion except where the
mothers life was involved during the third and/or second trimester ;
how would you feel about that ?
Mrs. Roudebush. I am not comfortable with that. I would be per-
fectly comfortable if the Missouri Legislature were to say. in the
first trimester it must be done by a doctor, in the second, after the
first trimester, the procedure must be done on an outpatient basis or
in a hospital or similar facility. I would not be comfortable with an
absolute prohibition of the procedure in the last trimester unless
there were exceptions that if the woman's life were in danger or her
health — good medical judgment decided that — she could have safe
legal abortion, medically safe abortion.
Senator Bath. You would be opposed to an outright prohibition?
Mrs. Roudebush. Even with those exceptions? Well, not with those
exceptions. If those exceptions were there then I would think that
the medical judgment could prevail for the woman who
Senator Bath. The health of the mother.
Mrs. Roudebush. The health and life of the mother, yes.
Senator Bath. What about just the life ?
Mrs. Roudebush. No, not just the life of the mother. I prefer
health because I know that it has been held to mean mental health
as well as phvsical and a judgment could be made that her mental
health would "be impaired in such a way by the continuation of the
pregnancy that abortion should be justified, even if it is very late m
the pregnancy when no woman would choose it unless she were
prettv desperate.
Senator Bath. One of the major concerns that I have here is com-
peting rights, the old cliche about the right that yon have to swing
vour fist until it comes into contact with somebody else's nose And.
Doctor, you talked about eggs and hens. What is an egg that has a
baby chicken ?
Dr. Shoup. It is a fertilized egg, no more, no less.
Senator Bath. It is not quite the same egg that you would scramble
for breakfast.
192
Dr. Shoup. Many eggs we scramble for breakfast are fertilized
: there happens to be a rooster in the barn yard they are fer-
tilized eggs.
Senator Hath. When we eat them we can't tell that. In a certain
point in the gestation period you can't.
The situation of the doctor in Boston, I guess it is, whatever hap-
• hat ! Is that case in the court?
Ms, U »wrt. Are you speaking about the Boston City Hospital case?
Senator Ron. Yes.
Ms. Lowrt. There are two different cases going on. One was the
an tiers, and one was a physician who, in 1972, prior to the U.S.
preme Court ruling, with the authorization of the hospital, per-
formed a hysterotomy, which is a minicesarean section on a patient
with medical disability who had been approved under the hospital's
therapeutic abortion system. The case attracted no attention whatso-
i until certain groups, who were strongly opposed to abortions
and who wished to create some publicity surrounding a research proj-
eet going on at the same time subpoena all the city hospital's rec-
ords and in the process of going through those records found this one
particular patient's record.
nator Bath. Is that Doctor Kenneth Edelin?
Ms. Lowkt. Right.
That file was pulled and singled out for special attention. In the
initial months surrounding the case in the press there was a great
deal of confusion as to what the nature of the case was. The attorneys
filed for a bill of particulars which was granted several months later.
The district attorney said in various press releases that Dr. Edelin
was going to be charged with smothering a baby boy. The court has
now granted a bill of particulars and admitted that the baby was
delivered dead, that the cause of death was anoxia, which means oxy-
gen supply being unavailable because of the placenta being detached.
( riven the fact the State did recognize this was a dead birth, the case
will certainly be dismissed.
But I think this kind of case sort of brings to a boil all of the
negative feelings — it is an ugly situation for everybody. I have been
fighting for abortion rights ever since I became aware of the problem,
but I personally feel very uncomfortable with the very clear reality
of the second trimester abortions, and I can understand the reserva-
tions and the very grave concern that people feel in this kind of a
ting. I think it must be particularly difficult for legislators who
not people who are involved day to day, with medicine and hos-
pitals and the realities of that, to try to puzzle this out. Ones' reac-
to seeing a second trimester fetus is usually to recoil. It is a
difficult thing, and I think that most of the focus, for this reason
of the antiabortion groups is to stress what a second trimester
lrtl like, with all of the gory pictures. You have probablv
gotten tons of them.
Bath. Without all the strategy business, it seems to me
en have rights, it would seem to me that it is not unreason-
able to suggest that unborn fetuses also have rights.
X)WRT. It is not unreasonable and I can respect people who
feel that. My problem is this: it is such a unique situation that it is
: to find a parallel that takes it out of an emotional
193
Senator Bath. It is relatively easy for me to sort out in my mind
the one extreme. The question is how you go. You may disagree with
that. Suppose this had been a live 24- week birth, and the mother
wanted to have an abortion; she didn't want the child the baby was
removed, and it was alive.
Ms. Lowry. My feeling is that if that had been a live birth that
there would have been an obligation, and is in fact under the law
an obligation, because an infant that is born is considered legally a
person — there is a clear obligation in my mind for medical personnel
to respond in the same way they would any other person.
Senator Bath. Does that same obligation apply to a baby, to a
fetus that is at the same age of development in the use of the saline
position ?
Ms. Lowry. Well, I will tell you why I don't think so, but this is
a very hard one.
The dilemma is the unique relationship between the fetus and the
woman. We have a traditional leaning in this country toward the
underdog and toward any innocent party — and clearly the fetus is an
innocent party. There is just no question about that. We also have a
lot of respect for individuals and their rights to be free of coercion
and pressures. The dilemma is this : Can we, much as we are con-
cerned about the fetus, set a precedent that says that one individual
may be forced, contrary to their will, for the best of reasons, maybe,
but still forced, to utilize their body, their blood, their oxygen, their
nutrition their calcium, to support the life system of another being,
person, whatever you want to say ?
Senator Bayh. This is not quite that simple. I mean, I understand
that strong feeling, but that runs into an equally strong legal prece-
dent that all of us as human beings, who are in command of our
mental capacities, have to be responsible for our own actions.
Ms. Lowry. We are responsible for our own actions, but, for ex-
ample, there are people who are using kidney machines and without
these machines they will die. It is possible and certainly has been
tried in primates to hook up to the urinary system of a healthy per-
son or primate and by recycling through the healthy individual you
can clean out the system of the ill person and keep them alive. I iden-
tify with the patient in a situation like that. I think the person has
a right to the health care and the machine, but I could not support
legislation which compelled, against his will, another individual to
lie down on that table and to act as the human kidney dialysis ma-
chine. I am not sure I can explain it, but I feel that that sets such a
dangerous precedent, no matter how much emotion one might feel for
the patient, no matter how much one might recognize the dilemma,
and I can see the room dividing with 50 percent going here and 50
percent going there.
Senator Bayh. May I suggest that I don't believe there is a direct
parallel because the person you would force to sit down with the di-
alysis machine had nothing to do with the creation of the kidney
machine; whereas the mother who becomes pregnant participated in
the action which resulted in her pregnancy.
Ms. Lowry. That is fair, because in challenging it he helps to sort
out one's feelings. I think a lot of people agree with you that the
circumstances are slightly different. But I have trouble equating sex-
194
u;ll activity with the final result of pregnancy. The person who is
willingly sexually active is not willing an abortion candidate no more
than the person who is willingly a smoker is willingly a cancer vic-
tim. 1 have a Massachusetts drivers license and I take my life in my
hands whenever 1 go out driving. But that doesn't mean, if an acci-
dent happens, that -well, as you say, it isn't simple. I think it would
too facile to say someone who willingly participates in sexual inter-
course willing accepted the pregnancy.
Senator Bayh. You are going to get yourself in some very hot
water because if that is true' of the mother, then it is not also true of
■I her. Where do von impose a responsibility of the father to care
for the children? I don't really think you want to get yourself in a
position where yon suggest two adults who participate in a sexual
activity don't hear responsibility for that very human, wholesome
activity.
Ms. Lowry. I think one can make out a case for responsibility. It
is interesting in terms of the law where the lines of responsibility
have been drawn, and they have been based on birth. A father in a
case where the couple is not married has not ever been held liable for
the <ost of abortion, for example. I think it is undefined and gray,
and because it is not simple we will continue to debate this and think
about it and shift hack and forth, but in a way it would seem to me
totally inappropriate for the Congress of this Nation to pass legisla-
tion which attempts to say that it is simple.
Senator Bath. I would like to hear the views of any of you who
• are to comment on one of the concerns that has been expressed by
folks on the other side. In all too many instances abortion has been
ted as sort of the in-thing. There has been a great pressure
and movement toward abortion without fully exploring and explain-
ing alternatives. That has been of particular concern to parents of
unwed daughters. Should we give more attention to this? What has
hern the practical experience?
Ms. Lowry. I would say in one sense they are right. I wouldn't
I think in any time of movement or change the pendulum
swings and there are good people and bad people on all fronts. There
are "crazies" on both sides. I think there are some people wTho have
been so wrapped up in making a political point, again on both sides,
that they have acted in a way which is not in the best interest of other
individuals who come across their path. I think that is the tragic
thing of this being a political football. As soon as we get it out of
the political arena I think that will happen less and less. Some groups
have been very responsible and good. I think that there are. some
groups that don't have such a good record: without naming names,
people who have :i vested political interest in pushing one way or the
other, or people who have a vested financial interest in pushing one
way oi- the other. Traditionally there were social workers who would
tell you there was nothing worse than al>ortions, not because of a
moral belief, hut because the adoption home where, they worked
needed revenue; and at the same time there were front groups for
•""line, vial abortion referrals. Hut I don't think that enacting legis-
lation of a rigid iiiul particular viewpoint is going to address that.
rder to !„• here this morning T had to forego an executive com-
mittee meet in- of the Massachusetts Planned Parenthood League.
195
Right now they are working on a statewide watts or 800 line, so they
can refer callers to every kind of social help, contraceptive care, psy-
chiatric counseling, adoption services, abortions services; and if all
of this political business was not going on we could be back home
working on setting up good systems, positive systems, that I think
would go a long way toward eliminating the kind of abuse that the
right-to-lifers are very wisely concerned about.
Mrs. Roudebush. Could I add something to that?
We are very attentive in our State to the counseling association
with abortion procedures in the clinics that are existing in the State.
I believe that options are discussed with any potential abortion pa-
tient. I know particularly about one clinic which gives the patient
the opportunity to explore all means of solving her pregnancy. I
would say that it is more likely that the other side is offering only
one way to go and I do believe that counseling should be an integral
part of a good abortion service.
Senator Bath. Well, I appreciate very much your taking your time
to help on our study, and I appreciate your contributions.
Thank you very much.
Our next witness will be Dr. Jane Furlong Cahill. member of
Catholics for a Free Choice, Georgia, to be introduced by Father
Joseph O'Rourke of New York.
STATEMENT OF DR. JANE FURLONG CAHILL, MEMBER OF
CATHOLICS FOR A FREE CHOICE, GEORGIA, ACCOMPANIED BY
FATHER JOSEPH O'ROURKE, NEW YORK CITY
Father O'Rourke. I am the Catholic coordinator of the Interfaith
Center for Corporate Responsibility of the National Council of
Churches, the national director of Catholics for a Free Choice. I am a
priest, a Roman Catholic priest recently dismissed from the society
of Jesuits for baptizing the child of a mother in Marlboro, Mass.,
who stood publically for the Supreme Court decision in favor of le-
galizing of abortions for reproductive freedom generally.
~ Senator Bath. Was that the child or the mother?
Father O'Rourke. The mother. The child was 3 months old.
Senator Bath. How old?
Father O'Rourke. Three months.
The refusal of Boston priests to baptize this child exhibited the
lengths that a minoritv faction in the Catholic church are ready to
go to defy individual rights and church community and to preserve
the present narrow-minded power against the common good in the
United States. This denial of religious liberty in the church. I sup-
pose, is to be deplored generally.
But it does place the hierarchy's good citizenship in question. 1 be-
lieve, insofar as mv right to minister the Catholic sacraments for
those who hold the reproductive freedom is threatened and this
mother's right to speak for reproductive freedom is also crushed and
discloses the commitment of the Cardinals to coerce conscience against
the laws of the land in good sense. And for me m my obit raises the
question of the whole social strategy of the hierarehial of the church.
The question of whether thev may be backing off from a commit-
ment of individual liberties of free information to equal medical and
196
sonal services to all, landing the all-Catholic identity on this anti-
abortion stand. If the church is sincerely against abortion, it seems to
me that it should, for example, reorient all its relief services to re-
spond to spontaneous abortion in the world by working on malnutri-
tion and poverty that is the root cause rather than spending so much
effort lobbving against the rights of American women.
So todav I stand against the Vatican, two Catholic churches, the
position of the Jesuits. John Courtney Mury, and Cardinal Gushing,
the former archbishop of Boston, and the present Supreme Court
decision that would say that abortion must remain a legal alternative.
I must say I delight in a sense of freedom in the Catholic com-
munity and the majority of people in the Catholic poor and in the
Catholic theological world that stand for leaving abortion a legal
alternative for their own religious liberty and especially for baptism
and everlasting life that speaks truth that frees
Senator Bath. Did I understand you to say that your position is
a majority position in the Catholic Church?
Father O'Roukke. That is my understanding.
Senator Bath. How does one reach that conclusion ?
Father O'Rotjrke. Well, there have been opinions, sir, that were
raised, that Catholics in the pews, about 88 percent of them hold
for abortions under some circumstances — the National Catholic Re-
porter on November 16, 1973. Certainly in the theological schools
which I am familiar with it is the position.
Senator Bath. Is that beyond the life-of-the-mother exception?
Father O'Roirke. Yes, it depends, of course, but I think it stands
that under some circumstances reproductive freedom is held.
Senator Bath. As a Catholic man, did I understand you also in-
clude Catholic priests in that category?
Father O'Rotjrke. Not Catholic laymen.
Senator Bath. A majority of them favoring?
Father O'Rotjrke. I would say theologians. Every American priest
T wouldn't speak for, but it is certainly an opinion held by some
parish priests in the United States; in fact, I would say a lot more
than is generally known precisely because of our own organization.
Many Catholics are afraid to join because of fear of excommunication
or suspensioTi or dismissal, as in my case.
Senator B.vYir. Well, I think it is a relative question, because we
riot here testifying the theological points of any religious group
involved in this issue, and there are many on both sides. But I think
ii goes to the depth of your feeling to' ask a question: What does
dismissal mean relative to you as a theologian or as a human being?
Father O'Rotjrke. Well, I am afraid it means that the sense of
religious liberty growing in the Catholic communitv is also being
I. and there is also a general attempt to crush the cries of
holic conscience enmeshed in serious moral issues.
snator Bath. What T meant. Father, as far as you and your
Maker or the hereafter, what does that mean?
Father O'Rotjrke, Not very much. I am pretty sure my everlasting
not m jeopardy. One might even raise a counterquestion here.
Bath. Perhaps we will go on to the next point here.
1 ather ( >'Rotjrke. I am still a priest, if that's what you are talking
■ it. and 1 do hope for [('administration of the Jesuit Order, par-
197
traditional church process, and I presently appeal to the sacred
ticularly since the method of dismissal was so much even against
congregation of Rome and have the support of my community in
that effort.
I would like to introduce Dr. Jane Furlong Cahill, member of
Catholic for a Free Choice, she has labored in ecumenical groups and
with many Catholics and other religiously concerned persons about
the serious moral issues of our time. She presently lectures in the
Center for Continuing Education at the University of Georgia.
Jane Furlong Cahill.
Dr. Cahill. I am here as the official representative and also a
national director of Catholics for a Free Choice.
I want to thank you and Senator Talmadge who were instrumental
in allowing me to testify, first of all. I find it is easier to get into
the U.S. Senate than into some chancery offices in the United States
where the bishops of the Catholic church preside.
I must apologize for not giving you copies of my testimony before-
hand. The reason is that I have been very busy directing a conference
on women and religion just completed last Sunday. It was the first
southern conference, funded by the National Endowment for the
Humanities, on the myths and realities of religious leadership. And
due to the illness of my parents and my daughter I could not get
the testimony to you beforehand, but I will see that you get copies
of it,
I am an official representative and a national director of Catholics
for a Free Choice who believe that it is an individual woman's right
to make decisions regarding abortion and contraception in accordance
with her conscience without fear of prosecution. We oppose any efforts
to deny this right of conscience through constitutional amendment
and/or Federal or State legislation. Any interference by the State
we believe is a gross and unscionable invasion of personal privacy
and a direct violation of the female person's human and civil rights
to responsibly control her own reproductive power.
To begin, I would like to say we are also a prolife group as I
believe everyone who has spoken here today is. Catholice for the right
to life or other right to life groups are not alone in this. But abortion
is not a black and white issue. There are many gray areas recognized
in Catholicism as well as other religious communities.
I wanted to give you some background of the Catholic church's
opposition to this, so if you will bear with me for a few minutes we
will establish the background so we may see the church's opposition
to abortion, sterilization, and contraception in its proper historical
text.
"In the tradition of modern Western civilization no two spheres
stand more sharply opposed than that of religion and that of sex,"
Robert Briffault wrote in an article on "Sex In Religion." "Yet."
he goes on, "a glance at the various religions of the world outside of
Christianity, and one or two closely allied systems, a survey of re-
ligious rites of lower phases of culture, shows that the antithesis
does not exist. Those religions and those rites, are on the contrary,
shot through and through with riotous sensuality: the manifestations
of the sex instinct instead of being accounted incompatible with
198
the religious spirit, arc associated with it in the closest manner; and
religion in those phases, is almost as much concerned with sex as with
ethics and theology." -"Sex and Civilization".
did the fear of sex and, therefore, the fear of woman, and
ibsequenl and almost universal exclusion from man's work,
i nd his religious rites come about in Christianity and especi-
ally in Roman Catholicism? We know from the evidence of compara-
tive religion that all religions began in order to serve the human need
for reassurance in a hostile world in which injury, disease, and the
arch enemy death were ever presenting a threat to human life.
All primitive religions had two practical functions, neither of
them the philosophical interpretations of existence, or of life, as
lav think of them. The primary function was to fill the need
of the individual and of the tribe for food, and to insure their con-
tinuance by fertility in the women, the crops, and the animals. Imi-
tative magico-religious rites, including the sexual act itself were thus
performed to that purpose — the gods being presumed to be sexual
beings also.
In this connection, woman, due to her menstrual cycle, was almost
universally linked with the periodicity of the Moon. The "Moon God"
was believed to be husband of every woman, the one who first of
all impregnated her. In view of woman's astonishing power to bleed
a month and live, not die; to give life — (and sometimes bring
forth death in the case of a stillborn child) — to nourish that new
ith food from her own breasts; woman Avas believed to be
of tnana, a god-like power for good or evil, which therefore
red her taboo or forbidden. "Woman, like all things possessed
of mana was simultaneously holy in so far as she was a power for
good, and unclean or taboo in so far as she was regarded as a power,
bly harmful to others.
She was most dangerous especially in those times when she was
womanlike, id est. during menstruation, pregnancy, and lacta-
:ill of which taboos are mentioned in the Hebrew Scriptures
or Old Testament— of. Rabbi Jacob Singer, Taboos in the Hebrew
Scripture.
.m almost all religions, including Judaism and Christianity,
some mythical account of the origins of human life in what
i Eliade- "Birth and Rebirth"— Thiers to as the "dream times"
or the longforgotten past — or as Genesis puts it "In the beginning
Through the ritual reenactment of these myths of the origin
of life early religions attempted to relive communally by imitative
religious rites, that thus initiate them into a life that is as Eliade
out. beyond the natural and so. what, was thought to be super-
natural. The account of the creation of human beings in Genesis
'< HI- is Mich :l mythical account of the origin of the first humans
of the fust or original sin.
In the natural order, of course, the real human mother begets
dd by natural birth from the womb. In the super natural order,
'•'he rebirth and the only significant birth according to these
complished by initiation rites, such as baptisms or
riginal sin. such as are found in both Judaism
hnstianity. Such initiations attempt to beget the adolescent
199
child — (most often the male child as in Judiasm, although in Christi-
anity, the female child as well) — or give birth anew by a kind of
role reversal from death to the old natural life with its mother love,
to a new and supernatural life with the gods or God. This new birth
or birth, of course, is usually accomplished by a male mother called
a priest or shaman, who thus by a reversal of roles attempts to be-
come a "mother"' and give "birth" again to the child.
The second function of primitive religion according to Briffault,
was to avoid the anger of the gods or God, by ascetic practices of
self-denial and funerary rites — (or rites of the dead) — whose spirits
were sometimes, like woman, viewed as dangerous to humans. With
the rise of patriarchy, or the rule of the father — which in almost all
primitive religions, follows the demise of matriarchy) — the original
and universally recognized right of the mother over her offspring was
played down to the advantage of the father. A tighter rein was
drawn on woman in civil law, and the fertility goddesses in religious
law, reducing them to second-class status in the state and religion,
though as an Assyriologist at the University of Pennsylvania pointed
out recently Goddesses die hard.
In the creation account in Genesis, Eve, called "the mother of all
the living" was depicted by the male author as being, incredibly, the
offspring of Adam — human physiology notwithstanding — through
the midwifery of God. As a result of the primordial transgression
following upon the creation of man and woman — despite the fact
that Genesis specifically blames and punished both — the Judeo-Chris-
tian traditions passed on the original sin of sexism — as Dr. Rosemary
Reuther and Dr. Mary Daly have both put it— or the philosophy of
the natural or divinely ordained supremacy of the male over the
female.
Woman became by divine right the property of man. She existed
solely for man's sexual pleasure, for procreation of man's child — as
Genesis 3 :16 itself takes note when it says, of the dangers of mother-
hood undestrainedly multiplied, "I will* greatly multiply thy sorrow
and thy conception, in soitoav shalt thou give birth to children; all
they longing shall be for thy husband, even though he shall lord it
over thee." Fear of and not a little primitive or sophisticated, jealous
of Avoman's maternal role led man to keep this property of his in the
ghetto called the home in her case, so as to keep her dangerous powers
as mother away from his work, and prevent her physical weakness be-
lieved due to menstruation, from contaminating it.
Thus the double standard of morality arose; a double standard im-
posed on the female which regarded her, not as the image of God
and therefore a person, as Genesis insists, but as primarily the image
of man, a mere reflection of his ego. and as a seducer of man, the
one on whom he chose to project the myth of feminine evil. Whereas
man, as seen by himself and male theologians, was a spiritual and
intelligent creature, woman, being primarly for sex was viewed as a
carnal and emotional creature; whereas he was active and inde-
pendent, she was passive and dependent on him her Lord. Whereas
his value transcended sexual caste and allowed him a full range oi
sexual freedom, her value was entirely based on her used or unused
status in the sexual realm.— Indeed the Catholic Code of Canon Law
200
still uses this approbrious term, "the use of woman" to describe the
. ial acl iii marriage.
With the suppression of the legal rights and liturgical rites of
woman and the female deites in the supernatural order, the second
function of primitive religions, that of appeasing and averting the
anger of the gods or God by asceticism and rites of the dead took
precedence over magico-religious rites, including ritual sexual inter-
course. By avoiding good things of which the gods might be jealous,
such as food, drink, and above all. sexual relations, in short, things
that were, like woman, taboo, our primitive forebears in the Semitic
tradition passed on to Judaism and subsequently to Christianity,
their more sophisticated heirs, a dubious heritage of which they
formed an often inexplicable part.
"Sexism", as Rosemary Radford Reuther put is, "That is, the op-
pression relationship of the man to the woman, is essentially social
projection of the self-alienation which transcends certain initial
biological differences into a power relationship. This relationship in
turn is totalized in social structures" — such as civil and canon laws
JFC — "and cultural modes that eliminate woman's autonomous per-
sonhood, to define her solely in terms of male needs and negations."
[Sexism and Theology of Liberation]
This resulted in the unfortunate and for woman, tragic, tradition
of Christianity and especially Roman Catholicism in the West so
that, as Briffault put it "no two spheres stand more sharply opposed
than that of religion and that of sex." The natural manifestations
sex, and especially of woman-sex, are in the R. Catholic tradition,
the type of sin. the head-fount of that evil and impurity, with which
the religious spirit cannot be brought into touch without defilement
and dissolution.
The theology of marriage as explained by male Christian theolo-
gians was really little more than a tribal view of marriage, in which
the acl of sexual union was viewed as the use of woman, with little
or no recognition of it as an act of love until the last decade of this
tury with the Second Council of the Vatican. This belief in the
myth of feminine evil did not. however, stem from the teaching of
is who Leonard Swidler pointed out a feminist in his
own time, but was a carryover from 'the sexual taboos common to all
primitive religions, including the Semitic, from which Judaism and
( 'hiistianity ultimately derive.
overwhelming fear of sex and therefore of woman as a temp-
. was heightened by the Roman Catholic Church's insistence on
clerical celibacy.
That, coupled with the fact that theologians insisted on doing her
thinking for her in view of her intellectual weakness, is most mani-
II intelligent people in the official or hierarchical church's in-
genl stand against artificial contraception, sterilization, and
Such a stand is designed to leave women at the mercy, not
I her biological makeup, but also at the mercy of a merciless
celibate hierarchy, who claimed the right to damn her eternally if she
I such methods.
hout medical control over the bodily power of reproduction,
p'.T' '' the "H'"'v oi a" irrational fertility which even the
HlWe '" ( ■ 16 recognized as a curse. The time of rational en-
201
soulment, or the time when the fetus becomes specifically human, has
been and still is a matter of debate in the Catholic tradition as is
evident from the attached list of authorities ranging from the first
century to the present day.
In the very first book of the Bible, the two-facedness of procrea-
tion as both a blessing from God and a curse from the same God is
very aptly described. Genesis 1:28 recounts the blessing of man and
woman by God who told them "to increase and multiply and fill the
earth and rule over it." The same book of Genesis — 3: 16 — later on
after the fall from God's favor indicates quite clearly that the bless-
ing of procreation is now because of its frequency and pain fulness
covered with a curse for the woman to whom God said, "I will
greatly multiply thy sorrow and thy conception; in sorrow thou shall
bring forth children.'" According to scripture itself then, childbear-
ing in itself a great blessing, is also because of the possible great
multiplicity of pregnancies a woman may undergo and because of
the painfullness associated with pregnancy and birth in many cases.
the curse of the woman. However, this text has largely been ignored
by celibate theologians in the Catholic Church, [of. My article "Con-
traception and Eve".]
The text of Exodus 21, 22 had a far more powerful influence on
both Jewish and Christian theologians, however. This passage dealt
with the abortion that is caused accidentally by a man who struck a
woman who was pregnant. In "The Septuaguint"— the Greek trans-
lation of the Hebrew text— the text prescribes the penalty of "life
for life" if the embryo is "formed." "Formed" here was taken to
mean by Christian theologians at any rate, what Aristotle meant by
"formed." For Aristotle a fetus becomes human 40 days after con-
ception if the fetus is male, and 80 davs after conception, if the
fetus is female. ["History of Animals," 7, 3.] A similar view seems
to underlv the old prescription regarding purification. 40 days being
required "for purification if the child was a boy. SO days if the child
was a girl. ["Contraception," John T. Noonan, p. 90.1
This theory of delayed hominization, or ensoulment with a rational
soul, regarding the fetus was held by some of the greatest theologians
in the Catholic Church and is still held by a goodly proportion ot
theologians today.
I myself consider abortion to be a serious moral problem and while
I am not for abortion across the board. I nonetheless believe there
are many serious reasons which could justify taking the life ot the
fetus. Such reasons, like Dr. Daniel Callahan, 1 would consider, ex-
treme poverty, mental illness, grave or crippling physical disease.
rape, incest, the possibilitv of a deformed fetus, grave risk to the
life of the mother. Another reason 1 did not give hut would like t<>
include now is the positive unwillingness of the woman to hear the
child. I can think of nothing more detrimental to a human baby
than to be born to a mother who hated its very existence.
The Supreme Court decision which interprets the law every liber-
ally is in my opinion a wise decision. When the woman feels justified
in conscience in having it, later abortions sometimes are both moral ly
and medicallv justified, and should also be allowed.
I believe though that the law should have a conscience clause which
would exempt medical and paramedical persons who have moral ob-
202
jectiona to abortion from taking part in such operations except when
the life of the woman is endangered.
Whether or not the Ictus is, in fact, a human person from the
moment of conception, or whether it becomes a human person some-
time afterward during the 9-month period of development is the
point ;it issue in the abortion dilmma. Bernard Haring, C.S.S.R., the
tholic moral theologians insists in "The Law of Christ",
p. 205; "And in fact, if we could assume that the Aristotalian opinion
were certain, we could not condemn abortion committed before the
iul,, the spiritual soul as a crime of murder against a fully
human life." Richard A. McCormick, S. J., in an article in America,
dune 19, L965, on abortion says: "The theory of retarded or delayed
animation is unquestionably a tenable ami respectable theory. It is
still preferred by a notable number of philosophers and theologians.
The church has very wisely uever decided the matter definitly; in-
deed, it is perhaps questionable if this is within her competence.
It Minis to me it is certainly not within the church's competence
to pronounce one way or the other on a matter that requires an inter-
pretation of biological fact- on which from ancient times to the
present, good women and men of all faiths have disagreed. This being
the it even if it were not — that a doubt of fact regarding the
human personhood of the fetus exists, the same rules of morality
must be applied here as in all other cases.
The most fundamental rule of morality is, as Jesus explained to
the lawyer, the love of God above all else and the love of our neigh-
bor whom we are commanded to love as we love ourselves. These two
commandments are the essence of the New Law of Christ, as St.
Thomas says, as well as the foundation and first general principles
of the natural law. [Summa Theologies I-II, Q. 100. B.J We are
bound, after God, to love ourselves, and then, our neighbors, not
equally with ourselves, but in a manner patterned on true love of self.
We should love especially those nearest to us in the natural order, our
spouses, children, parents, el cetera. The secondary principles of the
natural law such as the Ten Commandments are simply explications
of these primary rules.
The fifth commandment has always been interpreted to mean not
>lute prohibition of killing a person, but the unjustified taking of
I it her Haring in the same work mentioned earlier explains it
way: "The killing of a man. is not an unconditional evil action
because the bodily life of one's neighbor is not a value which must
be preserved under all circumstances. Only the unjustified attack on
the life of one's neighbor is always evil."
Christian theologians have always permitted the just war, and in
they have hung medals on those who have participated in war,
ough war certainly results in the foreseen killing and horrible
tuning <»t thousands, even hundreds of thousands of innocent
him utside the womb, including infants, children, women,
and me,, ,,! all ages. I might point out the American Catholic hier-
chy never raised a voice -with the exception of perhaps one or two,
"bout the immorality of the war in Vietnam.
lead armies to war. Hierarchies have condoned
hundreds of yvars, as the American hierarchy did the war in Vietnam.
All this wholesale slaughter of the innocent as well as the enemv, is
203
and was justified in Catholic theology on the basis of the principle
of the double effect. Despite the most atrocious method of killing
such as bombs, mapalrn, flame-throwers, antipersonnel weapons, the
American Catholic hierarchy never have raised their voice against
the immorality of such weapons. Thus when a pilot dropped a bomb,
knowing that hundreds of thousands of innocent people will be killed
with the enemy, theologians said he must simply intend the death of
the enemy, not the death of the innocent, even though he knows for
certain that many, many innocent people will die as a direct result of
his actions. The simple fact of the matter is, if the bomber pilot did
not intend but certainly did not rejoice in, both the death of the
innocent and the enemy he would not release the bomb from the
hatch.
In short, the right to life, even of the innocent, while it is the most
basic right is not an unconditional right to be preserved at all costs.
It can only be taken, justly but regrettably, under certain conditions;
but it most certainly can be and has been taken, and the taking has
been sanctioned and even lauded by Catholic theologians and the
hierarchy from the earliest days of Christianity.
Catholic theologians can and do justify the taking of the life, or
lives, of the innocent, on the basis of the principle of the double
effect, in order to preserve some other human rights or values of equal
or greater worth. Such values can be any of the following: for
example, according to Catholic moral theology — and this is to be
found in most theology texts — the preservation of freedom, in self
defense in order to preserve your own life or another persons life;
in defense of your personal liberty; in defense of your bodilv in-
tegritv; for example, a woman as 1 pointed out in a televised debate
used to teach students in religion at Villanova University, with the
editor of the Catholic Standard and Times in Philadelphia— if a
woman was about to be raped and decided she would rather go over
a cliff than be raped— that justified her committing suicide.
So a person could, in order to preserve her/his bodily integrity.
or even her/his own personal property, that is material goods, deemed
necessarv to life such as food, or even a horse— if that horse or food
was essential to him/her or the family's well-being could take the
life of the thief if necessary in order to keep the food and keep the
horse which were so essential to life.
In view of these exceptions to the command, "Thou shall not kill ,
it seems to me for the reasons given in my testimony before the Penn-
sylvania board in Harrisburg, a woman may be justified m seeking
an abortion from a phvsician.
Brieflv, the reasons*! hold this are the following. The purposes of
marriage and the marital act are two fold, the fostering of mutual
love between the spouses and the procreation and education of any
children who may issue from the marriage. Of course procreation
only binds when 'it i^ possible and reasonable. Procreation involves
not only the physical begetting of a child, but also seeing that it is
cared for and educated in truly humane fashion. It entails the bring-
ing of one's children to a state of human perfection. However,
through contraceptive failure— whether of rhythm or other artificial
contraception— at this point Catholic women are most of all on the
204
firing line. We have five great daughters who are the product of
rhythm, and very much loved children, whom sometimes we refer to
"Rhythmaires." Impregnation can occur without its being in-
tended. Should impregnation occur to a woman who is so extremely
poor, that neither she nor her husband, nor their existing children,
ran l)i' supported in truly human fashion, the woman may be obliged
justice to herself, to her husband and to the potential rationality
of the fetus to seek an abortion. Here, albeit innocently, the preg-
nancy constitutes a grave internal threat to the very existence of the
family. That is, the common good of the family requires this tragic
but necessary action.
Mental illness, severe enough to incapacitate the woman for human
motherhood would also be in my judgment serious reason for term-
ination of pregnancy. Every fetus by reason of its potential rational-
ity is in justice entitled to a mother who is rational. Furthermore, the
loss of tlie ability to use the highest powers she has, the reason and
will, is a fearful enough loss in itself and pregnancy in addition to
such a state constitutes a grave and often unbearable threat to the
woman's total well-being.
Crippling physical disease would be sufficient reason for termina-
tion of pregnancy because the disease itself constitutes a grave in-
ternal threat to her health and life, to which the presence of the
fetus add- further aggravation.
In the case of rape and incest, the resulting pregnancy has been
inflicted unjustly and violently against the woman's or child's will by
a violation of her right to physical integrity. She, therefore, has the
right to remove by an abortion the result of this assault, out of love
for herself.
The possibility of severe deformity in the fetus is sufficient reason
to warrant an abortion also. Nature itself tends, as St. Thomas
pointed out. bodily perfection and of itself, not by direct Divine
intervention aborts in almost one-third of all pregnancies where the
fetus is defective. Here we would be imitating the unconscious intel-
nce of the natural processes, consciously. As the late Dr. Joseph
'he discoverer of the measles vaccine, a great pediatrician
from Philadelphia, pointed out, many cases of monogolism with
its severe mental retardation, and Tay-Sachs disease with its men-
tal retardation can already be detected early in pregnancy by
amniocentesis.
To -inn up. we musl say the pregnant woman is first of all a human
being, herself, which was a doubtful condition in Christian theology
-plained by celibate male theologians, with her own set of rights
flowing from her own human nature. She doesn't lose her human
t- by becoming pregnant. She should be regarded as the bearer
(,r another as yel not fully human life, in the early months of preg-
nancy. A- with every other human being, there "are certain rights
of which -he is possessed and which she may defend out of charity
and m justice to herself. Such rights are the" right to life; to health,
whether physical or mental ; to liberty, whether spiritual or phvsical;
to physical integrity; to those goods which are deemed essential to
life. II a woman ha- additional obligations to a husband and exist-
ing children -he may be strictly obliged in justice to seek an abor-
205
tion in order to safeguard not only her life but also the well-being
of her family, no matter how repugnant and heart rending this
decision may be.
I, as an individual and as the representative of the Board of
Directors for Catholics for a Free Choice, a national organization
of Catholics, am dedicated to the principle that women have the
right and duty to follow their conscience in abortion decisions, and
that the law has a corresponding right and duty to mala' it possible
for them to implement their choices under medically safe condition-.
In this respect we are wholeheartedly in favor of the Supreme Court
decision and commend the Justices for their wisdom.
However, I would hasten to add that when abortions are per-
formed, they should be followed by contraceptive counselif
to provent if at all possible, the need for future abortions.
We consider abortion to be a serious moral problem and while
we are not for abortion across the board, we nonetheless believe
there are many serious reasons that could justify taking the life
of the fetus. Such reasons we would consider, extreme poverty, men-
tal illness, grave or crippling physical disease, rape, incest, the pos-
sibility of a deformed fetus, grave risk to the life of the mother.
Another reason would be the positive unwillingness of the woman to
carry the pregnancy to term, for I can think of nothing more detri-
mental to a human baby than to be born to a mother who hated its
very existence.
Catholic women as well as non-Catholic women are driven to abor-
tion, which is often their only recourse, as a last resort when contra-
ception is denied them or fails to work effectively, as in the case of
rhythm, especially.
Our hierarchy and priests and laity have an obligation in charity
and justice to at least talk to these troubled women as sisters. With
very rare and brave exceptions, like Father Joe O'Rourke, they
haven't been doing it. It would also help matters considerably if
Catholics would stop the un-Christian name calling and labeling
everyone who disagrees with them as murderers and abortionists
and listen to the other side for a change. Right and reason have not
always been on the Catholic side, as witness the ongoing contracep-
tion debate in the church. As the National Catholic Reporter stated
on November 16, 1973, 88 percent of all Roman Catholics favor abor-
tion when there is a danger to the mother's life or health. 75 percent
in case of rape, and 77 percent in case of defective fetus.
So you see that our bishops are not the apolitical creatures they
present themselves as being. Anyone in Congress or a State legisla-
ture is always very much aware of the political clout of the Roman
Catholic hierarchy in which they are using money which is primarily
donated by Catholic women to destroy the rights of Catholic women
and other women here and elsewhere.
I thank you very much.
Senator Bayii. Thank you. Dr. Cahill.
T hope you will forgive me if I don't take the time to resume this
discussion' further. T appreciate the fact that you have testified.
We will recess these hearing.- now pending the call of the Chair
for future hearings.
206
[Whereupon al L2:45 p.m. the hearings recessed, subject to call
by the Chair.]
' [Material for the record follows:]
[MORI of Db. Jane Fublong-Cahill, Ph.D., Doctor of Religion, National
H,i:m roB of Catholics fob a Fbee Choice
l MoNY AMi T VI BOD1 I NON OF DB. JANE CAHIIX, BY REV. JOSEPH O'ROURKE
Mn name la Father Joseph O'Rouke, Catholic Coordinator of the Interfaith
a Free Choice I am a priest recently dismissed from the Society of Jesus for
■ Free Choice I am a priest recently dismissed fro mthe Society of Jesus for
baptizing a child of a mother who stood publicly for the Supreme Court de-
cision and for reproductive freedom. t
The refusal of Boston priests to baptize this child, Nathaniel Ryan Mor-
reale shows the lengths a minority faction in the Catholic Church are willing
0 to deny individual rights and community and church fellowship in order
rve its power against the common good. This denial of religious
liberty Is to be deplored in the church and in our society, and I suppose, places
our bierarchys' good citizenship in question. As my right to minister the
Catholic sacraments for those who hold for reproductive freedom is threat-
1 by my dismissal, so also is disclosed the commitment of American Cardi-
nals to coerce conscience against the laws of the land and good sense. These
further raise the question of the whole social strategy of the Catholic
hierarchy, for they indicate a hacking off from a commitment to individual
liberty, free information and choice, equal medical and social services to all,
placing the whole Catholic identity on a myopic anti-abortion stand; and
this when 88$ of the Catholics in the pew favor the choice of abortion under
some circumstances.
If the Church was to stand sincerely against abortion, it would re-orient
- .rial and relief services to stop the 100 spontaneous abortions for every
200 births in the Third World by attacking the malnutrition, poverty and
medical ignorance that is the cause of this hidden plague, rather than lobbying
against the rights of American women.
nd here again for the religious liberty of the Second Vatican Council,
for the position of reproductive freedom of .1. C. Murray and Cardinal dish-
ing, for the Supreme Court decision. I delight in the majority position in the
Catholic pew and the American Theological Catholic world that says that
abortion must remain a legal alternative. And 1 re-affirm the religious liberty
of Catholic women and the right to baptism and everlasting life in Christ
of those families thai speak the truth that frees.
Senator P.ayh and members of the Subcommittee, I respectfully introduce
I»r .lane Furlong-Cahill.
Mr Chairman and Members of the Committee: As a National Director of
Catholics for a Free Choice, we welcome this opportunity to testify here
today before this committee as to the majority of Cathoilcs support for Free
Choice which is indicated in recent polls such as the NCR Report on data
collected by the National Opinion Research Centers' General Social Survey,
Which we respectfully submit to this committee. (See attached.)
"In the tradition of modern Western civilization no two spheres stand more
sharply opposed than that of religion and that of sex" Robert Briffault wrote
in an article on "Sex iii Religion". "Yet," he goes on, "a glance at the various
religions of the world outside of Christianity, and one or two closely allied
urvey of religious rites of lower phases of culture, shows that
the antithesis floes not exist. Those religions and those rites, are on the con-
trary, --hot through and through with riotous sensuality; the manifestations
of the sex instinct instead of being accounted incompatible with the religious
OCiated with it in the closest manner; and the religions in those
almosl as much concerned with sex as with ethics and theology."
ation Havelock Ellis, Ed. 1929.
did the fear of m.\ and. therefore, the fear of woman, and her sub-
llmost universal exclusion from "man's work", "his" wars and
rites come about in Christianity and especially in Roman
Catholicism? We know from the evidence of comparative religion that all
207
religions began in order to serve the human need for reassurance In a hos-
tile world in which injury, disease and the archenemy death, pre-
senting a threat to human life.
All primitive religions had two practical functions, neither of them the
philosophical interpretations of existence or of life, as we today think of
them. The primary function was to till the need of the individual and of
the tribe for food, and to insure their continuance by fertility in the woman,
the corps and the animals. Imitative magico-religious rites, including tin-
sexual act itself were thus performed to that purpose.
In this connection, woman, due to her menstrual cycle, was almost uni-
versally linked with t lie periodicity of the moon. The moon-god was believed
to be husband to every woman, the one who first of all impregnated her. In
view of woman's astonishing power to bleed once a month and live, ool die;
to give life (and sometimes bring forth death in the case of a stillborn
child); to nourish that new life with food from her own breasts;- woman
was consequently believed to be possessed of mana, a godlike power for |
or evil, which therefore rendered her taboo or forbidden, especially in I
times when she was most womanlike, i.e., during menstruation, pregnancy
and lactation, all of which taboos are mentioned in the Hebrew Scriptures,
(cf. Rabbi Jacob Singer, Taboos in the Hebrew Scriptures). Again, almost
all religions (including Judaism and Christianity) have some mythical ac-
count of the origins of human life in what Mircea Eliade, Birth and Rebirth,
refers to as the "dream times" or the long-forgotten past -or. as the Genesis
puts it "In the beginning . . ." Through these myths of the origins of life
they attempt to re-live communally by imitative religious rites, that thus
initiate them into a life that is. as Ediade points out — beyond the natural
and so what was thought to lie super-natural, such as the account of the
creation of human beings in Genesis L-III.
In the natural order, of course, the real human mother begats her child
by natural birth from the womb. In the 'super-natural" order, however, the
"re-birth" (and the only significant birth i is accomplished by initiation rites.
such as baptisms or washings, from sin, such as are found in both .ludiasm
and Christianity. Such initiations attempt to beget the adolescent child (most
often, the male-child, although in Christianity, the female child as well), <>r
"give birth anew" by a kind of "role reversal" from the "death" to the old
natural life with its mother love, to a "new" and "supernatural" life with
the gods or God. This "new birth" or rebirth, of course, is usually accomp-
lished by a male-mother called a priest or shaman.
The second function of primitive religion according to Briffault. v
avoid the anger of the gods or God, by ascetic practices of self-denial and
funerary rites or rites of the dead, whose spirits were sometimes, like woman,
viewed as dangerous to humans. With the rise of patriarchy, or the ride of
the father, (which in almost all primitive religions, follows the demist
matriarchy), the original and universally recognized right of the mother over
her offspring was played down to the advantage of the father. A tighter rein
was drawn on woman and the fertility goddesses in civil and religious law,
reducing them to second-class status in the state and religion, though as
University of Penna. Assyriologist pointed out, "goddesses die hard."
As in the creation account in Genesis. Eve. called "the mother of all the
living" was depicted by the male author as being incredibly, the "offspring"
of Adam, human physiology not withstanding, through the midwifery of
As a result of the "primordial transgression" following upon the creation "f
man and woman, despite the fact that Genesis specifically blames and punishes
both the woman and the man. the Judaeo-Christian tradition passed "ii the
"Original Sin of Sexism" (as Dr. Rosemary Ruether and Dr. Mary Daly have
both put it), or the philosophy of the "natural" or "divinely ordained su-
premacy" of the male over the female.
Woman became by "divine right" the property of man — she existed so solely
for man's sexual pleasure, for procreation of "man's" child—as G<
16 itself takes note when it says, of the dangers of repeated pregnant
"I will greatly multiply thy sorrow and thy conception, in sorrow Shalt thou
give birth to children ; all thy longing shall be for thy husband, even though
he shall lord it over thee." Fear and jealousy of woman's maternal role led
man to keep this "property" of his in the ghetto called the ho
keep her dangerous powers as mother away from "his" work, and prevent
208
her physical •weakness" believed due to menstruation from contaminating it.
Thus the double standard of morality arose; a double standard imposed on
females uhnh regarded her nut as the image of God and therefore a person
hut as primarily the image of man, a mere reflection of
bis ego the one on whom he chose to project the myth of feminine evil by
seduction Whereas man as seen by male theologians was a spiritual and
Intelligent creature, woman, being primarily for sex, was viewed as a carnal
and emotional creature. Whereas he was active and independent, she was
passive and dependent on him, her Lord. Whereas his value transcended
al caste and allowed him a full range of sexual freedom, her value was
entirely based on her •'used'' or ••unused" status in the sexual realm. (Indeed
the Code of Canon Law still uses this opprobious term, "the use of woman",
to describe the sexual act. i
With the suppression of the legal rights of woman and the rites of the
female deities in the supernatural order, the second function of primitive
religions, that of appearing and averting the anger of the gods or God by
asceticism and rites of the dead, took precedence over the Magico-religious
rites, which included ritual sexual intercourse. By avoiding good things of
which the gods might be jealous, such as food, drink, and above all, sexual
relations, in short, things that were, like woman, taboo, our primitive for-
bearers in the Semitic tradition passed on to Judiasm and subsequently to
Christianity, their more sophisticated heirs, a dubious heritage of which they
formed an often inexplicable part, (cf, Rabbi Singer, Taboos in the Hcbrciv
Scriptures.) "Sexism", as Rosemary Radford Ruether puts it, "that is, the
oppressive relationship of the man to the woman, is essentially social pro-
jection of the self-alienation which transcends certain initial biological dif-
ferences into a power relationship. This relationship in turn is totalized in
1 1 structures (such as civil and canon laws) and cultural modes that
eliminate woman's autonomous personhood, to define her solely in terms of
male needs and negations." Rosemary Radford Reuther, Sexism and Theology
of Liberation, Christian Century Magazine, December 12, 1973.
This resulted in the unfortunate and for woman, tragic, tradition of Chris-
tianity and especially Roman Catholicism in the West that, as Briffault put
it "no two spheres stand more sharply opposed than that of religion and that
of sex." The natural manifestations of sex, and especially of woman-sex, are
in the Roman Catholic tradition, the type of sin of which "the head-fount
of that evil and Impurity, with which the religious spirit cannot be brought
into touch without defilement and dissolution."
The theology of marriage as explained by male Christian theologians was
really little more than a tribal view of marriage, in which the act of sexual
union was viewed as the "use" of woman, with little or no recognition of it as
an act of love until the last decade of this century with the Second Council
of the Vatican. This belief in the myth of feminine evil did not, however, stem
from the teaching of Jesus who was. as Dr. Leonard Swidler pointed out, a
feminist in his own time, but was a carry-over from the sexual taboos com-
mon to all primitive religions including the Semitic from which Judaism and
Christianity ultimately derive, cf Jesus teas a Feminist.
This overwhelming fear of sex and therefore of woman as a temptress, was
heightened by the Church's insistence of clerical celibacy. That, coupled with
the fact that theologians insisted on doing her thinking for her (woman) in
view of her "intellectual weakness", is most manifest to all intelligent people
in the official or hierarchical Church's intransigent stand against artificial
traception, sterilization, and abortion. Such a stand is designed to leave
u " ;" the mercy, not only of her biological makeup, bid also at the mercy
i merciless celibate hierarchy, who claimed the right to damn her eternally
USed such methods.
With, ml medical control over the bodily power of reproduction, woman is
bft at the mercy of an irrational fertility which even the Bible in Genesis 3,
Knized as a curse. The time of rational ensoulment or the time when
becomes specifically human has been and still is a matter of debate
Catholic tradition as is evident from the following list of authorities
ranging from the first century to the present (lay.
gory MY. in his Bull Sedes \)><>*tniic<i in 1591, revoked the puni-
eglslation ol Pope Sixtus V saying, "where no homicide or no animated
209
fetus is involved," the law ought "not to punish more strictly than the
sacred canons or civil legislation does."
The Roman Ritual from 1617 to L625 prescribed baptism be administered
in danger of death only if either the head or some limbs of the fetus a)
and only if this limb gives some sign of life, only after "quickening" (Homini-
zation). Unorganized fetuses are not to be baptized.
St. Alphonsus IAgouri 1696-1787, a Doctor of the Church, Insisted that the
fetus is "certainly not animated before it is formed." Moral Theology •'>. Trad
2.
Sacred Congregation of studies in Rome offered Thomistic theses as guide-
lines to Catholic seminaries and universities. The loth thesis states that the
human soul, which is created by God, "may be infused into a subject thai
sufficiently disposed."
H. M. Hering, O.P. 1951, "I)e Tempore Animationis Foetus Humani" An-
gelicum, 28, 1951, 18-29 says the theory of delayed animation or bominizal
"counts strong defenders, especially among the philosophers who are wont to
investigate the matter more profoundly than the moralists and the canonists."
For the latter part of the 19th century he mentioned as upholders of this
theory, Liberatore, Zigliara, Cornoldi, Lorenselli, Sanseverino and di Maria.
More recent authors mentioned were. Cardinal Mercier. V. Reiner, A. D.
Sertillanges, D. Prummer, A. Farges-d, Barbedette. A. Vermeersch, B. Merkel-
bach, A. Pirotta, C. Carbone, F. X. Macquart, R. Jolivet, A. Lanza, E. Mes
senger, R. Lacroix and M. Barbado."
Others still more contemporary who are today questioning the one-dimen-
sional nature of Catholic theology regarding abortion are: Rev. Bernard
Haring, Hans Kung, Teilhard de Chardin. Giles Milhaven. S.J., Joseph Don-
ceel, S.J., Robert .Springer, Dr. Daniel Callahan. {Abortion: Lair, Choice and
Morality, who testified before the N.Y. State Abortion commission for a re-
form of the law). Cornelius Vander Poel, Charles Curran, Dr. Mary Daly,
Dr. Rosemary Radford Ruether, Dr. Elizabeth Farians and myself.
In the very first book of the Bible, the two-facedness of procreation as both
a blessing from God and a curse from the same God is very aptly described.
Genesis 1,28 recounts the blessing of man and woman by God who told them
"to increase and multiply and fill the earth and rule over it." The same book
of Genesis (3, 16) later on after the "Fall" from Cod's favor indicates quite
clearly that the blessing of procreation is now because of its frequency and
painfulness covered with a curse for the woman to whom God said. "/ will
greatly multiply thy sorrow and thy conception; in sorrow thou shall bring
forth children." According to Scripture itself then, childbearing, in itself a
great blessing, is also because of the possible multiplicity of pregnancies a
woman may undergo and because of the painfullness associated with preg-
nancy and birth in many cases, the curse of the woman. However, this text
has largely been ignored by celibate theologians in the Catholic Church, cf
Contraception and Eve, Dr. Jane Cahill, New Blackfriars Magazine, London,
June 1966.
The text of Exodus 21. 1*1* had a far more powerful influence on both Jewish
and Christian theologians, however. This passage dealt with the abortion that
is caused accidentally by a man who struck a woman who was pregnant. In
The Septuaguint (the Greek translation of the Hebrew tost) the text itself
prescribes the penalty of "life for life" if the embryo is "formed". (■Formed"
here was taken to mean, by Christian theologians at any rate, what Aristotle
meant by "formed". According to Aristotle, a fetus becomes human forty days
after conception if the fetus is male, and eighty days after conception if the
fetus is female. (History of Animals. 7. 'A. ) A similar view seems to underly
the old prescription regarding purification, forty days being required for
purification if the child was a boy. eighty days if the child was a girl. {Contra-
ception. John T. Noonan, 1'. 90). This theory of delayed hoininization. or
ensoulment with a rational soul, regarding the fetus was held by some of the
greatest theologians in the Catholic Church and is still held by a goodly
proportion of theologians today. Among those who held this theory \\ .
St. Jerome, the translator of the Bible (Vulgate), who said in bis Epistles
121, ',. that abortion is not homocide until the elements of the fetus
their appearance and members".
St. Augustine, On Exodus, 21, 80, a commentary, says if the embr
"unformed", the law does not provide that the act (of abortion) pertains to
homocide.
210
m Intelm a medieval theologian, wrote that It is -inadmissible that the
infant snoind receive a rational soul from the moment of conception
" v , \lnam. Bishop of Paris, *v,„r Books of Sentences , 2d- 18, 8., The
son! a created and Infused after the body has already been formed.
i V m >«*. *»»"<"< r„„r,-« Gentiles 2, 89 held that the .rational
soul was created by God only after the embryo passed through a kind of vege
t'lthe and sentient stage In its development.
,,„,„/ the Council of Trent 1566 clearly held delayed rational en-
soulmentThen it said -since in the natural order no body can be informed
1, 1 man soul except after the prescribed space of time." It was here
discussing the extra-ordinary conception of Jesus whose soul was joined to
the body at conception, unlike all others. , K „*,,„.
This is Drecisely the point at issue in the abortion dilemma, i.e., whether
or not the fetus is in fact, a human person from the moment of conception or
whether it becomes a human person sometime afterward during the nine-
month period of development. Bernard Haring, C.S.S.R., the dean of Catholic
mural theologians, insists in The Law of Christ, page 205, In fact, if we
could assume thai the Aristotolian opinion were certain, we could not con-
demn abortion committed before the infusion of the spiritual soul as a crime
Of murder againsl a fully human life." Richard A. McCormick, S.J., in an
article in America. June 19, 1965 on Abortion says. "The theory of retarded
or delaved animation is unquestionably a tenable and respectable theory. It is
still preferred by a notable number of philosophers and theologians. The
Church has very wisely never decided the matter definitively; indeed, it is
perhaps questionable if this is within her competence."
It seems to me it is certainly not within the Church's competence to pro-
nounce one way or the other on a matter that requires an interpretation of
biological facts on which from ancient times to the present, good women and
men of all faiths have disagreed. This being the case (but even if it were not)
that a doubt of fait regarding the human personhood of the fetus exists,
the same rules of morality must be applied here as in all other cases.
The most fundamental rules underlying all morality as Jesus explained are
the love of Cod above all else and the love of our neighbor whom we are
commanded to love as we love ourselves. These two commandments are the
ace of the New Law of Christ, as St. Thomas says, as well as the founda-
tion and first general principles of the natural law. (Summa Theologica I. II,
Q 109). We are bound, after Cod. to love ourselves and love our neighbors,
not equally with ourselves, but in a manner patterned on true love of self.
Mil ,Q. 44, a. 7. We should love ('specially those nearest to us in the natural
order, our spouses, children, parents, etc. The secondary principles of the
natural law such as the Ten Commandments are simply explieitations of these
primary rules.
The Fifth commandment. "Thou shalt not kill" has always been interpreted
by Jewish and Christian moralists to mean, not an absolute prohibition of
killing a person, but the unjustified taking of life. Father Haring in the same
work mentioned earlier (Vol. T, P. 288) explains it this way. "Killing of a
man. is not an unconditional evil action, because the oodihi life of one's
neighbor is nut a value which must he preserved muter nil circumstances. Only
tlie unjustified attack on the life of one's neighbor is always evil." The Law
>>f Christ.
Christian theologians have always permitted the so-called "just war", ev^n
though it certainly results in the foreseen killing and maiming of thousands,
even hundreds of thousands of innocent human lives, including infants, chil-
dren, women and men. Popes have led armies to war. hierachys have con-
•d hundreds of wars, as did the American Catholic hierarchy condone the
war in Vietnam. All this wholesale slaughter of the innocent as well as the
"enemy" is and was justified on the basis of the principle of the double effect.
The most atrocious methods of killing, such as bombs, napalm, flame-throwers,
of both the "enemy" and the innocent, lie would not oven release the bomb
i Bite, knowing full well that hundreds of innocent people will be killed
along with the "enemy" he must intend only the death of the "enemy" not
'he death .if the innocent, even though he knows for certain that many inno-
cent people will die as the direct result of his action. But the simple fact of
'he matter Is, that if he did not intend, but certainly not rejoice in. the death
of both the "enemy" and the innocent, he would not ever release the bomb
211
from its hatch. In short, the right to life, even of the Innocent, while it is the
most basic right is not an unconditional right to be preserved at all
It can only be taken, justly but regrettably, under certain conditions; bnl it
most certainly can be and has been taken and the taking lias been sanctioned
by Catholic theologians and the hierarchy from the earliest days of Chris-
tianity.
Theologians can and do justify the taking of life (or lives) of a fully con-
scious human being (or beings) on the basis of the principle of the double
effect, in order to preserve some other human rights or values. Such values
can be any of the following :
1. The preservation of freedom, whether physical or spiritual, as in a
"just war".
2. The defense of self or another person in order to preserve one's own or
another's life, personal liberty, bodily integrity, or property, i.e., material
goods deemed essential to life, such as food, a horse, etc.
In view of these exceptions to the command "Thou shalt not kill", it seems
to me, a woman may be justified in seeking an abortion from a physician.
Correspondingly, the physician may be justified in performing the abortion,
however distasteful they may both find the task. Briefly, the reasons I hold
this are the following. The purposes of marriage and the marital act are
two-fold, the fostering of mutual love between the spouses and the procreation
and education of any children who may issue from the marriage. The latter
duty of course only binds when procreation is possible and reasonable. Pro-
creation involves not merely the physical begetting of the child, hut also
seeing that it is cared for and educated in truly human fashion. In short, it
entails the bringing of one's children to the human perfection of knowledge
and virtue according to St. Thomas. Many times, however, through contra-
ceptive failure (whether of rhythm or other artificial contraceptives, cf my
article Contraception and Eve, impregnation can occur without its being in-
tended, or in the case of rape by forceful violation of bodily integrity.
Should impregnation occur to a woman who is so extremely poor that neither
she nor her husband, nor their existing children, if any, can be supported in
human fashion, the woman may be obliged in justice to herself, her husband
and her children, and out of justice to the potential rationality of the fetus,
to seek an abortion. Here, albeit "innocently" the pregnancy constitutes a
grave internal threat to the very existence of the family. Thus the common
good of the family requires this tragic but necessary action. Mental illness.
severe enough to incapacitate the woman for human motherhood would also
be, in my judgment, serious reason for termination of pregnancy. Every fetns
by reason of its potential rationality is in justice entitled to a mother who
is herself rational. Furthermore, the loss of one's ability to use the highest
powers one has, the reason and will, is a fearful enough loss in itself and
pregnancy in addition to such a state constitutes a grave and often unbear-
able threat to the woman's total well-being.
Crippling physical disease would be sufficient reason for termination of
pregnancy because the disease itself constitutes a grave enough internal
threat to her health and life, to which the mere presence of the fetns add
another "innocent" but nonetheless serious threat. In the case of rape and
incest, the resulting pregnancy has been inflicted unjustly and violently
against the woman by a violation of her right to physical integrity. There-
fore, she has the right to remove by an abortion the result of this assault out
of true love of self.
The possibility of severe deformity is sufficient reason to warrant an abor-
tion. Nature itself intends, as St. Thomas observed, bodily perfection and of
itself (not by direct Divine intervention) aborts in almost one-third of all
pregnancies where the fetus is defective. Here we would be imitating the
unconscious "intelligence" of the natural processes, consciously. As the late
Dr. Joseph Stokes, the renowned pediatrician pointed out. many cases of
mongolism with its severe mental retardation can already be detected early
in pregnancy by amniocentesis.
In summary, the pregnant woman is first of all a human being, herself, with
her own set of rights which she does not lose simply by becoming pregnant.
Thusly. she may be regarded as the bearer of another as yet no fully human
life, in the early months of pregnancy, (though the very same moral prin-
ciples hold even if the full humanity of the fetus were certain.) As with some
212
rJ-hl to life" to health whether physical or mental, to noeny wneuier
Bnlritual or physical! to physical integrity; to those goods deemed essential
to life If a woman 1 as additional obligations to a husband and existing chil-
« I, ,i I ' iwlv obliged in justice to seek an abortion in order to safe-
Kuanl no, nnh her own life but also the well-being of her family, no matter
bow repugnant and heart-rending this decision.
STATEMENT ON BKIIALF OF CATHOLICS FOK A FREE CHOICE
I as an Individual, and as the representative of the Board of Directors of
Catholics *>r il Free Choice, a national organization dedicated to the principle
th" women have the righl and duty to follow their conscience regarding
decisions on abortion and contraception and that the law has a corresponding
rieht and duty to make it possible for them to implement those choices under
medically safe conditions. In this respect we are wholeheartedly in favor of
Hi,. Supreme Court decisions and commend the Justices of that court for tDeir
WHowever, I would hasten to add that when abortions are performed, they
should he followed by contraceptive counseling so as to prevent, if at all
possible, the Deed for future abortions.
We consider abortion to be a serious moral problem and while we are not
■for abortion" across the hoard, we nonetheless believe there are many serious
reasons that could justify taking the life of the fetus.
Such reasons we would consider are extreme poverty, mental illness, grave
or crippling physical disease of the mother, rape, incest, the possibility of a
deformed fetus and grave risk to the life of the mother. Another reason, though
none less valid, would be the positive unwillingness of the woman to carry the
pregnancy to term, for we can think of nothing more detrimental to a human
baby than to be born to a mother who hated its very existence.
Catholic women as well as non-Catholic women are driven to abortion which
is often their only recourse, as a last resert when contraception is denied them
or fails to work effectively. The Catholic Church in prescribing "rythm" as a
means of birth control is completely unrealistic and is indeed causing more
abortions by its unrelenting stand on birth control. "Rythm" or "Vatican Rou-
lette' as I refer to it is absurd; to wit. in my case — I have five lovely daugh-
ter< whom I refer to as "The Rythmairres". During my last two pregnancies,
I almost died. I have laid my life on the line for the Catholic Church those
last two times and do not intend to do it again.
Our hierarchy and priests ami laity have an obligation in charity and jus-
tice to at leasl talk to their own Catholic people on this matter. With very
tare and brave exceptions, like Father Joseph O'Rourke, they haven't been
doing it.
It would also help matters considerably if Catholics would stop the un-
christian nameealling and labelling everyone who disagree with them as
"murderers" and "abortionists" .and listen to the "other" side for a change.
Right and reason have not always been on the "Catholic" side, as witness the
ongoing contraception debate in the Church.
Mr. Bayh and members of the Committee. I hope I have pointed out to you
today how the Catholic Church has not held a firm position on the issues of
abortion and contraception, but has changed through the centuries, depending
on who was in "office" Our present-day hierarchy seem to have amnesia on this
subject or have not done their homework and are unaware of their own
Church history.
The Catholic hierarchy should follow the teaching of one of the early Doe-
tors ,,f the Church. Tertullian, who, in the third century spoke to women on
the subject of abortion ;
"In this matter. ( abortion i there is no more fitting teacher, judge, witness,
than on,. ,,f this sei (female). Reply, you mothers, you bearers of children, let
'< (hierarchy) and masculine be silent, the truth of your nature is
-oiil'Ii! " It.. Aniina 25.5
Catholics for a Free Choice and myself thank you for the opportunity to
speak here before you today.
ABORTION
TUESDAY, OCTOBER 8, 1974
U.S. Sex ate,
Subcommittee on Constitutional Amendments
of the Committee on the Judiciary,
Washington, D.C.
The subcommittee met, pursuant to notice, at 11 :10 a.m., in room
2228, Dirksen Senate Office Building, Senator Birch Bayh (chairman
of the subcommittee) presiding.
Present: Senator Bayh (presiding).
Also present, J. William Heckman, Jr., chief counsel; Barbara
Dixon, research assistant; and Teddie Phillips, assistant chief clerk.
Senator Bayh. We will reconvene our hearings, with an apology
to our distinguished panelists. I had a vote, so I am sorry to keep
you waiting.
Our witnesses today are a very distinguished group of panelists:
Prof. John T. Xoonan, Jr., professor of law, University of Califor-
nia, Berkeley; Prof. John Ely, professor of law at Harvard Uni-
versity; Prof. Laurence H. Tribe, professor of law at Harvard;
Prof. Philip B. Heyman, professor of law. Harvard University.
I will let you gentlemen proceed. Did you flip a coin to decide who
goes first or shall we just proceed with the order that I just read?
Mr. Noonon. That is fine.
Senator Bayh. All right, we will do it that way then. Please
proceed.
STATEMENT OF JOHN T. NOONAN, JR., PROFESSOR OF LAW,
UNIVERSITY OF CALIFORNIA, BERKELEY
Mr. Xoonan. You have before you proposals to amend the Con-
stitution of the United States as it was interpreted by the Supreme
Court of the United States on January 22, 1973. To resolve by
constitutional amendment, an impasse created by the Court, or to
correct gross and substantial error committed by the Court, is neither
improper nor unprecedented. The 16th amendment became inevitable
after the Court had decided Pollock v. Fanners Loan and Trust
Company. The 14th amendment was the necessary answer, after
bloody war, to Bred Scott v. Sanford. A proper balance between
the organs of government and the people requires that no determi-
nation by a governmental body be irreversible and no fundamental
distortion beyond popular correction.
Seventy years agso a majority of the Supreme Court held that the
14th amendment was violated by New York limiting the hours of
(213)
214
bakers to 60 hours a week. Such legislation, the Court said, deprived
the employers of the bakers and the bakers themselves of a basic
liberty of contract. In dissent, Justice Oliver Wendell Holmes, Jr.,
wrote :
The Hih amendmenl does not enacl Mr. Herbert Spencer's Social Statics.
I think that the word liberty in the 14th amendment is perverted when it is
held to prevenl the natural outcome <>f a dominant opinion unless it can be
s;,i,l thai a rational and fair man necessarily would admit that the statute
proposed would Infringe fundamental principles as they have been under-
d by the traditions of our people and our law.
The standard set out by Justice Holmes was prophetic. It is ger-
mane to vour deliberations today. Common law restricting abortion
; old as the Constitution. The people of all 50 States had statutes
dating abortion in force on January 22, 1973. By virtue of Roe
\. Wade and Doe v. Bolton these statutes became constitutionally
defunct. Would a fair and reasonable man be compelled to admit
that every one of these statutes had in fact infringed fundamental
principles as those principles have been understood by our people
and our law? I invite you to apply Holmes' criterion to what the
Court decided in the Abortion Cases.
In the less than '2 years in the lapse since the Abortion Gases
were decided, the courts have spelled out in detail their implications
and underlined their ominous significance for American society.
The principal consequences are three: First, the subversion of the
structure of the family in that a father now has no protectable legal
interest in its unborn offspring; second, the mandated public funding
of abortion so it is unlikely that a national health bill can be
enacted, which constitutionally excludes abortion from the surgical
services to he federally financed; and third, and worst of all, the
unmaking of human beings, the acceptance of the principle that
the law can say who is not a human being. All of our constitutional
liberties are nothing if we can be defined out of the human species.
In I>n (I Scott v. San ford the Supreme Court declared that a
descendant of African slaves could never be a citizen of the United
State-. Vet even that mosl dreadful of decisions did not carry so
far as Roe and Doe. These decisions, as now interpreted by the
courts, arrogate to the courts the power to decide who is human.
Hear, for example. Child" Judge Pettine of Providence, ruling on
a Rhode Island statute enacted after Roe and Doe. which expressly
declared that in Rhode [sland the person commences to exist at the
instanl of conception. The State produced witnesses with credentials
the judge acknowledged to he impressive to testify that the embryo
was a member of the human species. I quote Judge Pettine: '"I
neither summarize nor make any findings of fact as to their testi-
mony. To me the United State- Supreme Court made it unmistakably
dear that the question of when life begins needed no resolution by
the judiciary as it was not a question of fact. I find it irreleyant to
all the issues presented for adjudications." Once the Supreme Court
had ruled that a fetus was not a person, it was. Judge Pettine held,
'frivolous ' for a State to try to show the contrary.
Lawyers air used to dealing with presumptions, with creations
of law. with fictions. At first appearance the denial of humanity to
tne fetus m;iv appear as jusl another fiction, not more shocking than
215
many other fictions necessary for the working of law. For the pur-
poses of the 14th amendment, the fetus is not human; for the pur]
of the Social Security Act, the fetus is human- -distinctions of this
kind are common in the law. What is shocking, repelling, fatal in
this distinction, in this fiction is that the courts here assume the power
to exclude a species of humanity in determining fundamental pro-
tection under the Constitution and to exclude that specie- beyond
the power of any legislature to restore.
If, by constitutional fiction, persons only exist at birth, by another
constitutional fiction persons may cease to exist at 80. The Supreme
Court itself hints at such a standard in Roe by referring to a fetus1
lack of "meaningful life." If what seven judges view as meaningful
life is the test of personhood for the Constitution, if facts are irrele-
vant in determining who is entitled to constitutional protection, the
judiciary has absolute power to contract the protection of the Consti-
tution to the healthy or the mentally alert.
By Holmes' standard, what kind of constitution-making is this?
Are fundamental principles as understood by the provisions of our
people and our law infringed if a State calls attention to the facts
and says, "You are mistaken. The child is human?"
Proposed regulations of the Department of Health, Education,
and "Welfare on sex discrimination in federally assisted programs of
education now read: "For the purpose of this subpart, 'pregnancy'
means the entire process of pregnancy, childbirth, and recovery there-
from, and includes false pregnancy, miscarriage, and abortion."
"War is peace. Freedom is slavery. Ignorance is strength," and of
government departments the ministry of love is "the really fright-
ening one." I quote of course from "Nineteen Eighty-Four" by
George Orwell. Even Orwell did not imagine a world in which
the ministry of health defines pregnancy to include abortion. Nor
did he imagine a society in which childbearing capacity is analogized
to a tumor causing neurological problems, in which a father has no
protectable legal interest in the life of the child he has begotten, in
which the State need not pay for childbirth but must pay for
abortion, and in which biological facts are irrelevant to the definition
of human life. Yet to that society we have come through our courts
in the second year after Roe and Doe.
What is necessary is law setting the country in a different direc-
tion, the direction of distinguishing between death and life. No
a law than an amendment to the Constitution can effect this change.
The States are helpless. All of the efforts of the people have been
struck down. Only an amendment can now change the law.
At issue is the balance of power between the Federal judiciary
and the States. At issue is the structure of the family as the legally
recognized union of female and male endowed with equal right-.
At issue is the role of government in sponsoring the taking of life
through government medical services and health care progra
Above all, at issue is the law's ability to defend the life of every
member of the human species.
An amendment cannot speak on these issues with the precision of
a criminal code, dotting every i, resolving every contingency. An
amendment can speak on the" grand lines of the 1st, 5th, or llth
amendments, educating the country. In the bicentennial of our birth,
210
an amendmenl can set out the values on which our policy depends, it
can correct the perversion of liberty in Roe and Doe, it can restrain
the State from taking life, it can recognize that the most precious
liberty is the liberty to live and restore the possibility of protecting
h\ law a uniquely vulnerable portion of the human species.
[The prepared statement of John T. Noonan, Jr. follows:]
Statement of John T. Noonan, Jr., Professor of Law, University of
California, Berkeley
My oame is .John T. Noonan, Jr. I am a professor law at the University of
California, Berkeley, where 1 teach courses in family law, population pro-
grams, jurisprudence, and legal ethics in the law .school and courses in mar-
riage and the family iu the Graduate Department of History. I am the author
ne book on the history of attitudes toward contraception, and I am the
editor of a second book on the legal and moral issues involved in abortion. I
come here al litis Commit tec's invitation, at this Committee's expense, and as
the representative of Q0 organization or group.
Xou ha\c before you proposals to amend the Constitution as it was inter-
preted by the Supreme Court of the United States on January 22, 1973. To
resolve by constitutional amendment an impasse created by the Court, or to
correct gross and substantial error committed by the Court, is neither im-
proper nor unprecedented. The 16th amendment became inevitable after the
Court had derided Pollock V. Farmers' Loan and Trust Company} The 14th
amendment was the necessary answer, after bloody war, to Drcd Scott v. San-
ford.* A proper balance between the organs of government and the people re-
quires that no determination by a governmental body be irreversable and no
fundamental distortion beyond popular correction.
Seventy years ago a majority of the Supreme Court held that the 14th
amendment was violated by New York limiting the hours of bakers to 60 hours
a week. Such legislation, the Court said, deprived the employers of the bakers
of a basic liberty.' In dissent Justice Oliver Wendell Holms, Jr. wrote: "The
1 tth amendment does not enact Mr. Herbert Spencer's Social Statics. * * * I
think that the word liberty in the 14th amendment is perverted when it is
held to prevent the natural outcome of a dominant opinion unless it can be
said that a rational and fair man necessarily would admit that the statute
proposed would infringe fundamental principles as they have been understood
by the traditions of our i>eople and our law."'
The standard set out by Justice Holmes was prophetic. It is germane to your
deliberations today. Common law restricting abortion is as old as the Constitu-
tion. Thse people of all 50 states had statutes regulating abortion in force on
January 22, 1973.* Would a fair and reasonable man be compelled to admit
that every one of these statutes had in fact infringed fundamental principles
principles have been understood by our people and our law? I invite
you to apply Holmes' criterion to what the Court decided in the Abortion
Cast 8.
I. what THE SUPREME COURT DECIDED IN R0€ V. Wade AND Doe V. Bolton
•nfnsion lias persisted as to what the Court actually decided in Roc and
!>.,<. in part because of the inordinate length of the opinions, in part because
certain wooliness in their composition, and in part because of inaccurate
rtlng by the media. I have noticed that even ardent opponents of abortion
sometimes imitate and underestimate the sweep of the Court's holdings
Hi Court did not decide that at the end of the second trimester the child in
the womb could, in some fashion, be protected— it expresslv said that viability.
- of protection could be Riven, was "usually placed at serin
(emphasis supplied).7 The Court did not sav that the child after 7
'-nth. had the rights of a person \t expressly said that "the unborn have
recognized in the law as persons in the whole sense" femnhasis
supplied, ll„. Court did not hold that after 7 months, the State could pro-
hin" •'•""'ion it expressly held in Roe a prohibition even in the last 2 months
, ,', "''''"'I '" exception in favor of "the life or health of the
mothor (empha»1« «nppliod>.« The Court went on to say in Dor that "the
: end "f article.
217
medical judgment may he exercised in the light of all factors physical, emo-
tional, psychological, familial, and the woman's age — relevant to the well-being
of the patient. All these factors may relate to health."1"
Putting health in terms of •well-being", the Court created a basis for an
abortion such that no physician could ever be prevented by law from perform-
ing an abortion that he believed was for the well-being of the woman who
requested it. In a concurring opinion Chief Justice Burger said "plainly the
Court today rejects any claim that the Constitution requires abortion on
demand."11 But if no barrier can be constitutionally set by law to the doctor's
discretion to operate, abortion on demand exists as long as there arc doctors
willing to answer a request for an abortion.
The Court did decide that somewhere in the Constitution— "we fed". tin-
Court said, that the location is in the 14th amendment's requirement that
liberty be restricted only by due process" there was a right of privacy,
right was not express. The Court discovered it. The right was broad enougb
to give every woman a right to abortion. On this inference from an inference.
or implication from an implication, the Court bottomed its reasoning.
The right to privacy. Chief Justice Burger said elsewhere, has "tenuous
moorings in the Constitution."111 Anchored to this tenuously moored right, the
right to an abortion was ranked by the Court with those personal rights that
can be deemed "fundamental" or "implicit in the concept of ordered liberty.""
A right directly contrary to what had been the law of the land the Court now
proclaimed to be basic and necessary to "ordered liberty."
This new constitutional liberty, the Court found, was subject to the State's
interest in protecting the mother's health. The State might— the Court ap-
peared to say — constitutionally require that all abortions be recommended by
physicians. The State might — the Court clearly said — after the first trimester
require that abortion be performed in facilities licensed by the state.1"' With
these thin qualifications, the woman's right to an abortion was absolute ex-
pressly so, in the Court's holdings, before the child's viability, inferential!.
by the Court's definition of health as well-being and the subjection of the child
to the mother's well-being in the last two months. In effect, if not in exj
terms. Roe v. Doc made abortion on demand the law of the land.1"
Nothing in precedent, nothing in our traditions, nothing in history justified
the majority's interpretation of the term liberty. As constitutional law, its
action deserves the severe reproach Justice Benjamin R. Curtis made to his
brethren wdio decided Dred Scott v. Sanford: "Political reasons have not the
requisite certainty to afford rules of judicial interpretation. They are differ-
ent in different men. They are different in the same men at different times.
* * * We are under the government of individual men. who for the time being
have power to deduce what the Constitution is. according to their own views
of what it ought to mean." 1T The same rebuke, in different language, was con-
veyed in Justice Byron White's description of the majority action in I'o< v.
Doc as an exercise in "raw judicial power." '"
By Holmes' standard this radical creation of a new liberty in the Constitu-
tion was justified only if a reasonable and fair man would have been com-
pelled to agree that the 50 states had been infringing fundamental principles.
Once the Court had spoken the laws of every state on abortion were constitu-
tionally defunct. For the first time in the history of our country, the live
one large portion of the human species were without the protection of law.
II. THE CONSEQIEXCES OF ROC AND Doc
In the less than two years that has elapsed since The Abortion Cases were
decided, the courts have spelled out in detatil their implications and underlined
their ominous significance for American society. The principal consequences are
First. The Subversion of the Structure of the Family.
1. The Supreme Court noted deliberately in Roe that it was not deciding the
constitutionality of a statute requiring a father's consent for a legal abor-
tion.10 The Court set up. however, such an unqualified right in a mother to
dispose of her offspring while alive within her body that it was almost in-
evitable that a father's interest would be treated as negligible. A three-judge
federal court in Florida interpreted Roe and Doe to mean that the State had
no interest to protect in the young fetus, and that if the State had no inter
See footnotes at end of article.
218
the State could nol create an interest in the father. A Florida statute requir-
e the »nsent was held unconstitutional.
in Utah a statue was enacted alter tfoe and L>oc to require that the father
.■t.."f«ii that tlii- mother be counselled as to the alternatives to abortion and
/'judicial hearing be promptly held to ascertain that the consent and
1 Led g ad been given. A three-judge federal court invalidated the entire
l v, said Chief Judge Hitter, unconstitutional to subject "exercise of
Sr*lndivldual right* privacy of the mother" to "the consent of others or to
"^T^KdwUAons Roe and Doe are seen to stand for a view of a woman's
dominion over her ofEspring in which the fathers role in the child's procreation
is ignmcd and the fathers concern for his offspring's welfare is given a zero
value. The father is simply classified with "others."
2 The Loortto* r«.*< * were applied in Alabama to affect the action of a local
1 board setting standards for the conduct of public school teachers. An
unmarried teacher became pregnant and sought information from a hospital
about abortion. Word of her condition came to the board of education of
Covington County, which, after a hearing, fired her for immoral behavior. A
three-judge federal court held the Alabama statute permitting the discharge of
teachers for immorality to be unconstitutional as applied to this teacher. The
court held that the right of privacy created by Roe and Doe had been
Lnfring , . , ,
hing is as much by conduct as by words. A school system which employs
pregnant unmarried women teaches a view of marriage more eloquently than
a hundred textl ks on social ethics. Yet the Supreme Court itself in Roe and
had made a point of treating the married and the unmarried plaintiffs
tly alike. The federal court in Alabama only went a slight step further in
ting the unmarried woman's right to an abortion as superior to any interest
or the State in teaching that the procreation of children should occur only in
marriage.
The family has been under assault by extreme groups in our society and
under question by others. It remains, in Justice Roger Traynor's words, "the
basic unit of our society"; and, as he put it, "since the family is the core of
our society, the law seeks to foster and preserve marriage."23 Ultra-feminist
interpretations of the Constitution by the courts strikes at the institution. By
Holmes' standard is constitutional decisionmaking of this kind justifiable?
Would a rational and fair man necessarily admit that the Alabama, Florida,
and Utah statutes infringed fundamental principles as they have been under-
id by our people and our law? Rather, have not our people and our law
always treated marriage as the meeting of two persons, equal in their love and
concern for their children, united in a status privileged and fostered by law?2*
If the Constitution did not enact Mr. Herbert Spencer's Social Statics, neither
did it enact Ms. Germaine Greer's The Female Eunuch.
"/. The Mandated Public Funding of Abortion.
ind Doc as interpreted by the federal courts not only treat the
procreation of children atomistically as if it were the individual activity
of women, married and unmarried. They require that public funds be spent
on abortion if public funds are spent on health. They make it highly unlikely,
for example, that a national health bill can be enacted which constitutionally
excludes abortion from the services to be federally financed.
The cases arr these: Nyberg v. City of Virginia, Doe v. Wohlgemuth and
Aiello V. Eas8(
iberg, decided by the federal district court in Minnesota, held that a
municipal hospital must provide abortion services and invalidated the hospital's
triction of abortion to that necessary to save a mother's life. Judge Neville
Mid, ! to this court that Roe V. Wade leaves no room for exception or
for equivocation. Its mandate is clear and explicit." Applying it, he required
"the hospital administrators to take positive steps within a period of 30 days
from date hereof to provide abortion services and facilities to licensed phvsi-
• ••»»■
!. Wohlgemuth held unconstitutional a portion of Pennsylvania's medical
0 under the Social Security Act. The program compensated
abortions performed when continuation of pregnancy threatened the
Itfl or life of the mother, but did not pay for elective abortions. Speaking
f article.
219
for a three-judge federal court, Judge Snyder held that the program "deprived
the women who choose abortions of the equal protection rights guaranteed by
the 14th amendment." The state, he said, could not "justify ou the basis
financial integrity" a regulation excluding a woman who exercised her con-
stitutional right not to bear a child.26
3. Aicllo held unconstitutional a California statute exempting pregnancy-
related work loss from coverage under the state disability program. Without
distinguishing between disability due to normal childbirth and disability due
to an abortion, a three-judge federal court held that the state must pay for all
pregnancy-related disabilities. No rational distinction, the court held, could be
drawn between disability due to an abortion and disability due to delivery of a
child.""7 On appeal the Supreme Court held that the state need not compensate
for work loss due to normal childbirth.-' The state of California failed to appeal
the ruling that it must pay for abortions.
The general principle of these cases was put in a ease from the First Circuit
where, after Roe and Doe were decided, the federal court ruled that the City
of Worcester must provide sterilization services in its municipal hospital. The
State, Judge Coffin wrote, could not "constitutionally draw the line at medi-
cally indistinguishable surgical procedures that impinge on fundamental
rights."™ The city hospital was bound by statute to care for persons "requir-
ing relief during temporary sickness." The hospital performed surgery on
"benign tumors which caused subsequent neurological problems." The "appel-
lant's capacity for childbearing", the court ruled, should be treated similarly
as a form of sickness.30
As long as these interpretations of Roe and Doc are the law, the states and
the Congress will not, it seems, be able to create health programs which, in
providing surgical assistance, draw the line at elective abortion. Again, by
Holmes' standard, is this good constitutional law? Must a reasonable and fair
man agree that fundamental principles as understood by our people and by our
law have been infringed when the majority of people of a state act through
their legislatures to deny government support to abortion? Roe and Doe, as
interpreted, have read the 14th amendment to create a right to the public
financing of abortion.
Third. The Unmaking of Human Beings.
The worst of the consequences of Roc and Doc is the acceptance of the
principle that the law can say who is not a human being. All of our con-
stitutional liberties are nothing if we can be defined out of the human spe-
cies. In Drcd Scott v. Sanford the Supreme Court declared thai the descend-
ant of Africans could never be a citizen of the United States.1'1 but even that
most dreadful of decisions did not carry so far as Roe and Doc. These de-
cisions, as now interpreted by the courts, arrogate to the courts the power
to decide who is human.
Hear, for example. Chief Judge Pettine in Providence, ruling on a Rhode
Island statute, enacted after Roc and Doc. which expressly declared that in
Rhode Island a person "commences to exist at the instant of conception."1'
The State produced witnesses with credentials the judge acknowledged to
be impressive to testify that the embryo was a member of the human species.
"I neither summarize nor make any findings of fact as to their testimony. To
me the United States Supreme Court made it unmistakably clear that the
question of when life begins needed no resolution by the judiciary as it was
not a question of fact. ... I find it irrelevant to all the issues presented for
adjudications."33 Once the Supreme Court had ruled that a fetus was not n
person, it was, Judge Petine held, "frivolous" for a state to try to show the
contrary.34 The Rhode Island statute was invalidated. The "First Circuit
affirmed. The Supreme Court refused to review the ruling that Rhode Island
had acted so frivolously that a single federal judge could annul its legisla-
tion.38
Lawyers are used to dealing with presumptions with creations of law. with
fictions. At first appearance the denial of humanity to the fetus may appear
as just another fiction, not more shocking than many other fictions necessary
for the working of law. For the purposes of the Fourteenth Amendment, the
fetus is not human; for the purpose of the Social Security Act, the fetus i^
human38— distinctions of this kind are common in the law. What is shocking,
repelling, fatal in this distinction, in this fiction is that the courts here assume
the power to exclude a species of humanity in determining fundamental pro-
See footnotes at end of article.
See footnotes at end of article.
220
ttM,lllU ^er the Constitution and to exclude that species beyond the power
01 FfSZSS&STEU Persons only exist at jirMj a^ =
lDS ?£ ;■ ife^st?SrrfaSWa?eS ESSSfflSiSlff wL^s
SSSS ^«£lS3£?SS^ the judiciary has absolute power to con-
tact toe Protection of the Constitution to the Healthy or the menta lly alert.
Hv Bolmes" standard, what kind of constitution-making u this' By any
»fWDtable Btandard what kind of constitution-making is this.' Must a rea-
ffibSLTS?Sn agree that, when seven members of the Supreme Court
decide thai the offspring of human persons is not a human person, runua
e , tal principles as understood by our people and our law are infringed if a
State calls attention to the facts and says, "You are mistaken. Ihe child is
bum an."
III. WHAT MUST BE DONE
Proposed regulations of the Department of Health, Education, and Welfare
on sei discrimination in federally assisted programs of education now read:
•For the purpose of this subpart, •pregnancy' means the entire process of
pregnancy, childbirth, and recovery therefrom, and includes false pregnancy,
irriage, and abortion." "
War is Peace. Freedom is Slavery. Ignorance is Strength", and of govern-
ment departments the Ministry of Love is "the really frightening one. I
quote of course from Nineteen Eighty-Four by George Orwell. Even Orwell
did nol imagine a world in which the Ministry of Health defines pregnancy to
include abortion. Nor did he imagine a society in which ehildbearing capacity
nalogized to a tumor causing neurological problems, in which a father has
no interest in the life of the child he has begotten, in which the State need not
pay for childbirth but must pay for abortion, and in which biological facts are
irrelevant to the definition of human life. Yet to that society we have come
througb our courts in the second year after Roe and Doe.
c.urts are not omnipotent. They do not act alone. They interact with other
fan mis in the social stream. But they can give a powerful impetus to par-
ticular factors. Their decisions, especially those of the Supreme Court, select
and sanctify certain principles and thereby educate our people. These de-
cisions have selected and sanctified principles of death.
What is necessary is law setting the country in the direction of distinguish-
ing between death and life. No less a law than an Amendment to the Con-
stitution can effect this change. The states are helpless. Minnesota has seen
municipal hospitals compelled to provide abortion.40 California, New York
and Pennsylvania have seen themselves compelled to fund abortions.41 Alabama
lias seen its moral standard for school teachers set aside.42 Arizona, Con-
ticut, Florida. Georgia, Iowa, Kentucky. Maryland, Michigan, Montana,
Rhode Island. South Carolina. Texas. Utah and Wyoming have seen their
tutes on abortion formally declared unconstitutional.4" It has made no
difference to the courts that large popular votes before Roc and Doe rejected
change in the statutes, as in Michigan in November 1972. ** It has made no
difference that the legislatures attempted to act within the openings they
thought /.''« and Doe had left as did Rhode Island and Utah.45 The judges
have not doubted that they knew better what liberty in the Fourteenth
Amendment requires. All the attempts of the people have been struck down.
Only an Amendment can now change the law.
At Issue is the balance of power between the federal judiciary and the
W issue is the structure of the family as the legally recognized union
of female and male endowed with equal rights. At issue is the role of gov-
ernment in sponsoring the taking of life through government medical services
and health care programs. Ahove all, at issue is the law's ability to defend
the life of every member of the human species.
An Amendment cannot speak on these issues with the precision of a crimi-
nal code, dotting every i. resolving every contingency. An Amendment can
on the grand lines of the First, Fifth, or Fourteenth Amendments,
• not.s at end of article.
221
educating the country. In the bicentennial of our birth, an Amendment can
set out the values on which our polity depends, it can correct the pervi
of liberty, in Roe and Doe, it can restrain the State from taking life, it can
recognize that the most precious liberty is tbe liberty to live and restore the
possibility of protecting by law a uniquely vulnerable portion of the human
species.
*157 U.S. 429 (1895).
2 19 How. 393 (1856).
3 Lochner v. New York, 198 U.S. 45 (1905).
* Ibid, at 75 (dissent).
6 See John T. Noonan, Jr., ed.. The Morality of Abortion: Legal and Historical Per-
spectives (1970) 223-225.
» Ibid. 225, 248-250.
7 Roe v. Wade, 410 U.S. 113 (1973) at 160.
8 Ibid, at 162.
»Ibid. at 165.
10 Doe v. Bolton, 410 U.S. 179 (1973) at 1972.
11 Ibid, at 208 (concurrence)
12 Roe v. Wade, 410 U.S. 113 at 153.
"Eisenstadt v. Baud, 405 U.S. 43S at 472 (dissent) (1972).
14 Roe v. Wade, 410 U.S. 113 at 152, quoting Palko v. Connecticut, 302 0.8 319
325 (1937).
is Roe v. Wade, 410 U.S. 113 at 163. At 163 the Court says that the States "com-
pelling interest" in the mothers health begins only at the end of "the first trimest-r
At 164 the Court says the abortion decision in the first trimester "must be left to
the medical judgment of the pregnant woman's attending physician."
w For a further analysis, see Noonan, "Raw Judicial Power", National Review
March 3, 1973 [attached hereto as Appendix A].
17 Drcd Scott 17. Sanford, 19 How. 393 at 620 (dissent).
™Doe v. Bolton, 410 U.S. 179 at 222 (dissent).
18 floe v. Wade, 410 U.S. 113 at 165.
20 Coe v. Oerstein, Reporter on Human Reproduction and the Law I-C-2 (S.D. Fla.,
August 13, 1973), appeal dismissed for want of jurisdiction, 42 U.S. Law Week :;•;•;
(1974).
^Doe v. Rampton, 366 F. Supp. 189 (D. Utah, September 7, 1973).
22 Drake V. Covington County Board of Education, 371 F. Supp. 974 (N.D. Ala.
January 23, 1974).
^DeBurgh v. DeBurgh, 39 Cal.2d 858 at 863, 250 P.2d 598 at 601 (1952).
24 For a discussion of Roe and Doe in the context of recent Supreme Court decisions
touching marriage and the family, see Noonan, "The Family and the Supreme Court",
23 Cath. Univ. L. Rev. 255 (1974) [attached hereto as Appendix B].
^Nyberg v. City of Virginia, 361 F. Supp. 932 at 938 (D. Minn. 1973).
28 Doe v. Wohlgemuth, Reporter on Human Reproduction and the Law I-C-49 (W. 1).
Penn., May 3, 1974) (Judge Weis dissenting).
27 Aiello v. Hassen, Reporter on Human Reproduction and the Law I-C-50 (I>. No
Cal., March 31, 1973) (Judge Williams dissenting)
^Oedulgig v. Aiello, 94 S. Ct. 2485 (June 17, 1974).
29 Hathaway v. Worcester City Hospital, 475 F.2d 701 at 706 (1st Clr., March 22.
1973).
30 Ibid, at 705.
™Dred Scott v. Sanford, 19 How. 393 at 403, 427 (1858).
32 Rhode Island Criminal Abortion Statute 73-S287, Substitute A, Rhode Island
General Laws, sec. 11-3-1, set out in Doe v. Israel, 358 F. Supp. 193 (D.R.I., May 16,
1973).
&Doe v. Israel, 35S F. Supp. 1193 at 1197.
34 Ibid, at 1199.
35 42 U.S. Law Week 3632 (May 13. 1974).
38 E.g. Doe v. Lukhard, 493 F.2d 54 (4th Clr. 1974).
37 floe r. Wade, 410 U.S. 113 at 163 (1973).
38 Department of Health, Education, and Welfare, "Education Programs and Aetlv
ltles Receiving or Benefitting from Federal Financial Assistance", 86.47(c), Federal
Register, June 20, 1974, p. 22237.
39 George Orwell, Nineteen Eighty-Four (1949) 17-ls.
40 Nyberg v. City of Virginia, supra n. 25.
"Klein v. Nassau County Medical Center, 347 F. Supp. 490 (E.I). N.Y. 1973);
Wohlgemuth v. Doe, supra n. 26.
42 Drake v. Covington County Board of Education, supra, n. 22.
"Arizona: Nelson v. Planned Parenthood Center of Tucson, Inc., 19 Ariz. App 142,
505 P.2d 580, 590 (1973); Connecticut: Abcle V. Markle, 369 F. Supp. 807 (D. Conn
1973) ; Florida : Coe v. Oerstein, Reporter on Human Reproduction ami the Law
I-C-2 (S.D. Fla. 1973); Georgia: Doe V. Bolton, 410 U.S. 179 (1973); Iowa: Do
Turner, 361 F. Supp. 12SS (S.D. Iowa 1973). Kentucky: Sasaki r. Commonwealth. 491
S.W.2d 713 (1973); Maryland: State v. Ingel, 1^ Md. App. 514, 308 V-M 223 (197
Michigan: People v. Bricker, 389 Mich. 524, 208 N.W.2d 173 (1973); Montana: Dot
v. Woodall, Reporter on Human Reproduction and the Law I-C-30 (D. Mont liiT.'t'
Rhode Island: Doe v. Israel, 358 F. Supp. 1193 (D.R.I. 197:;). affirmed 4S2 F.2d 156;
cerr. denied 42 U.S. Law Week 3632 (1974); South Carolina: State v. Lawrence, ins
S.E.2d (1973); Texas: Roe v. Wade, 410 U.S. 113 (1973); Utah: Doe v. Hampton,
366 F. Supp. 189 (1973); Wyoming: Doe r. Burk, Reporter on Human Reproduction
and the Law I-C-9 (1973).
"■Time, November 13, 1972.
45 Supra, a. 21 and 32.
222
Appendix A
Raw Judcial Power
(By John T. Noonan, Jr.)
On January 22, P.)73, the Supreme Court of the United States deciding
R(H v. Wmli ami !>'„■ v. Bolton announced that a new personal liberty existed
in tlu- Constitution— the liberty of a woman to procure the termination of
her pregnancy at any time in its course. The Court was not sure where the
Constitution had mentioned this right, although the Court was clear that
the Constitution had not mentioned it explicitly. "We feel," said Justice Black-
mum for the majority, "that the right is located in the Fourteenth Amend-
ment s concept of personal liberty," but he thought that it also could be placed
•in the Ninth Amendment's reservation of rights to the people" (Wade, pp.
37-3* i. Vague as to the exact constitutional provision, the Court was sure of
its power to proclaim an exact constitutional mandate. It propounded a doc-
trine on human life which had, until then, escaped the notice of the Congress
of the United .States and the legislators of all fifty states. It set out criteria
it said were required by the Constitution which made invalid the regulation
of abortion in every state in the Union, the District of Columbia, the Com-
monwealth of Puerto Rico, and the City of New York. No one of these bodies
had read the Constitution right.
Wherever the liberty came from in the Constitution and however recent
its discovery was, it was of a very high rank. It deserved to be classified as
"fundamental" and as "implicit in the concept of ordered liberty" (Wade,
p. 37). With these characterizations, the right took its place with such founda-
tions of* civilized society as the requirement of fair, public trials. Justice
Blackmum seemed to sense no incongruity in giving so basic a position to a
demand which had, until his opinion, been consistently and unanimously re-
ed by the people of the United States. He did not pause to wonder how
the nation had survived before January 22. 1973 in steadfastly repudiating a
right implied in the concept of ordered liberty.
Some of the legislation affected was old. going back to the mid-nineteenth
century, some was recent, reflecting the wisdom of the American Law Insti-
tute or containing explicit statements of intent to protect the fetus. Some of
the legislation had been continued by recent popular referenda, as in Michigan
and North Dakota; some of the legislation was in the process of repeal, as
in New York. Old or new, compromise or complete protection from conception,
passed by nineteenth-century males or confirmed by popular vote of both
(8, maintained by apathy or reaffirmed in vigorous democratic battle, none
of the existing legislation on abortion conformed to the Court's criteria. By
this basic fact alone. Roe v. Wade and Doe v. Bolton may stand as the most
radical decisions ever issued by the Supreme Court.
That these opinions come from a Court substantially dominated by appointees
of ., President dedicated to strict construction of the Constitution, that they
should be drafted by a Justice whose antecedents are Republican, are ironies
which do not abate the revolutionary character of what the Court has done
in the exercise of whal Justice White, in dissent, calls "raw judicial power."
In rhetoric, the style is that of a judicial body. In substance, the opinions
could have been authored by Paul Ehrlich or Bella Abzug.
Radicalism marks not only the Court's treatment of the states and its
preference for the views of an elite to the results of democratic contests.
Radicalism is also the mark of the Court's results. In October 1963 Glanville
Williams, the spiritual father of abortion-on-demand, put the proposition to
the Abortion Law Reform Association that abortion be made a matter between
woman and physician up to the end of the third month. His proposal was
voted down by the then most organized advocates of abortion. In less than
ten yeara the Supreme Court has written into the Constitution a far more
radical doctrine By virtue of its opinions, human life has less protection in
the United States today than at any time since the inception of the country.
By virtue of its opinions, human life has less protection in the United States
than in any country of the Western world.
THE COURT'S HOLDINGS
Did the Court really go so far? Here is what it held:
Until a human being is "viable" or "capable of meaningful life," a state
has no compelling interest" which justifies it in restricting in any way in
223
favor of the fetus a woman's fundamental personal liberty of abortion ( Hade,
p. 48). For six months, or "usually" for seven months (the Court's reckoning,
p. 45), the fetus is denied the protection of law by virtue of either the Ninth
Amendment or the Fourteenth Amendment.
2. After viability has been reached, the human being is not a person "in
the whole sense," so that even after viability he or she is nol protected
by the Fourteenth Amendment's guarantee that life shall not he taken with-
out due process of law ( Wade, p. 47). At this point lie or she is, however,
legally recognizable as "potential life" {Wade, p. 48).
3. A sate may nonetheless not protect a viable human being by prevent-
ing an abortion undertaken to preserve the health of the mother ( Wade, p.
48). Therefore a fetus of seven, eight, or nine months is subordinated by
the Constitution to the demand for abortion predicated on health.
4. What the health of a mother requires in any particular case is a medi-
cal judgment to be "exercised in the light of all factors — physical, emo-
tional, psychological, familial, and the woman's age — relevant to the well-
being of the patient" (Bolton, pp. 11-12).
5. The state may require that all abortions be done by licensed physicians,
that after the first trimester they be performed in licensed "facilities," anil
that after viability they be regulated so long as "health" abortions are not
denied (Trade, p. 49). The state is constitutionally barred, however, from
requiring review of the abortion decision by a hospital committee or concur-
rence in the decision by two physicians other than the attending physician
(Bolton, p. 17, p. 19). The Constitution also prohibits a state from requiring
that the abortion be in a hospital licensed by the Joint Committee on Ac-
creditation of Hospitals or indeed that it be in a hospital at all (Bolton, pp.
14-15).
With belated misgivings, Chief Justice Burger concludes his breif concur-
rence in Justice Blackmun's opinion with the sentence: "Plainly, the Court
today rejects any claim that the Constitution requires abortion-on-demand."
Here is a desperate effort to recapture in a sentence what the Court has
given away in its list of criteria mandated by the Constitution. Plainly, there
cannot be the slightest argument that for the first six to seven months of
fetal exitence, the Court has made abortion-on-demand a constitutional right.
Opposed to the mother's "fundamental personal liberty," the embryo or fetus
is valued at precisely zero. His or her very existence seems to be doubted by
the Court which refers to the state's interest here not as an interest in actual
interest in actual lives but as an interest in a "theory of life" {Wade, p. 47).
The woman's right is treated as an absolute, abridgeable only for her own
sake by the requierments as to licensed physicians and facilities.
Abortion-on-demand after the first six or seven months of fetal existence
has been effected by the Court through its denial of personhood to the viable
fetus, on the one hand, and through its broad definition of health, on the
other. Because the seven-month-old fetus is not a person — cannot be a person
as long as it is a fetus— because it now bears the label "potential life," the
fetus is not a patient whose interest the physician must consult. In the
Court's scheme, the physician has one person as patient, the mother.
When the doctor considers the mother's health, he is to think in terms ol
the extensive definition of health first popularized by the World Health
Organization (WHO). According to the WHO declaration, health is "a state
of complete physical, mental, and social well-being, not simply the absence
of illness and disease." The Supreme Court now affixes a seal of approval
to this definition, substituting "familial" for "social," but essentially equating
health with well-being. What physican could now be shown to have per-
formed an aborton, at any time in the pregnancy, which was not intended
to be for the well-being of the mother? What person would have difficulty in
finding a phvsician who, in full compliance with the Court's criteria, could
advise an abortion if the patient's emotional demand was intense enough?
Never before in British or American law has a baby in the last stages ol
pregnancy been so exposed to destruction at the desire of the parent.
THE COURT'S REASONING
How did this Supreme Court reach this extraordinary result? In part
through an inept use of history, in part through a schizophrenic style 01
judicial interpretation, in part through a conscious response to the needs
technocracy.
224
I ,, as took al the history. Justice Blackmun's opinion in Wade contains a
copious gob of it. (Wade, pp. 14-36). By and large it is a conscientious if
Parian review of the relevant literature. But it is a history that >s un-
digested—better said, it is history that has been untested. It has afforded no
nourishment to the mind of the judge who set it out. He has not let it
encage his spirit. He has not felt the pressure of loyalty to the persons of
the past who have shaped our culture. He has not responded as a person to
their perceptions.
rustice Blackinun describes with clarity the reason the American Medical
•elation led the flght in the nineteenth century for statutory protection of
the embryo "the popular ignorance of the true character of the crime— a
belief even among mothers themselves that the fetus is not alive till after
the period of quickening"; the consequent "unwarrantable destruction of
human life" before the fifth month. He concludes. "The attitude of the pro-
fession may have played a significant role in the enactment of stringent
abortion legislation during that period" [Wade, pp. 26-27). But the umm-
peachable facts are apparently forgotten when Justice Blackmun discusses
the claim that the purpose of American statutory law was not to protect
the fetus, but to protect the mother from sepsis or other risks attendant on
abdominal surgery in the unsanitary hospitals of the day. The Justice does
nut ask why the' statutes then bar abortion by drug, or why this kind of
surgery alone should have been made subject to the criminal law and cus-
tomarily classed among "Crime against the Person."
Tf Justice Blackmum can read the history, cite the American Medical As-
sociation jeremiads, and trace the development of the law. and yet be un-
ain as to the law's intent, it must be that he has failed to grasp, failed
to integrate, the purposes which animated our ancestors in laying down a
thick wall of protection about the baby in the womb. History for him has not
the evocation of persons in fidelity to their fundamental purposes. It
has been a charade which is shuffled off the stage when the display of learn-
ing i^ completed.
What of the schizoid style of judicial interpretation favored by the Jus-
i)n the one hand, he declares the Fourteenth Amendment, enacted in
1868, refers to ;i personal liberty which bad escaped attention for over a
century a liberty which, as Justice Rehnquist observes in dissent, would, if
noticed, have invalidated the state stattues on abortion in force in 1868.
Needless to say. not a single word of history is adduced to show that the
framers of the Fourteenth Amendment, the Congress which proposed it and
the states which passed it. intended to legitimize abortion. In this branch
of his opinion. Justice Blackmun is an evolutionist. Constitutions must be
re-interpreted or remade to speak to the times. If liberty means one thing
in TsiVs and .something entirely different in 1073. it is what one must expect
of a basic document exposed to a variety of times and conditions. As Justice
kmun says in an oblique reference to the process which he has followed,
his holding is consistent "with the demands of the profound problems of the
Wade, p. ."0).
On the other hand, in determining the meaning of "person" in the Four-
teenth Amendment's guarantee, the Justice is curiously wooden. He looks at
what person meant literally at the time of the adoption of the Constitution.
He notes what person must have meant in other clauses of the document. He
rves that fetuses are not enumerated in the census. But he does not ask if
the new biological data on the fetus compels the Court to be as evolutionary
in its definition of person as it is in its definition of liberty. He refrains
looking squarely at the fact of fetal existence. He takes the term person
f its meaning had been frozen forever. Contrary to the radical substance
of the rest of his opinion, he is here, uniquely, a strict constructionist.
ler the use of history nor the method of construing the Constitution
Why (lie Court reached the result it did: and the Court has been sc
curiously circumspect about revealing its reasoning that a commentator is
forced to fall back on hints and to resort to inferences. Four features of the
opinions are suggestive :
' •'■ kmun in an excusatory preamble states that he is aware of
motional nature of the abortion controversy" and concludes
admonition from Holmes that judges should not' brand a statute
nitional merely because it embodies opinions which to them are
■ •] and even shocking" (Wade, pp. 1-2). Would it be rash to support that
225
Justice Blackmun saw the appropriateness of this advice, even as be did not
follow it, when he encountered the opinion that a fetus is a person? To one
vocal segment of American thought, few things could be so novel or shock-
ing as the suggestion that a fetus has human right. If Justice Blackmun
accepted the viewpoint dominant in the media, he could readily have been
shocked at the postulates underlying the statutes on abortion.
2. "Population growth, pollution, poverty, and racial overtones" are men-
tioned by name only on page one of Wade as matters "tending to complicate
the problem." They then disappear from view only to be embraced in the
vague but comprehensive self-justification of the Court's holding: It is •con-
sistent with" the "demands of the profound problems of the present day"
(Wade, p. 50). Studiously ignored is the recommendation of the Rockefeller
Commission that abortion be used as a secondary form of population control.
Studiously ignored is the comment of black leaders like .lesse Jackson that
what is being prepared by the welfare bureaucrats is a program of genocide
in the womb. And yet the Court, looking back as it were on its handiwork.
says its holding responds to profound problems of the present. Whal prob
lems fall within the Court's solution but the problems id' controlling popula-
tion growth, the problems of the welfare bureaucracy curtailing welfare rolls'.'
3. The Court declares that if those trained in medicine, philosophy, and
theology are unable to arrive at a consensus as to when life begins, then
"the judiciary is not in a position to speculate as to the answer" ( Wade, p.
44). Incompetence in the area is avowed.
Three pages later, Justice Blackmum describes the abortion statute of Texas
as "adopting one theory of life" and rejects that theory as a ground for regu-
lating abortion. Is this the judiciary "speculating as to the answer'' or js it
not? How can Texas — and the other states with comparable statutes — be
wrong in protecting fetal life against an arbitrary extinction unless the
majority of the Court knows better when life begins? The pretense of in-
competence seems to be humbug.
Beneath the avowal of incompetence is a commitment to a particular theol-
ogy or theory of human life. Life is an interest worthy of state protection
when it acquires the characteristic of "viability" or "the capability of mean-
ingful life outside the mother's womb." At this point, state protection has
"both logical and biological justification" (Wade, p. 48). At this point, in
short, life has characteristics that other humans may recognize. At this point,
functionally, the Justice says human life begins.
As both a logical and biological matter, however, viability depends entirely
on the relation of a human being's capacities to the environment in which
he or she is placed. As Andre Hellegers has pointed out an adult stripped
naked and placed on the North Pole suddenly becomes nonviable. Analogously,
a fetus ripped from his mother's womb suffers a sudden loss of the capability
to survive. In the environment in which he or she has been existing, however.
the fetus was as viable as any of us in our houses.
Neither logic nor biology seems to help in explaining why Justice Blackmum
chose the point in the continuum he picked for recognition. Hut he has
thrown out another phrase for our guidance — "capability id" meaningful life.''
Here, it may be, lies the heart of the matter. What it is appropriate for
the state to protect is not a human being, but a human being with the "capabil-
ity of meaningful life." Human life is defined in terms of this capability.
Qualitative standards of the life worthy of protection are to prevail, as
Joseph Fletcher is reported to have joyously greeted the decision. Our old
way of looking on all human existence as sacred is to be replaced by a new
ethic more discriminating in choosing who shall live and who shall die. The
concept of "meaningful life" is at the core of these decisions.
4. Who shall make the judgment that life has meaning or the capability
of meaning? On this key point, it is not. perhaps, unfair to suspect Justice
Blackmum of being an elitist, or, if one prefers, a technocrat.
The twin opinions breathe an extraordinary respect for the medical pro-
fession. Their explicit presupposition is that a "conscientious physician''
using his best professonal judgment — not "degraded" by having his judgment
reviewed by colleagues (Bolton, p. 16) — will determine whether the fetus shall
live or died. Turning the community's protection of human life over to the
judgment of the technician who will perform the operation. Justice Blackmum
goes so far as one judge could go to brin* about the technocratic Utopia BO
wittily and so unsparingly described in Brave New World.
226
A largo ironv of the opinions is this. The Fourteenth Amendment, made
;v by an earlier Supreme Court's attempt to make it legally impos-
Bible to protect the personal rights of a free hlack, is here made the source of
holdings which made it legally impossible to protect the personal rights of a
fetus. Forever denied the status of person "in the whole sense of the term,"
r subordinated to the psychological health of his mother, the baby in
imb has been deprived of the possibility of protection by state or fed-
eral law. It would be a waste of valuable energy to exert any effort at amend-
ing the abortion laws to achieve in the last two or three months of fetal
life the uncertain protection which the Court does not outalw.
major irony is that the Court's alternative authority for the right
to abort is the Ninth Amendment. This Amendment reads: "The enumeration
in the Constitution of certain rights, shall not lie construed to deny or dis-
parage otb.rs retained by the people." The people had already spoken on abor-
tion through the legislatures of fifty states. In Michigan and North Dakota.
crushing majorities of the people had. as recently as November 1972, re-
the demand that abortion be allowed on five-month-old fetuses. Who
would contend that what Justice Blackmum and his six colleagues legislated
could as law in Congress or in any popular referendum? How could
the rights of the people be more effectively "disparaged" by an elite than
veil members of a court to pronounce their efforts at controlling as-
saults on life to be unconstitutional?
These ironies suggest that the solution must be drastic. A majority which
will mock the people with the doctrines of technocratic elitism will not stay
its hand if confronted with new legislation not conforming to its sovereign
mandate. The root of the problem must be reached. Two lines of attack are
possible. They could be pursued concurrently:
First. The Court could be expanded from nine to 15. This solution could be
labeled "The Abraham Lincoln Solution." It is the idea he put forward in
the famous Lincoln- Douglas debates, when Douglas insisted that Dred Scott
was the law of the land. Douglas, he observed, had been one of five new
judges added to the Supreme Court of Illinois, "to break down the four old
ones." Was nut. he implied, a change in membership in the Court a constitu-
tional way of correcting a bad decision?
In many minds sensitive to the Court's place in our institutional structure
there must be reluctance to change the traditional number in response to a
particular decision. The "court-packing" plan of Franklin D. Rooseve't and
■i i ir opposition it engendered come to mind. Nonetheless, there is reason
why an expansion of the Court may he considered at this time as more than
an ad hoc answer to a decision. A committee appointed by the Chief Justice
himself (the "Freund Committee") has proposed that the Court be relieved
of many of its burdens by the creation of a national appellate for adjudication
by the Supreme Court itself. The plain implication of the proposal is that
nine justices are far too few to handle the enormous modern increase in the
Court's business. Expansion of the Court to 15 would meet this problem
directly without the disadvantage of bifurcating the functions of the highest
tribunal. Expansion can be rationally justified as a functional necessity at the
time that it affords a vehicle for restoring the rights of the people.
Expansion has a practical basis. Its political attractiveness does not need
underlining. It is, still, however a temporary response. It does not meet the
moral Issue at it- deepest level, it does not provide constitutional protection
for human life in the future.
The second possible course, then, is to follow the approach actually taken
' I Scott: Amend the Constitution. Under Wade and Bolton the
in never be a person within the Fourteenth Amendment, the people
can never vote (,, giV€ effective protection fo the fetus. Verv well, let the
I Pie defend the fetus by a new amendment.
people might go further. They might defend not only humans in the
but all nonviable humans— all humans threatened with possible classi-
fication as being lacking the "capability of meaningful life." The infant
offering from genetic deficiencies, the retarded child, the insane or senile
potential victims of a "quality of life" mystique could
be defended by a Human Life Amendment to our Constitution.
227
APPENDIX B
The Family and the Supreme Courtt
John T. Noonan, Jr.*
The Court and the Status of Marriage; A Progress in Three Phases
The Supreme Court's treatment of marriage is conveniently divided into
three phases — Phase One, in which the Court was the self-proclaimed
defender of Christian marriage; Phase Two, in winch the Court was the
creator of partial marriage; and Phase Three, in which the Court became
the upholder of no marriage.
Phase One began in the last quarter of the nineteenth century when the
Court first concerned itself to a substantial degree with marriage. This
was the era of the Mormon polygamy cases. This was the era when Chief
Justice Waite sounded precisely like his contemporary, Pope Leo XIII,
in declaring marriage to be "from its very nature a sacred obligation";1
when Justice Matthews echoed the Book of Common Prayer in saying hus-
band and wife are united "in the holy estate of matrimony";2 when Justice
Field upheld an Idaho statute against bigamy because "[bjigamy and polyg-
amy are crimes by the laws of all civilized and Christian countries";3
and when Justice Bradley sustained the forfeiture of the property of the
Church of Jesus Christ of Latter Day Saints because the organization of a
community for the practice of polygamy is "contrary to the spirit of Chris-
tianity and of the civilization which Christianity has produced in the West-
ern world."4 The last time these words of Justice Bradley were quoted
t Originally delivered as the Ninth Annual Pope John XXT1I Lecture, the Catho-
lic University Law School, October 19, 1973. The Law Review takes pride in publishing
Professor Noonan's in-depth study of the inferences that may be drawn from the recent
decisions of the Supreme Court. The author is indebted for comments to Jesse Choper,
Caleb Footc, and Paul Mishkin.
* Professor of Law, University of California, Berkeley; A.B., 1947 Harvard; M.A.,
1951; Ph.D., 1951 Catholic University of America; LL.B., 1954 Harvard.
1. Reynolds v. United States, 98 U.S. 145, 165 (1878); cf. Leo XIII, Arcanum
divinac sapienfiac, 12 Acta SANCTAr; SEDIS 385-88 (1880).
2. Murphy v. Ramsey, 114 U.S. 15,45 (1885).
3. Davis v. Benson, 133 U.S. 333, 341 (1890).
4. The Laic Corp. of the Church of Jesus Christ of Latter-Day Saints v. United
States, 136 U.S. 1, 49 (1890).
228
256 Catholic University Law Review [Vol. 23:255
with approval by the Court was 1946 by Justice Douglas, confirming the
conviction of certain fundamentalist Mormons as white slavers for marrying
more than one woman at one time.5
Phase Two occurred at the time of World War II and its aftermath when
the rapid rise in marital breakups put the greatest strain upon the formal
divorce law of the states. The Court in Williams Ir' upheld a Nevada divorce
for visitors to Nevada from North Carolina; permitted in Williams IP the
state of North "Carolina to show that the visitors were, after all, North
Carolina domiciliaries over whom Nevada had no jurisdiction and whom
North Carolina might prosecute for bigamy; let Connecticut in Rice v.
Rice* treat as a widow in Connecticut the former wife of a Connecticut
resident who had received a divorce valid in Nevada; decided in May v.
Anderson9 that a custody decree valid in Wisconsin would not bind one of
the parents who lived in Ohio; and held in Vanderbill v. Vanderbilt™ that
a divorce valid in Nevada and New York would not prevent an ex-Vander-
bilt spouse from obtaining a support order as a wife in New York.
The result of these decisions was that you could be free to marry in one
state and be liable in another to personal support of your former spouse,
stalulory claims on your estate, and prosecution for bigamy. You could
be entitled to your children in one court system and be denied your children
in another. You could be a somewhere wife or a somewhere husband. You
could be a husband who could not be a widower, a widower who could not
be a husband, a wife who could not be a widow, and a widow who could
not be a wife.11 Rice v. Rice prompted Justice Jackson to invoke Macbeth:
"Confusion now hath made his masterpiece."12 Vanderbilt v. Vanderbilt,
decided after fifteen years of wrestling with these issues, made Justice
Frankfurter exclaim the Court is "turning the constitutional law of marital
relations topsy-turvy."13 The Court had created divisible divorce, mobile
marriage, or, most accurately, partial marriage.
Phase Three is modern. It began in 1968 with Levy v. Louisiana.14
The Court held that a state may not discriminate against those born out of
wedlock in any action for the tortious death of a mother. In almost the
5. Cleveland v. United States, 329 U.S. 14, 19 (1946).
6 Williams v. North Carolina, 317 U.S. 287 (1942).
7. Williams v. North Carolina, 325 U.S. 226 (1945).
8. 336 U.S. 674 (1949).
9. 345 U.S. 528 (1953).
10. 354 U.S. 416 (1957).
11. Paraphrasing Justice Jackson in Rice v. Rice, 336 U.S. 674, 680 (1949) (dis-
senting opinion).
12. Id. at 676, quoting Macbeth, Act II, scene III, line 65.
13. Vandcibilt v. Vanderbilt, 354 U.S. 416, 425 (dissenting opinion).
14. 391 U.S. 68 (1968).
229
1973] Family and the Court 257
same breath, the Court held in Glona v. American Guarantee & Liability
Insurance Co. that a state may not discriminate against the mother in an action
for the tortious death of a child born out of wedlock.15 None of the justices in
the majority or in the minority drew any distinction between discrimination
against the child and discrimination against the mother.
Labine v. Vincent,™ decided in 1971, backtracked. The Court held
that a state might discriminate against a child born out of wedlock. The
state might deny him the right to inherit from the man who had publicly
acknowledged him to be his son. Justice Black declared:
There is no biological difference between a wife and a concubine,
nor does the Constitution require that there be such a difference
before the State may assert its power to protect the wife and her
children against the claims of a concubine and her children. The
social difference between a wife and a concubine is analogous to
the difference between a legitimate and an illegitimate child. One
set of relationships is socially sanctioned, legally recognized, and
gives rise to various rights and duties. The other set of relation-
ships is illicit and beyond the recognition of the law.17
The state's power to create and sanction discriminations based on marriage
was thus roundly asserted in terms the ninctecndi century Court would have
understood.
A year after Justice Black's opinion, the Court decided Weber v. Aetna
Casualty & Surety Co.16 Children adulterously born out of wedlock sought
compensation under a Workmen's Compensation Act for the death of their
father. Compensation was decreed, and the state statute barring it was invali-
dated. For the Court Justice Powell wrote, "The status of illegitimacy has
expressed through the ages society's condemnation of irresponsible liaisons
beyond the bonds of marriage. But visiting tJiis condemnation on the head
of an infant is illogical and unjust .... Obviously, no child is responsible
for his birth. . . . "19
The principle set out was large enough to condemn the discrimination
just approved in Labine. Conceivably, to avoid fraud, a state could still
set a high standard of proof of parentage for children born out of wedlock
when their asserted parent was dead. An absolute rejection of their rights
was irreconcilable with Weber. At the end of 1972, the Court affirmed
per curiam Ricliardson v. Davis.20 The Social Security Administration, by
15. Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73 (1968).
16. Labine v. Vincent, 401 U.S. 532 (1971).
17. Id. at 538.
18. 406 U.S. 164 (1972).
19. Id. at 175.
20. 409 U.S. 1069 (1972), affg 342 F. Supp. 588 (D. Conn. 1972).
230
258 Catfwlic University Law Review [Vol. 23:255
incorporating the state's inheritance laws, had put children born out of wed-
lock in a second class position for receiving social security benefits on tlieir
falhcr's death. The Court agreed with the District Court that the discrimina-
tion was unconstitutional. Per curiam the next month, January 1973,
the Court decided Gomez v. Perez.21 Texas gave children born in wedlock
a right to support from their fathers while it did not give children born out
of wedlock. The state, the Court said sweepingly, "may not invidiously dis-
criminate against illegitimate children by denying them substantial benefits
accorded children generally."22
The force of the Court's repudiation of injury to the children brought into
question statutory schemes ostensibly directed at the parents. Already in
1968, as a construction of the Social Security Act, the Court in King v.
Smith23 had invalidated Alabama's "man-in-the-house" rule. Alabama
and nineteen other states treated a man cohabiting with a child's mother as
a parent furnishing support. By this device these states denied the child
the status of a dependent child eligible for social security benefits. The
rule was found contrary to the federal Act. Congress, said Chief Justice
Warren, had "determined that immorality and illegitimacy should be dealt
with through rehabilitative measures rather than measures that punish
dependent children."24
In the wake of Weber and Gomez, the approach taken in King became,
in May of 1973, a matter of constitutional law. The New Jersey Family
Assistance Program for the working poor provided that benefits should be
paid only to married persons with children who were born in wedlock or
with children who were legally adopted. The purpose of this restriction,
as found by a three judge federal court, was "to preserve and strengthen
traditional family life."26 Testimony showed that "a family structure based
on ceremonial marriage could provide norms and prevent anomie,"20 said
Judge Fisher for this court. The strengthening of family life appeared to be
a legitimate legislative end to Judge Fisher. Withholding benefits to en-
courage marriage appeared a rational way of achieving the end.27 In New
Jersey Welfare Rights Organization v. Cahill2* the Supreme Court summarily
reversed.. Judge Fisher's findings of lawful purpose and rational means
21. 409 U.S. 535 (1973).
22. Id. at 538.
23. 392 U.S. 309 (1968).
24. Id. at 325.
New Jersey Welfare Rights Organ, v. Cahill, 349 F. Supp. 491, 496 (D.N.J.
1972).
26. Id.
27. Id. at 497.
28. 93 S. Ct. 1700 (1973).
231
1973] Family and the Court 259
were treated as irrelevant. Per curiam, the Court said it was the child born
out of wedlock who was being penalized. Children could not be treated
unequally by the state. The Court had now extended protection of the child
to the point of rejection of marriage in the definition of a family.
Levy, Weber, Richardson, and New Jersey Welfare Rights Organization
all focused on the rights of children. All were dealt with by the Court un-
der the rubric of Equal Protection. In Eisensladt v. Daird,20 at stake were
the sexual rights of the unmarried pubescent and their unmarried elders.
Before the Court was a Massachusetts statute on the distribution of contra-
ceptives, restricting them to the married. Equal Protection was again in-
voked.
The "plain purpose" of the statute, Chief Justice Rugg of Massachusetts
had said of its unamended form in 1917, was "to protect purity, to
preserve chastity, to encourage continence and self-restraint, to defend the
sanctity of the home and thus to engender in the state and nation a virile
and virtuous race of men and women."30 The purpose of the statute, as
Justice Reardon of the Supreme Judicial Court of Massachusetts, had said
of its amended form in 1970, was to protect morals througli "'regulating
the private sexual lives of single persons."31 Sustaining the statute in
1917, Chief Justice Rugg spoke like Cardinal Mercicr and the bishops of
Belgium, his contemporaries, giving the reasons for the Catholic ban on
contraception. Sustaining the statute in 1970, Justice Reardon spoke like
some contemporary Catholic apologists giving a reason for the same ban.
Speaking in 1972 for the Court, Justice Brennan saw no validity in these
purposes. "[Wjhatcver the rights of the individual to access to contracep-
tives may be," Justice Brennan said "the rights must be the same for the
unmarried and the married alike."32 The right of the unmarried to be
treated like the married in a sexual matter of this character flowed from the
equal protection clause. Consistent with that clause, Justice Brennan said,
the state could not "outlaw distribution to unmarried but not to married
persons."33
Eisenstadt also provided occasion for the Court to turn upside down the
right of privacy it had discovered in the Constitution in Griswold v. Connect-
29. 405 U.S. 438 (1972).
30. Commonwealth v. Allison, 227 Mass. 57, 62, 116 N.E. 265, 266 (1917); cf.
Instructions des Evequcs de Belgique sur I'onanisme, 41 Nouvelle revue theologiqub
616-22 (1909).
31. Sturgis v. Attorney General, 358 Mass. 37, 260 N.E.2d 687, 690 (1070);
cf. A. ZIMMERMAN, CATHOLIC VIEWPOINT ON OVER-POPULATION 148 (1961).
32. Eisenstadt v. Baird, 405 U.S. 438, 453 (1965).
33. Id. at 454.
232
260 Catholic University Law Review [Vol. 23:255
icut.3* In GrisM-old a Connecticut statute prohibiting the use of contra-
ceptives had been found to invade the privacy of married couples. In
Eisenstadt, Justice Brennan said: "If the right of privacy means anything,
it is the right of the individual, married or single, to be free from unwar-
ranted governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear to beget a child."35 Justice Bren-
nan went out of his way to deny the legal metaphor, founded on the religious
metaphor in Genesis, that man and wife are one flesh: ". . . the marital
couple," he said, "is not an independent entity with a mind and heart of its
own . . . ."36 Equal, but separate, each person had a constitutional right
to procrcative privacy.
In dissent in Eisenstadt, Chief Justice Burger referred to the right to
privacy's "tenuous moorings to the text of the Constitution."37 But it was
the doctrine of Justice Brennan which was followed in the Abortion Cases,
Roe v. Wade38 and Doe v. Bolton.39 The right to an abortion was founded
on the right to privacy said to be located in the ninth or fourteenth amend-
ment. No distinction was drawn between the unmarried plaintiff Jane Roe
and the married plaintiff Mary Doe.40
Unarticulated considerations of policy could explain the Court's actions
so far reviewed. The cases involved either illegitimacy or birth control.
Illegitimacy has been proportionately higher among non-whites than whites.41
Lines drawn on the basis of legitimacy could be viewed as a sophisticated
form of racial discrimination. The Court could have felt that it realistically
extended the constitutional prohibition of racial discrimination in striking
them down. Restrictions on methods of birth control prevent expeditious
curtailment of population growth.42 The Court could have felt that the
new pressures of population justified the making of new constitutional re-
quirements. That a policy of restricting population conflicts with a policy
of not penalizing illegitimacy need not have prevented the Justices from
riding first one horse and then the other. These factors of policy may ac-
34. 381 U.S. 479 (1965).
35. 405 U.S. 438, 453 (italics in original).
36. Id.
37. Id. at 472 (dissenting opinion).
38. 410 U.S. 113 (1973).
39. 410 U.S. 179 (1973).
40. See Roc v. Wade, 410 U.S. 113, 125 (1973) and Doe v. Bolton, 410 US. 179.
187(1973).
41. U.S. Bureau of the Census. Statistical Abstract of the United States:
72. Taihi 66: Illegitimate Live Births By Race and Age of Mothers 1940-
al 51. Interestingly, the illegitimacy rates for non-whites have been decreasing
Mncc 1960, while the rate for whites has increased steadily. The non-white rates
however, remain many times greater because of the initial disproportion
mission on Population Growth and the American Future, Population
am. THE Amijucan Iuture 172-73 (paperback cd. 1972)
233
1973] Family and the Court 261
count in part for the Court's approach. They do not explain why the Court
has gone as far as it has in its two most striking refusals to acknowledge
marriage as a permissible legal criterion.
In Stanley v. Illinois,43 decided in 1972, Peter Stanley had lived inter-
mittently with Joan for eighteen years and had had by her three children
whom he did not adopt. When she died, he put the children with foster
parents. No one was legally responsible for the children. The state moved
to have a guardian appointed. Stanley contended that he was his children's
natural guardian and, like a lawful father, could not be supplanted without
a hearing in which his unfitness to continue had been demonstrated. The
Court sustained his position. Both Due Process and Equal Protection re-
quired that he be given a hearing. The state, Justice White wrote, was
bound to give recognition through a hearing to "[t]hc private interest,
that of a man in the children he has sired and raised."44 The state was
bound not to discriminate between married fathers and unmarried fathers
in giving a right to a hearing. Chief Justice Burger, in dissent, protested that
the Constitution was not violated if Illinois recognized the father-child rela-
tionship only "in the context of family units bound together by legal obliga-
tions arising from marriage or from adoption proceedings." His dissent un-
derlined the significance of the Court's holding. In Glona the unmarried moth-
er had been given the relatively limited rights in tort of a married parent.
In Stanley, the unmarried father was accorded the essential position of a
married parent in the retention of his children.
The most recent of these decisions treating marriage as a constitutionally
impermissible category is the second Foods Stamps Case, United States De-
partment of Agriculture v. Moreno.45 Congress, in 1971, had amended the
Food Stamp Act to exclude from its benefits unrelated individuals under the
age of sixty living together as a household.46 The Conference Committee Re-
port of the bill said the idea was to prohibit assistance to "communal 'fam-
ilies' of unrelated individuals." Related individuals, the Committee said de-
liberately, were married spouses, blood relatives and other legally related
persons such as adopted children and foster children.47
Judge McGowan, speaking for a three-judge court in the District of Col-
umbia, found the exclusion unconstitutional. The purpose for it advanced
by the government had been the promotion of morality — the sexual moral-
ity premised on marriage. "Recent Supreme Court decisions," Judge Mc-
43. 405 U.S. 645 (1972).
44. Id. af 651.
45. 345 F. Supp. 310 (D.D.C. 1972).
46. Pub. L. No. 91-671, § 2(a) (Jan. 11, 1971) amending 7 U.S.C. 2012(c) (1964).
47. H.R. 91-1793, 91st Cong., 2nd Sess. (1970).
234
262 Catholic University Law Review [Vol. 23:255
Gowan said, "make it clear that even the states, which possess a general
police power not granted to Congress, cannot in the name of morality in-
fringe the rights to privacy and freedom of association in the Jwmc."iS
Judge McGowan was right in his reading of the recent opinions of the
Court. Sustaining the decision and adopting much of Judge McGowan's
language, Justice Brcnnan noted with apparent satisfaction that the govern-
ment had on appeal abandoned the justification of the statute as promotive
of sexual morality.'19 The government was left with the barely credible
argument that the statute's purpose was to discourage fraud. Justice Bren-
nan exhibited the same impatience as Judge McGowan with a law which
made marriage the test of eligibility for a benefit from the state. A heart
of stone would have been touched by the carefully-selected plaintiffs: a
56-year old diabetic on welfare sharing a home with another woman and
her three children; a mother of three who had charitably taken in a 20-year-
old girl with emotional problems; a mother on welfare with a deaf daughter
living with another woman in order to be near an institution for the deaf.
These persons and those similarly situated could have been aided by con-
struing the statutory exclusion to restrict it to those cohabiting with a sexual
purpose. For an unexplained reason Judge McGowan and Justice Brennan
thought sexual cohabitation would have been meant only if Congress had
spoken of the persons living together as persons of different sexes. Without
exploration of the statute's rationale, Justice Brennan held that the classifi-
cation Congress had created was condemned by the Equal Protection
Clause. The classification was condemned, Justice Brennan said, because
it was "wholly without any rational basis."50 The third phase of the Court —
the phase of the Court obliterating the difference between marriage and
no marriage — was well advanced.
Marriage: A Legal Creation With
Discriminatory Consequences
If the Court's teaching of the last two terms is reviewed, the following prop-
ositions emerge: Neither Congress nor the States may deny to children
born out of wedlock substantial rights which are given to children born in
wedlock.61 Neither Congress nor the States may deny to unmarried per-
4R. Moreno v. U.S. Dcp't of Agriculture, 345 F. Supp. 310, 314 (D.D.C. 1972).
United Stales Dcp't of Agriculture v. Moreno, 93 S. Q. 2821, 2826, n.7
50. Id. at 2827.
5 J. Gomez v Perez, supra note 21; New Jersey Welfare Rights Organ, v. Cahill,
supra noic 28; Levy v. Louisiana, supra note 14; Weber v. Aetna Cas. & Ins. Co.,
supra note 18.
235
1973] Family and tlie Court 263
sons living with their children substantial rights which are given to married
persons and their children." Neither Congress nor the States may deny
to unmarried men substantial rights in relation to their children which are
given to married men in relation to their children/'3 Neither Congress nor
the States may deny to women, married or unmarried, the right to decide
whether to conceive or to bear a child." Neither Congress nor the States
may withhold benefits which are given to the married from the unmarried."
These are the commands of the fifth, ninth, or fourteenth amendments to
the Constitution/6
These propositions are taken from the cases. They do not go as far as to
state the implications of the holdings, such as the inference that if the deci-
sion to procreate is beyond interference of the state, so must be the deci-
sion to have sexual intercourse. Marshalled together and baldly stated,
the propositions have a generality which goes beyond the cases. The opin-
ions are mired in contexts of facts and particular issues of policy. The
general propositions helped to resolve the cases, but they may not stand
apart from them. Logic is often drawn up short by countervailing pressure
and iong-estabiished compromise. Carl McGowan, it might be said, did
not mean that the Supreme Court would hold that any statute which based
benefits on marriage denied freedom of association in the home. Willirm
Brennan, it might be added, did not mean that all sexual rights of the mar-
ried were indistinguishable from those of the unmarried. Judge McGowan
was speaking of food stamps, Justice Brennan of food stamps and contra-
ceptives. Neither really had grand principles in mind. The customary
privileges of marriage are anointed by custom so that they are beyond as-
sault in the name of the Constitution.
Constitutional law, however, exists only by virtue of general principles
discernible in the Constitution and, once discerned, not easily restricted to
special contexts. Having decided cases in such a way that the propositions
52. New Jersey Welfare Rights Organ, v. Cahill, supra note 28; cf. King v. Smith,
supra note 23.
53. Stanley v. Illinois, supra note 43; Glona v. Am. Guar., supra note 15.
54. Doe v. Bolton, supra note 39; Roe v. Wade, supra note 38.
55. U.S. Dcp't of Agriculture v. Moreno, supra note 49.
55. United States Ucp't of Agriculture v. Moreno, supra note 49.
56. Fifth Amendment: United States Dep't of Agriculture v. Moreno, supra note 49;
Ninth Amendment: Roe v. Wade, supra note 38 and Doc v. Bolton, supra note 39;
Fourteenth Amendment: Levy v. Louisiana, supra note 41; Glona v. American Guar, k
Liab. Ins. Co., supra note 15; Weber v. Aetna Cas. & Ins. Co., supra note 18; Richardson
v. Davis, supra note 20; Gomez v. Perez, supra note 21; New Jersey Welfare Rights
Organ, v. Cahill, supra note 28; Eiscnstadt v. Baird, supra note 32; Roc v. Wade, supra
note 38; Doe v. Bolton, swprc note 39; Stanley v. Illinois, supra r.ctc <13; United States
Dep't of Agriculture v. Moreno, supra note 49.
236
264 Catholic University Law Review [Vol. 23:255
may be framed, how would the Court explain the traditional general dis-
criminations in favor of the married?
Consider as the most obvious example, section 1 of the Internal Revenue
Code which taxes every individual "who is not a married individual" dif-
ferently from "every' married individual." The distinction normally works
to benefit the married making a joint return. Other sections of the Code
openly operate in their favor — section 151 giving a personal exemption for
a spouse and an additional exemption for a blind spouse; section 213 per-
mitting deductions for a spouse's medical care; section 2056 subtracting a
spouse's share from a decedent's gross estate; section 2523 substracting a
spouse's share from a donor's gift; section 215 permitting a husband to
deduct alimony.67 If the married and the unmarried must be treated alike
in the distribution of contraceptives, can Congress rationally distinguish be-
tween them in the distribution of tax burdens? If to withhold food stamps
is to interfere with privacy or the constitutional freedom of association in
the home, why is there not as great an unconstitutional abridgment of free-
dom in the withholding of tax advantages from the unmarried? When the
Court in 1916 sustained the distinction between the married and the un-
married in the income tax law, the difference between these classes was
apparent on their face — the Court did not bother to discuss the difference;
it dismissed the distinction in an "etc., etc."r'8 In the light of the decisions
of the last two years, would two etceteras make the difference evident, or
is differential treatment "wholly without any rational basis"?
Suppose it be said that, in structuring the income tax, the power of Con-
gress is practically plenary, and it can make virtually as many distinctions
as it chooses, the entanglements of common law and general statutes with
the institution of marriage must still be justified. From property law on
community property, dower, curtesy, and tenancy by the entirety to the
testimonial privilege of excluding a spouse's evidence, legal benefits have
been attached to being married. From the right to support from a spouse
to the right to alimony from a divorced spouse, special privileges have gone
with the married state. Must these benefits and rights be extended to
those who, although unmarried, are realistically in a position comparable
to spouses, under pain of denying the. unmarried the equal protection of
the law, the liberty of association, and the right of privacy?
The law not only discriminates in favor of the married. It creates the
discriminatory category. Sex, age, race — these arc categories which physi-
cal characteristics determined before the law responded to them. Being
57 CODE of 1954, §5 I, 151, 213, 215. 2056, 2523.
58. Unishnbcr v. Union Pac. R.R., 240 U.S. 1, 25 (1916).
237
1973] Family and the Court 265
married is a status constituted by the law. In the flux of human behavior
the law has marked out certain acts and attached certain consequences to
them. To perform the acts marked out is to become married. To become
married is to enter a state with legal consequences attached. Can the law
create the category and attach the consequences without infringing on sex-
ual privacy, freedom of association in the home, and the equality of indi-
viduals before the law?
To ask these questions may appear to call for an answer too obvious to
argue. As sexual association takes a variety of quasi-permanent forms, so,
it may be said, should the legal definition of marriage be extended and the
benefits which once flowed from a ceremonial exchange of consent be-
tween one man and one woman be those of any pair or any combination of
persons who elect to share a common life. The unique legal privileges of
heterosexual monogamy, it may be concluded, are constitutionally obsolete.
If this obvious answer is correct, it must be given in the name of the Con-
stitution. It would be good to understand the constitutional basis for it.
The Mystic-Moral Character of Marriage
Equal Protection is the rationale chosen by the Court for many of its deci-
sions— Levy, Glona, Weber, Richardson, Gomez, Eisenstadt, Stanley, New
Jersey Welfare Rights Organization and the second Food Stamps Case.
Equal Protection is rightly considered die weakest of constitutional grounds.50
Government acts by making distinctions in roles, in benefits, in burdens.
Unless you suppose you are governed by idiots, you will suppose that there
is usually a governmental reason for the distinction made. Unless you are
hostile to the basis for the distinction, you can usually discover what the
reason is.
The Court in its third phase has been peculiarly blind to the reasons which
led Congress or the States to adopt measures whose effect is to benefit the
married. An extreme example is the second Foods Stamps Case where Jus-
tice Brennan characterized congressional legislation as "wholly without any
rational basis," and culled from the Congressional Record a remark of
Senator Holland about "hippie communes" to explain the Food Stamp
Act exclusion while overlooking the Conference Committee's clear expres-
sion of intention to prefer the married.60 In less extreme form, insensitivily
59. Buck v. Bell, 274 U.S. 200, 208 (1927); compare the critique of Eisenstadt
in Gunthcr, The Supreme Court, 1971 Term— Foreword: In Search of Evotvin
trine on a Chanpjnp Court: A Model for a Newer Equal Protection, 86 HARV. L. REV.
1, 34-35 and 48 (1972).
60. U.S. Dcp't of Agriculture v. Nforcno, 93 S. Ct. 2821, 2826, citing 116 Cong.
Riic. 44439 (1970).
238
266 Catholic University Law Review [Vol. 23:255
to legislative intent pervades Eisenstadt and Stanley.
The law did not suddenly in 1971 begin to treat the married and the un-
married unequally. The law had always done so. If the Court now in-
vokes the Equal Protection Clause, it is because the Court has come to feel
that the traditional inequality is intolerable. Why that inequality is now
felt to be intolerable is not be to explained by the Equal Protection Clause.
Privacy does not offer a better explanation of the Court's position. When
the constitutional right to privacy was first announced in Griswold in 1965 —
located in Justice Douglas' expressive phrase, in the "penumbra" of several
Amendments — it was a right to marital privacy.61 The state could not pro-
hibit the use of contraceptives because the state could not invade what were
described as "the sacred precincts" of the marital bedroom.62 The right
of privacy was an offshoot of the holiness of marriage. The opinion of the
Court, delivered by William O. Douglas, ended with a tribute to the institu-
tion. "Marriage," he wrote, "is coming together for better or worse, hope-
fully enduring, and intimate to the degree of being sacred."63 It was the
marital association, older than the Bill of Rights he accurately observed,
with which the state could not tamper.
How quickly marital privacy became procreative privacy. How re-
markably a right flowing from the institution of marriage became a barrier
to the fostering of the institution. With what peculiar intensity William
Brennan declared that if the right "means anything," it means the right of
"the individual, married or single," to decide whether to bear or beget a
child.64
The swift seven year evolution of a liberty so recently proclaimed and so
vaguely located suggests that privacy is not at the heart of the Court's con-
stitutional progress. Sexual intercourse and its consequences have been per-
ceived by every earlier generation as social. The imperfect contraceptive
technology of the present has not made intercourse less social in its effects
upon the persons engaging in it or upon the persons conceived through it.
If the Court now sees it as peculiarly private and, therefore, peculiarly ex-
empt from social control, the reason is not to be found in the category the
Court imposes on it. Why private? In the answer to this question may he
the basis for the Justices' new position.
The answer may he in the mythic-moral character of marriage. By
mythic I mean ideas, non-demonstrable but not necessarily untrue of the
61. Griswold v. Connecticut, 381 U.S. 479, 483-84 (1965).
62. Id. at 485.
63. Id. at 486.
64. Eist-iisladi v. Baiid, 405 U.S. 438, 453 (1972).
239
1973] Family and the Court 267
nature of the cosmos in relation to the destiny of man. By moral I mean
prescriptions for human conduct in terms of a good. In primitive societies,
Mircea Eliade says, the stories of the sexual life of the gods project the
societies' view of the cosmos; at the same time they provide paradigms of
sexual conduct for human beings.65 In monotheistic Israel, Yahweh was a
jealous husband who demanded the fidelity in monogamous marriage of
his chosen bride, Israel.66 In the Christian community, Christ was the monog-
amous, faithful husband of his bride, the Church.67 The paradigm was that
of male to female, female to male fidelity, in a fruitful union of perduring
character. Marriage in Europe was given a legal structure corresponding
to the paradigm.68
Until the American Revolution in America, and until still later in Eng-
land, marriage was created, ruled, and ended in accordance with ecclesiasti-
cal law. When secular courts adopted this religious institution, the adjust-
ments were often awkward and inconsistent. The doctrines of recrimination
and condonation in divorce law are notorious examples.60 The institu-
tion survived. Eighteenth century rationalism and nineteenth century ag-
nosticism did not attack it. Challenges such as the Mormons' polygamy
were local and squashablc. The consensus was broad. Division of opin-
ion on divorce appeared to be an exception, but divorce itself was a ca-
nonical term; the functional dissolubility of marriage was established in the
Catholic Church before the Reformation.70 In practice, Protestants permit-
ted divorce without welcoming it,71 and Catholics frowned upon it while co-
operating in it as lawyers and judges.72 The ideal of husband and wife
united for life in a fertile union was general. A Connecticut Yankee like
Chief Justice Morrison Waite could sound like Pope Leo XIII; a Massachu-
setts Puritan like Chief Justice Charles Rugg could speak like Cardinal Desire
Mercier and the bishops of Belgium.
65. M. Eliade, Cosmos and History: The Myth of the Eternal Return 23-
27 (W.R. Trask transl. 1959); cf. M. Eliade, Mephistopheles and the Androgyne:
Studies in Religious Myth and Symbol 206-07 (J.M. Cohen transl. 1965).
66. Isaiah 54:5-8.
67. Ephesians 5:22-32.
68. See Noonan, Power to Dissolve: Lawyers and Marriages in the Courts
of the Roman Curia xvii-xviii (1972) [hereinafter cited as Power to Dissolve].
69. See Foote, Levy, and Sander, Cases on Family Law 649-57 and 665-70
(1966).
70. Power to Dissolve 130-31.
71. E.g., Holyoke v. Holyoke, 78 Me. 404, 411, 6 A. 827, 828 (1886): Remove
the allurements of divorce at pleasure, and husbands and wives will the more zealously
strive to even the burdens and vexations of life, and soften by mutual accommo-
dation so as to enjoy their marriage relation."
72. £..1?., Chief Justice Edward D. White, a Catholic, wrote the majority opinion
in Haddock v. Haddock, 201 U.S. 562 (1906), premised on "the inherent power which
all governments must possess over the marriage relation, its formation and dissolution
. . . ." Id. at 569.
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268 Catholic University Law Review [Vol. 23:255
In the last half century, the consensus weakened and, in the last decade,
disappeared. Under the combined pressures of the ideologies of popula-
tion control and women's liberation the orientation of marriage to procrea-
tion was questioned. Hie marriage contract in a state such as California
became less than any other contract: terminable, without penalty, at the
option of either party.73 A basic rift developed between Catholics, con-
servative Protestants, Orthodox Jews, on the one hand, and religious liberals
and secular agnostics, on the other, over family planning and population
control by means of abortion.74 The notion that a paradigm based on the
relationship between Christ and the Church should inform American law
would now be incomprehensible to most Americans.
In response to the shattering of the consensus the Court has rejected dis-
crimination between the married and the unmarried. The decisions of the
last two terms are another chapter in the history of disestablishment, an-
other milestone, their champions would say, for religious liberty. They are
not explicable by the barren formula of Equal Protection. They are not
dictated by the new and shapeless right to privacy. They are anchored, ac-
cording to this analysis, in the most enduring of American constitutional
traditions, the separation between religious orthodoxy and civil government.
It is no accident that Justice Brennan in Eisenstadt rejects the legal meta-
phor for the married based on Genesis. The covert religious assumptions
underlying the old consensus have made civil support for marriage intoler-
able. The state, it is concluded, must leave the field; each person is to be
free to make his or her own sexual style as he or she is free to make his or
her own religion.75
Marriage and Family: A Distinction Witfwut Historical Difference
This explanation of the third phase — the last phase, so it seems — encoun-
ters one snag: the existence of decisions too recent, too magisterial, and
too rooted in experience to be regarded as obsolete, and yet entirely con-
trary to the line of analysis advanced. The words approvingly quoted by
William Douglas in 1946 in Cleveland on the barbarous un-Christian char-
acter of polygamy have an atavistic sound. The words of Hugo Black in
1971 in Labine on the social difference between a concubine and a wife
have the flavor of the ante-bellum South.7" The words of Earl Warren in
73. The Family Law Act, Cal. Civil Conn, S§ 4506-4507 (West 1970).
74. Compare the positions in Tun Morality of Abortion, (J. Noonan cd. 1970)
and AnoHTioN and tup Law, (D.T. Smith ed. 1967).
75. Compare the analysis of the Abortion Cases in Tribe, The Supreme Court, 1972
Term— Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87
Hakv. L. RCV. 1 (!*;73).
76. Cleveland v. United State, 329 U.S. 14, 19 (1946); Labine v. Vincent, 401
241
1973] Family and the Court 269
Loving v. Virginia11 and the words of John Harlan in Doddie v. Connecti-
cut1*, however, cannot be so irreverently dismissed.
In Loving, in 1967, the Court, after avoiding opportunities for a century,
finally ruled that the statute of a state forbidding a black person to marry a
white person was unconstitutional. The statute was unconstitutional be-
cause the racial classifications violated the Equal Protection Clause.79 The
statute was also unconstitutional on another ground which Chief Justice War-
ren put as follows: Marriage is "one- of the 'basic civil rights of man,' funda-
mental to our very existence and survival. The freedom to marry has long
been recognized as one of the vital personal rights essential to the orderly
pursuit of happiness by free men."80 The right to enter lawful matrimony
could not be arbitrarily restricted because marriage was among the most
important of secular liberties.
In Boddie, in 1971, the Court considered the petition of welfare recip-
ients who found the $75 set as court fees for a divorce action in Connecticut
more than they could pay. The Court eliminated the fees for persons in
their circumstances. Divorce, Justice Harlan wrote, was "the exclusive pre-
condition to the adjustment of a fundamental human relationship."81 When
the means of obtaining it was denied to the poor, due process of law was
denied. The central assumption of the decision was. as John Harlan ex-
pressed it, "the basic position of the marriage relationship in this society's
hierarchy of values .... :'82
Loving-Doddie reflect no doubt in the durability of marriage as specifi-
cally shaped by law. They take marriage as an institution which is entered
through the law, which is a privileged status created by the law. No one
reading these opinions could suspect that Richard and Mildred Loving or
Gladys Boddie had an alternative they might successfully have pursued —
to have asked the Court to abolish the invidious denial of Equal Protection
to the unmarried and to invalidate the stale's recognition of marriage. In
Doddie, marriage according to law is a fundamental human relationship;
in Loving, marriage according to law is a vital personal right.
Loving-Doddie gave cognizance to the hunger for lawful marriage of
persons denied the possibility of entering it by law. Has that hunger van-
ished in the six years since Loving or in the two years since Doddie! Are
U.S. 532, 53S (1971).
77. 388 U.S. 1 (1967).
78. 401 U.S. 371 (1971).
79. 388 U.S. 1, 12 (1967).
80. Id., quoting from Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).
81. 401 U.S. 371, 383 (1971).
82. Id. at 374.
242
270 Catholic University Law Review [Vol. 23:255
not the cxlcnsivc use of poverty lawyers to obtain divorces and the increase
of divorce itself paradoxical proof of the American determination to find
happy stable centers for personal existence in lawful marriage?83 Do
not Roger Traynor's words in DeBurgh v. DeBurgh** a California divorce
case decided in 1957, still i effect this society's experience:
The family is the basic unit of our society, the center of the per-
sonal affections that ennoble and enrich human life. It channels
biological drives that might otherwise become socially destructive;
it ensures the care and education of children in a stable environ-
ment; it establishes continuity from one generation to another; it
nurtures and develops the individual initiative that distinguishes a
free people.85
It may be objected that the words apply to the family, not marriage. The
two institutions may be distinguished. Justice White in Stanley v. Illinois
makes that distinction. Equating married and unmarried fathers, he in-
sists on the Court's continuing solicitude for the family. He declares the
Court's respect for "the integrity of the family unit." He sees no inconsis-
tency in enlarging this respect to "those family relationships unlegitimated
by a marriage ceremony."80 In Stanley the family constituted by law and
the family constituted by biology are treated together. The family is viewed
as a legal institution distinct from marriage.
Such a view incorporates a profound misreading of the history of our
society. We do not know the family except as formed by marriage or as
formed in incomplete imitation of the form shaped by law. Without mar-
riage, created by law, acknowledged by law, privileged by law, the family
is a formless biological blob. Roger Traynor ends his description of the
basic social unit: "Since the family is the core of our society, the law
seeks to foster and preserve marriage."87 He spoke from American ex-
perience. Appealing to an older and wider experience, Pope John XXIII
spoke similarly in 1960: Marriage is "the greatest and most precious
good of social life."88
What is the value of such testimony to the place of marriage from Pope
John or Chief Justice Traynor or Justice Harlan or Chief Justice Warren? I
do not invoke their words in this context as religious or judicial authority,
83. Cf. T. Linz, Tin: Person at 389 (196S).
84. 39 Cal. 2d 858, 250 l\2d 598 (1952).
.1. 2d S5S, 863-64, 250 P.2d 598, 601 (1952).
Stanley v. Illinois, 405 U.S. 645, 651 (1972).
87. 39 Cal. 2d 858, 864, 250 P.2d 598, 601 (1957).
88. John XXIII, The Holiness of Marriage and the Christian Family, Allocution
m the Auditors of the Sacred Roman Rota, October 25, I960, 52 Acta Apostolicae
243
1973] Family and the Court 271
nor do I cite them for their originality of insight or depth of research. Public
statements by public men run the risk of derision as platitudes. Yet made
by thoughtful persons with broad experience, addressed precisely to the
subject before them, stating perceptions they know arc shared by their
audience, public utterances may be better guides to social experience than
the fragile hypotheses of sociological investigators. Such is the case with
these statements on marriage of Warren, Harlan, Traynor, and Roncalli.
Unselfconsciously they state what they know to be true in their experience,
in their observation, in their interpretation of human interactions. They
state it knowing that the men and women to whom they speak will acknowl-
edge it as true from their own experience.
The human experience assumed and compressed in these evaluations of
marriage cannot be disqualified — thrown, as it were, out of court — by show-
ing that marriage in America was the reflection of an ecclesiastical para-
digm, the offshot of an ecclesiastical system. The survival of Sunday clos-
ing hours provides a tame analogy — that the command to worship without
working is one of the Ten Commandments, that the seventh day has a basis
in Genesis, that Sunday has a relation to the Resurrection have not im-
paired the laws' secular validity; Justice Douglas to the contrary, the evi-
dent religious parentage of the laws has not made them unconstitutional.89
More fundamentally, the authority of the courts as oracles of justice, the
sovereignty of government as a power ordained by God, the sanctity of the
human person as created in the image of God— all these vital presupposi-
tions of our system of law — have religious roots, all express mythic-moral
perceptions. To suppose that they have constitutional validity, while
marriage does not, because they have been and are beyond controversy,
would be to show little knowledge of contemporary pessimism and less
knowledge of the deepest cleavage in the American past.00
Constitutional Judgments In Family Law:
An Unsettled Realm
Recent as the most radical decisions are, they are scarcely the work of "the
Burger Court," if by that term one means a Court shaped by its Chief Jus-
tice. The authorship of the decisions has cut across conventional politi-
cal and ideological lines— Justice Douglas delivering the opinion in Glona,
Justice White in Stanley, Justice Brennan in Eisenstadt and the Food
89. McGowan v. Maryland, 366 U.S. 420 (1961); Braunfcld v. Drown, 366 U.S.
599 (1961) In dissent in McGowan, Justice Douglas observed that "the parental
of these laws is the Fourth Commandment; and they serve and satisfy the religious
predispositions of our Christian communities." Id. at 572-73 (dissenting opinion)
90 Sec Died Scott v. Sandford, 60 U.S. (19 How.) 393, 403 and 576 (1857).
244
272 Catholic University Law Review [Vol. 23:255
Stamps Case, Justice Blackmun in Roe and Doe. In Eisemtadt, Stanley,
and Ihe Food Stamps Case the Chief Justice was in open dissent. In the
Abortion Cases his concurrence was directed to moderating the sweep of
the Court's opinion.111 The absence of unanimity in the Court, the failure of
Hie opinion writers to convince the Chief, the contradiction between the
generalizations in the recent opinions and GrisM'old, Labine, Loving, and
Boddic all suggest that a definitive rationale for constitutional judgments in
the realm of family law has not been setUed.
The decisions invalidating discrimination against children may be ex-
plained widiout resort to Equal Protection, the right of privacy, or the rele-
gation of marriage to the status of a suspect mythic-moral category. They
rest on a simple principle of generality. The principle is that A may not be
punished for the act of B without denying A due process of law. This de-
mand of elementary justice is part of the meaning of the fifth and fourteenth
amendments.
Notions of family solidarity and the corporate clan obscured the principle
for centuries in relation to children. The Old Testament view that the
father's sins are rightly visited on the sons and the New Testament
view that sin is inherited made Western minds complacent with the injus-
tice.02 The more basic notions in Jewish-Hellenic Cluistianity of per-
sonal salvation and personal responsibility worked against this coalescence
of children with their parents. King Lear is not a celebration of the nobil-
ity of those born out of wedlock, but when Edgar asks: "Why bastard?
Wherefore base, When my dimensions are as well compact, My mind as
generous, and my shape as true, As honest madam's issue?"93 Who in our
culture has not been on his side? The gradual evisceration of the old bas-
tardy discriminations testified to the triumph of the ideal of personal respon-
sibility. The legal principle outlawing all injuries to the innocent child has
now been comprehensively stated by Lewis Powell.04 The principle that
the child is not accountable for the parents' act will explain Levy, Weber,
Richardson, Gomez, and, on the Court's reading of the facts, New
Jersey Welfare Rights Organization. With Edgar we may rejoice: "Now,
gods, stand up for bastards."05 The Court has done so.90
91. Roc v. Wade, 410 U.S. 113, 165.
92. Exodus 21:5; Rowans 5:10-21.
93. King Lear, Act I. scene II, lines 6-9.
94. Weber v. Aetna C as. & Stir. Co., 406 U.S. 164, 175 (1972).
95. Kitif! I^rar, Act I, scene II, line 22.
96. Since the delivery of Ihe Pope John XXIII lecture, the United States Court of
Appeals, 5lh Circuit, decided Weinberger v. Bcty, 478 F.'2d 300 (1973), Certiorari
I which extended Social Security disability benefits to il-
legitimate children without pioof that the wage earner actually supported the children.
245
1973] Fcunily and the Court 273
Glona, Stanley, Eisenstadt, the second Food Stamps Case, Roe, and Doe
are not justified by a principle of elementary justice. They arc not ex-
plicable by the invocation of Equal Protection or the right of privacy.
They cannot be explained by viewing marriage as an impermissible religious
category, when marriage has social purpose in our society. They are, then,
wrong — wrong in using the Equal Protection Clause on behalf of the un-
married parent and the unmarried spouse, wrong in extending the right of
procreative privacy to the unmarried person. They are wrong in subvert-
ing the privileged status of marriage, contrary to the teaching of Loving v.
Virginia and Boddie v. Connecticut, contrary to the place of marriage in
American experience. The vital personal right recognized by Loving v.
Virginia is not the right to a piece of paper issued by a city clerk. It is
not the right to exchange magical words before an agent authorized by the
state. It is the right to be immune to the legal disabilities of the unmarried
and to acquire the legal benefits accorded to the married. Lawful marriage
in the society's hierarchy of values recognized by Boddie v. Connecticut
and in the host of laws yet unchallenged — the tax law, the common law of
property, the law of evidence — is a constellation of these immunities and
privileges. To say that legal immunities and legal benefits may not de-
pend upon marriage is to deny the vital right. To say that Equal Protection
requires the equal treatment of the married and the unmarried in all re-
spects is to deny the hierarchy of values of our society.
The nation and the institution of marriage survived Phases One and
Two of the Court's exposition of the Constitution and its requirements in
the law of domestic relations. Social patterns of sexual behavior are
determined by more than court decrees. Marriage as a religious institution,
voluntarily entered, is not ended by any court's decree that the married and
the unmarried must be treated alike. But the law, while far from omnipo-
tent, has a pedagogic role in the shaping of society which cannot be dis-
missed. In a secular age, as ecclesiastical authority diminishes, the specific
importance of the Supreme Court as the expositor of moral doctrine in-
creases.
The nation and the institution survived Phase One and Phase Two, but
the costs of the Court's mistakes were -far from negligible. Who can read
of the persecution of the Mormons by the federal government without aware-
ness of the cruelty of the Court's conclusions in Phase One?07 Who can
The court finds no rational basis for a distinction where such proof is not rcquncd of
legitimate children.
97. See Freeman, A Remonstrance for Conscience, 106 U. Pa. L. Rev. 806, 825
(1958).
246
274 Catholic University Law Review [Vol. 23:255
look at the consequences to husbands, wives, and children of the masterful
confusion, the topsy-turvy constitutional law of divorce, support, and
custody, without a sense of the Court's incompetence in Phase Two?08
Who can contemplate the implications of the cases on the rights of the un-
married without a suspicion that the Court has enunciated principles incon-
sistent with the preservation of the most precious of social goods?
A paper on the family may appropriately end with a children's fable —
"The Gingerbread Man." The Gingerbread Man, you may remember, was
an exceptionally well-made work of human artifice. After outrunning many
dangers he was taken on the tail of an old fox. The fox moved him from
his tail to his back, from his back to his nose, and then threw him, topsy-
turvey, in the air and on his descent began to eat him.
"I'm a quarter gone," cried the Gingerbread Man. Then, "I'm half gone,"
he cried. Then, "I'm three-quarters gone." And then there was silence.
If marriage had a tongue like the Gingerbread Man, what would it cry
out now?
98. See Hnzard, May v. Anderson: Preamble to Family Law Chaos, 45 Va. L. Rev.
379 (1959); Note, Divisible Divorce, 76 Harv. L. Rev. 1233 (1963).
247
Appendix C
Biographical Data of John T. Noonan, Jr.
Born: Boston, Mass., October 24, 1926, the son of John T. and Marie Shea
Noonan.
Married: Mary Lee Bennett of Weston, Mass., December 27, 1967.
Children: John Kenneth, January 5, 19G9 ; Rebecca Lee, October it, 1970;
and Susanna Bain, January 5, 1972.
Present Position: Professor of Law, University of California Law School
Berkeley, 19G6 to date.
Education —
BA, suruma cum laude, Harvard College, 1946 (class of 1947).
Studies in English Literature at Cambridge University, 1946-1947.
MA, 1949, and Ph.D. in Philosophy, 1951, The Catholic University of Amer-
ica.
LLB, Harvard Law School, 1954.
LLD (Hon.) University of Santa Clara, 1974.
Admission to Bar —
Massachusetts, 1954.
Supreme Court of the United States, 1971.
Past Positions —
Associate, Herrick Smith, Donald Farley and Ketchum, Boston, Mass.
1955-1966.
Associate Professor of Law, University of Notre Dame Law School, 1961-
1963 ; Professor of Law, 1963-1966.
Government Service —
Member, Special Staff of the National Security Council, 1954-1955. serving
as assistant to Robert Cutler, Special Assistant to President Eisenhower.
Member, Chairman, Brookline (Mass.) Redevelopment Authority, 1958-
1962.
Expert, Presidential Commission on Population and the American Future.
1971.
Public Service —
Treasurer, Massachusetts Citizens for Eisenhower, 1956.
Vice-President, American Society for Political and Legal Philosophy, 1962-
1964.
Trustee, Population Council, 1969 to date.
Trustee, Graduate Theological Union, 1970 to 1973.
Director, Secretary and Treasurer, Institute for Research and Study in
Medieval Canon Law, 1970 to date.
Consultant. Ford Foundation. Indonesian Legal Fellowships Program. 1969.
Consultant, National Institutes of Health, 1973 (on the protection of chil-
dren in experiments).
Consultant, National Endowment for the Humanities, 1973 and 1974 (on
legal education and on law and the humanities).
Final Judge. Ford Foundation— Rockefeller Foundation Competition for
Studies in Population Policy. 1971.
Member, Yale Council Committee on Theological Education, Yale T Diver-
sity, 1972 to date.
Senator, Phi Beta Kappa. 1970 to date.
Trustee. Phi Beta Kappa Foundation. 1970 to date.
President, Alpha of California, Phi Beta Kappa, 1972-1973.
C/Jitivcli St C VX> i cc~~~~
Consultant, Papal Commission on Problems of the Family. 1965-1966.
Governor, Canon Law Society of America. 1970-1972.
Member, Committee on Due Process. Canon Law Society of America. 1WB».
Member, Catholic Commission on Intellectual and Cultural Affairs, since
1965; Executive Committee, since 1972.
Trustee. University of San Francisco, 1970 to date.
Chairman, Program in Religious Studies, University of California. Berkeley
1069—1972
1 Chairman. Committee on the Robbins Law Library Addition. 1970 to date
Member, Admission Committee, Law School of the University of Cali-
fornia, Berkeley, 1972.
248
Editorships —
Editor, natural Law Forum, 1961-1969.
Editor American Journal of Jurisprudence, I960 to date.
Member, Editorial Board of Harvard Law Review, 1953-1954: Book Review
Editor, 1954.
Fellowships —
Guggenheim Fellowship. 1 {(65-1966.
Fellow, Center (or Advanced Studies in the Behavioral Sciences, 1973-1974.
Lectureships —
World Medical Congress, .Manila, 1966.
Visiting Professor Law, Southern Methodist University Law School,
January, 1966.
Canon Law Society of America, Annual Meeting, 1969.
Visiting Professor of Law, Stanford University Law School .Spring, 1970.
Law in a Free Society Lecturer, University of Texas Law School, 1971.
Oliver Wendall Holmes, Jr. Lecturer, Harvard Law7 School, 1972.
Catholic Theological Society, Annual Meeting, 1972.
Pope John XXIII Lecture, Catholic University of America Law School, 1973.
St. Robert Bellarmine Lecture, St. Louis University, 1973.
National Television —
Today, February 2, 1967.
Firing Line, November 5, 1972.
Firing Line, July 14, 1973.
Prizes —
Phi Beta Kappa, Harvard College, 1945.
John Gilmary Shea Prize of the American Catholic Historical Society, 1965.
Alumni Achievement Award, The Catholic University of America, 1971.
John Gilmary Shea Prize of the American Catholic Historical Society, 1972.
St. Thomas More Award, St. Thomas More Society of San Francisco (1974).
Law School Courses —
Functions of the American Lawyer.
( Jontemporary Jurisprudence.
Legal Problems in Genetics.
Population Problems and the Law.
Family Law.
Discriminations and Distinctions Based on Age
Slavery As An American Legal Institution.
Canon Law in a Legal System.
Business Interests — Chairman, Games Research, Inc., (Boston, Mass.) since
1960.
Publications —
Books
Th( scholastic Analysis of Usury, (Harvard University Press) 1957.
Contraception: .1 History of Its Treatment by the Catholic Theologians and
canonists (Belknap Press of Harvard University Press) 1!)65 ; translated into
French, Spanish and German; paperback edition. New American Librarv,
1967.
Power to Dissolve: Lawyers and Marriages in the Courts of the Roman
Curia (Belknap Press of Harvard University Press) 11(72.
Editor, The Morality of Abortion, (Harvard University Press) 1970.
Articles
Law: "The Astronomer and the Gondolas", Harvard Alumni Bulletin, Sep-
tember 28, 1957, reprinted in Selected Materials Prepared for the Committee
on Government operations of the United States Senate and Its Sub-committee
on National Policy Machinery, 86 Congress Second Session, 1960.
'Inferences from the Invocation of the Privilege Against Self-Incrimina-
tion", Virginia Law Review, XXXXI (1955).
"Value References in the Teaching of Negligence", Journal of Legal Educa-
tion. VIII i 1955).
"Allocation of Administrative Responsibility", Antitrust Law and American
Business Vbroad by Kingman Brewster, Jr. (McGraw-Hill, 1958).
"The Purposes of Advocacy and the Limits of Confidentiality", Michigan
Lair /,'. , U /'. LXIV i L966).
249
"Academic Freedom and Tenure: St. John's University (XV. i" l w /■
Bulletin, LII, March, 1966.
"From Social Engineering to Creative Charity", Knowledgt and the Futun
\ of Man: An International Symposium, edited by Walter .1. Ong, S.J. (Holt,
Rinehart and Winston, 1968).
"Az Abortusz-Kerdes Tortenete", Merlez (January, 1969).
"Amendment of the Abortion Law: Relevant Data and Judicial Opinion'',
fhe Catholic Lawyer, XV (1969).
"The Constitutionality of the Regulation of Abortion", The Hastings Late
Journal XXI (1969).
"Population Problems and Abortion", California Monthly, LXXX (1969).
"Freedom to Reproduce: Cautionary History. Present Invasions, Future
Assurance", Proceedings of the American Civil Liberties Union Biennial '''in-
ference (1970).
"Canon Law in the United States: A Time of Ferment," in Legal Thought
in the United States Under Contemporary Pressures (ed. J. N. Hazard and
W. J. Wagner, 1970).
"Human Rights and Canon Law*' in Rene Cassin Amieorum Discipulorumque
Liber IV (1972).
"Raw Judicial Power", National Review, March 2, 1973.
"The Family and the Supreme Court", Catholic University <>f America Law
Review 23 (Winter, 1972).
Contraception
"Tokos and Atokion : An Examination of Natural Law Reasoning Against
Usury and Against Contraception", Natural J, air Forum, X (1965).
"Catholics and Contraception", Act, July, 1965.
"Contraception and the Council" from Commonweal LXXXIII March 11.
1966 reprinted in The Catholic Case for Contraception edited by Daniel Calla-
han (Macmillan. 1969) translated as "Das Konzil und die Empfangnisver-
hutung", Schweizer Rundschau LXL (1966).
"Authority on Usury and on Contraception", Tijdschrift Voor Theologic
1966, republished in Crosscurrents Winter 1966 and in the Wiseman Review
Summer 1966, and digested in Theology Digest March, 1967.
"Birth Control: The Shaping of the Catholic Doctrine". The Perkins School
of Theology Journal, XXI (1967). reprinted in St Joseph Magazine (July.
"Contraception and the Pope's Conscience", Commonweal, LXXXIV March.
1967- „ r, M Hi
"La Dottrina della chiesa sull'iisura e la contraccezione , Crescente e Moth-
plicatevi Sempre e Communque (Jaca Book, 1968).
"Intellectual and Demographic History", Daedalus (Spring, 1968).
"The Catholic Church and Abortion", Natural Law Forum, XII (1967).
Marriage
"Freedom, Experimentation and Permanence in the Canon Law of Mar-
riage", Law for Liberty, edited by James E. Biechler (HeUcon, 1967).
"Marital Affection in the Canonists", Studio GraUana XII: Collectanea
Stephan Kuttner (1967). . r. ., ,
"History and the Values of Christian Marriage . Marriage in the Fight of
Vatican II, edited by James T. McHugh (Family Life Bureau, 1!H*>-
"Novel 22", The Bond of Marriage, edited by William W. Basset (Univer-
sity of Notre Dame Press, 1968).
"Indissolubility of Marriage and Natural Law". American Journal of Jurts-
^"PapS Dilohmofof Marriage: Fiction and Function". Proceedings of thi
Canon Late Society of America (1969). ..
"The Steady Man: Process and Policy in the Courts of the Roman < una.
58 California Law Review 628 (1970). Catholic
"USRA's Case" in Wrenn, ed. Divorce and Remarriage in Ih, CathotU
Church.
"Power to Choose", Viator (1973).
250
Theology
"Renan's Life of Jesus: A Ee-Bxamination", The Catholic Biblical Quar-
terly, XI I 1948
"Hegel and Strauss: The Dialectic and the (Jospels", The Catholic Biblical
Quarterly, XII I 1950).
"The Layman, Institutions, and the Church", Trinity College Alumni Jour-
nal. XXXIX (Winter, 1966).
"Celibacy in the Fathers of the Church", The Problematic and Some Prob-
lems". Celibacy: The Necessary Option, edited by George H. Frein (Herder
and Herder, 1968). „ n
"The Amendment of Papal Teaching by Theologians , Contraception: Au-
thority anil Dissent, edited by Charles E. Curran (Herder and Herder. 1969).
"Making one's own Act Another's," The Catholic Theological Society.
Proceedings of the Twenty-Seventh Annual Convention (1972).
"Responding to Persons", Theology Digest (Winter. 1973).
Philosophy
"The Existentialism of Etienne Gibson". The New Scholasticism, XX, (1950).
"The Protestant Philosophy Of John Locke" Philosophical Studies In Honor
of the Very Reverend Ignatius smith, O.P., edited by John K. Ryan (The New-
man Press, 1952 ).
"Introduction to Volume VIII", Natural Law Forum, VIII (1963).
"Deciding Who Is Human". Natural Laic Forum XIII (1968).
•The Case of the Talented Bakers". Harvard Medical Alumni Bulletin (Win-
ter 1971' i .
"Konventionen und Konstruktionen der Naturrechts", in Bochle and Boehen-
forde. ed., Saturn ctit in der h'ritik (1973).
•Responding to Persons: Methods of Moral Argument in the Debate over
Abortion," Theology Digest 24 (Winter, 1973).
Senator Bath. Thank you, Professor Noonan.
Professor Ely?
STATEMENT OF JOHN ELY, PROFESSOR OF LAW, HARVARD
UNIVERSITY
Mr. Ely. Shortly after the derision in Roe was rendered I analyzed
it in some detail and criticized it strongly in an article appearing at
82 Vale Law Journal 920. So 1 will only briefly summarize my con-
clusions respecting the opinion, and then go on in the time I have
remaining to talk for a few moments about the process of constitu-
tional amendment.
The opinion in Roe raises many problems, some peripheral and
some central. Ajnong the peripheral ones that I would mention are
two conclusions thai 1 think do not flow even from the court's
premises. I have specific reference;
First : To the holding that during the first trimester of pregnancy
no health regulation whatsoever, except for the fact that an abortion
performed by a doctor, is permissible.
And second: I refer to its holding, which seems clear — although
it is undefended- -that during the third trimester, at which point
even the Supreme Court is prepared to grant that the fetus is a
person, the States are obligated constitutionally to prefer the health
of the mother over the life of the fetus at that point. Given the broad
definition that health has, and rightly lias, I think, been given in
these contexts, thai conclusion, which I repeat was undefended,
is particularly frightening.
251
I have equal problems with the central points of the opinion, how-
ever, and the problems fall generally into two categories. First, the
Court never adequately explains why a desire on the pari of a State
to permit a fetus to proceed to life is not a goal sufficiently important
to support the legislative efforts in this area. All it says on thai
score are two things: First, that legal doctrine, generally, d<>e< not
regard fetuses as persons; and second, that the various constitu-
tional clauses that use the word "person" do not seem to have been
drafted with fetuses in mind. Neither demonstration is at all con-
vincing in my vieAv, but beyond that it seems to me the conclusion is
irrelevant to the constitutional question because it has never been
held or even asserted, as far as I am aware, that the State interest
that is needed to justify forcing a person to refrain from an activity,
whether or not the activity is constitutionally protected, must impli-
cate the life of another person.
To take another example, dogs, of course, are not persons but
that has never mant that the State cannot prohibit the killing of
dogs. It does not even mean the State cannot prohibit the killing of
dogs in what you assert to be the exercise of your First Amend-
ment rights.
So on that score, that the State interest is insufficient, it seems
to me that the opinion fails.
It seems to me it fails equally with respect to the other half of
its inference, and that is the proposition that the right to an abortion
is a constitutional right entitled to special constitutional protection.
In other words, it never adequately gets to the point of calling for a
compelling State interest. Nothing in the Constitution's text, nothing
in the Constitution's history suggests any right to an abortion. The
court does say that there is something called a right to privacy dis-
coverable in the interstices of the Constitution. And so I believe one
can argue there is, so long as one pays attention to the dimensions
of the right that can be inferred. Several amendments certainly
relate to privacy in the sense of permitting us, under some circum-
stances, to keep things from the government, keep secret- from the
Government that w^e would rather it did not have. That meaning of
privacy is intelligible and also can be inferred from the Constitution.
However, obviously, the right to an abortion has nothing to do with
that sort of right and the court does not suggest that it does.
I would be the last to suggest that the Constitution prohibits only
the things that the farmers had in mind: inferences from the value
structure that is there set forth is the proper stuff of constitutional
adjudication.
The trouble is that the Court suggests no such inference in this
case
Even that may not be an end to the matter. Tn a famous footnote
in the Carolene Products case. Chief Justice Stone suggested that it
was a proper role of the Court to extend protection to what he
termed "discrete and insular minorities." unable to adequately pro-
tect themselves in the legislative arena.
There are some difficulties in giving principle content to this ap-
proach but one thing about it always seemed clear to me, and that
was that it made sense only as regards the protection of the inter
252
- of what are minorities as compared with the interests to which
they have hem subordinated. Thus, in this case we could say that
women may be a discrete and insular minority as compared with
men : indeed I have so argued. But as between the interests of women
and the interests of fetuses, it is very difficult to conclude that as
between those two groups women are a discrete and insular minority
and cannot gel a fair hearing in the political arena.
That is a brief summary of what is in my article and it can be
read at greater length.
I did want to add some remarks on constitutional amendment, It
i mi — well, first, somebody who thinks that the Roe decision
was had constitutional law but nevertheless arrived at a pleasing and
acceptable political result, is not in an entirely obvious position, but
seems to me that such a person probably should leave well enough
alone. The Constitution has. in every functional sense, been amended
to now read as the person thinks it ought to read and it seems to me
in view of the widespread criticism of the Roe decision it is unlikely
that leaving Roe on the books will encourage further and similar
excursions in constitutional judgment.
Somebody, however, who thinks not only that Roe is bad consti-
tutional law but also that it does not reach a desirable, political and
moral result should. I would think, although the question is not al-
together obvious, support a constitutional amendment calculated to
reverse it. That is not always true. One might disagree with a cer-
tain decision and still hesitate to tamper with it for fear of upsetting
an entire fabric of constitutional doctrine.
For example. I would think that one would quite reasonably hesi-
tate to decide to amend the first amendment in response to a court's
decision because there would be an obvious danger there of upsetting
an entile body of doctrine in unforeseeable ways. I do not see this
issue that way. Roe v. Wade seems to me a rather isolated esipode —
indeed, the only clear example of substantive due process thinking
by the Court we have witnessed since the thirties — and it seems to
me that it could be reversed by one so minded without great danger
of upsetting; an entire body of doctrine.
Turning just briefly to the resolutions before you, numbers 119
and 130, it seems to me they have some problems as respects what I
take to be their intendment, and that is to reverse the decision in
Roe. It seems to me it is not entirely clear that a court would hold
them to have done so for two reasons: First, there is what is known
i -i.ite action problem. By extending equal protection and due
process protection to fetuses there still remains the problem that the
Roe case, in theory at any rate, delegated the decision to have an
abortion to the pregnant woman and to her doctor. It could be
ted, therefore, that they are the persons who are depriving the
fetus of life and that therefore a command that the state not deny
(he fetus of life without due process and equal protection is not
violated. The argument would be that the state is not the bodv that
I doing the violating. Second, it is not entirely clear to me that di-
rectly extending equal protection and due process safeguards, even
- the Mate art ion problem, will reverse Roe. Those two clauses,
253
the due process and equal protection clauses, generally only require
that there be a reasonable basis for the state's action. And obviously,
the Supreme Court thinks there is a reasonable basis for doing that ;
indeed, it found the arguments for permitting the abortion of pre-
viable fetuses not only reasonable but indeed, compelling. So t;
amendments, in referring to equal protection and due pi eave
the Court the option of reading them in light of the constitutional
ri<rht which it purported to discover in Roe against Wade.
That leads to my final objection and it is a fundamental one to the
amendments, and that is that they share with the Supreme Court an
assumption that I find very questionable and indeed. I reject, and
that is the assumption that the problem of abortion, however il
resolved, is one appropriate to a uniform Federal solution. I under-
stand that they leave some room for local variation, but unless I
misunderstand them, the idea is that generally abortions arc not to
be permitted.
Thus. Ave have a Supreme Court holding that abortions are to be
permitted. These amendments suggest generally they arc not to be
permitted. But it seems to me that there is some question as to why
this is a problem that ought to be uniformly solved by the central
government in the first place. Tt does not strike me as a peculiarly
Federal issue. It strikes me, in addition, as an extremely difficult
moral issue on which compassionate people and compassionate State
legislatures can take contrasting views and therefore. I would argue,
if there is a disposition to react to Roe by way of a constitutional
amendment, it should be one calculated to return to the situation
before Roe — that is, an amendment that would leave a good deal of
discretion to the State legislatures to resolve this excruciatingly diffi-
cult problem as they see fit.
Senator Bath. Thank you. Professor. "We will put that journal
article of yours in the record, without objection. Tt is extensive and
I think it adds to our study.
[The prepared statement of John Ely follows :]
Statement of John Hart Ely
i. roe v. WADE
I have analyzed (and strongly criticized) the Court's opinion at seme length
in The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Vale I.mw
Journal 920 (May 1973). and shall only briefly summarize my observations
here. The opinion is reckless around the edges. Special reference, might !"■
made to two points in this regard. First, the Court holds that no health
regulation at all. except that the abortion be performed by a doctor, Is
permissible during the first trimester. This is thought to follow from the
Court's assertion, controversial in itself, that during that period ;i 1»< >rt i- .n i<
safer than proceeding to childbirth. Rut of course it does not follow: the
empirical observation argues, at most, for allowing abortion and not for a
ban on all measures designed to make abortions safer. Second, the Court
quite plainly states that even during the third trimester (at which poinl the
Court is prepared to regard the fetus as a person i the Constitution requires
that the fetus's life give way to the life or health of the mother. Given the
broad definition that courts have (quite properly) given "health" in t!
contexts, the Court's conclusion here — completely undefended, by the way
is a most frightening one.
I find the opinion equally unacceptable, however, as regards its central
propositions. It never adequately explains why a desire to permit the fetus
254
U, proceed to We la not a goal sufficiently important to support the state's
'„„, eiforts in this area. All it says that is even arguably relevant to
me point la that legal doctrine generally does not regard fetuses as persons
una that the various constitutional clauses that refer to persons do not seem
to have fetuses in mind. .Neither demonstration is convincing, but beyond that,
iiclusiou that fetuses are not persons is irrelevant .
- has never been held or even asserted that the state interest needed
to Justify forcing a person to refrain from an activity, whether or not that
activity is constitutionally protected, must implicate either the hfe or the con-
stitutional rights of another person. Dogs are not "persons in the whole sense
nor have they constitutional rights, but that does not mean the state cannot
prohibit killing them: It does not even mean the state cannot prohibit killing
them in the exercise of the First Amendment right of political protest. Come
to think of it, draft cards aren't persons either.
Second, the opinion never adequately defends— in fact it never defends—
the propositi. .n that the right to an abortion is a constitutional right entitled
to special constitutional protection that would even call for the "compelling
state interest" the Court ( unconvincingly ) finds wanting. Nothing in the Con-
stitution's text or history suggests any such right. The Court says there is
a "right t.» privacy" discoverable in its interstices, and so indeed there may
I.e. If one has reference to a right under some conditions to keep from the
government Information he would rather it did not have. But whatever else
abortion may involve, it does not involve a right of that contour. I would be
the last to suggest thai the Constitution prohibits only the very things the
trainers had in mind : inferences from the value structure the document em-
bodies are the very stuff of constitutional judgment. The point is the Court
suggests none.
I am of course aware that the Constitution contains some clauses so open-
ended as to suggest thai their content was meant to be worked out over time.
Bui surely they are not carte blanche for courts, or we might as well stop
pretending we are in any significant respect a democracy. The question, there
fore, is how the Court should give them content. It might respond by reading
the vaguer charters to incorporate conventional morality, or as Professor
Heymann puts it. •deeply prized and widely shared" societal values. I am not
at all sure that Roe comes out his way under this test, but more importantly
is to me a test most inappropriate for judicial application. I doubt
that we can ever confidently discover the "true moral principles of the
people, but I am clear that legislatures are more likely to reflect them than
courts. The more appropriate general approach, it seems to me, is to assign
I., the courts a role lawyers are specially trained to fulfill, that of ensuring
purity of process. There are some interests that are unlikely to be adequately
represented in elected bodies, namely the interests of what Chief Justice
ailed "discrete and insular minorities." and it is at least arguable that
the Court should assume a special role in protecting them. There are diffi-
culties in this approach, to be sure, having mainly to do with expressing it in
adequately principled terms. But however expressed, it seems inappropriate
to the abortion situation. Compared with men, women may he a discrete and
insular "minority." But as between the interests of women and the interests
of fetuses, it is difficult to conclude that the former cannot get a fair hear-
ing in the political arena.
Professor Tribe defends Rnr in somewhat different terms. I have no diffi-
culty in rephrasing the question, as he does, as one of "role allocation": all
constitutional questions are that. (The first amendment, for example, doesn't
tell you what to say or what not to say. hut rather leaves you the decision
free from government interference.) T simply do not find that if helps sup-
port Justice HlacKinun's conclusion. Professor Tribe argues that the eoal of
ling the "life" of a nonviable fetus cannot he invoked in defense of
anti-abortion legislation, since the question whether a fetus is alive is one
■ with religious overtones. T am troubled by the argument: to disallow
ps embraced bv sizeable religious grouus — or what is its functional
equivalent, to rHsillnw legislation when such defenses are rife — sppms to re-
nnire n sort of secularization at war with the spirit of the fre^ exercise
The religious clauses, read together, counsel neutrality with respect
255
to religion: to remove a subject from public debate because religiously
inspired views are found to be competing with others does nol strike me
neutrality. But passing that, there is another defense of anti-abortion legisla-
tion to contend with, one geared not to the proposition that the ictus is alive
but rather to the proposition, and it is undeniable, that whether or m
nonviable fetus is alive, it will likely become so unless it is aborted. And
that, I would argue, is enough to permit the state to protect it. Professor
Tribe grants that this is not an inherently religious defense, but dismisses it
as "hardly compelling." (87 Harvard Law Review at 26.) The first question
is why the defense has to be "compelling" in the first place: it is. admittedly,
a religiously neutral defense, and Professor Tribe quite wisely does qoI join
Justice Blackmun's claim that the right of an abortion is somehow enshrined
by the Constitution. The second question ,<>f course, is why the "potential
life" defense isn't compelling, a question that is further focused by Profe
Tribe's later assertion that the protection of a viable (third trimester) fetus
is a compelling interest. "[A] state wishing to prevent the killing of infants
simply has no way to distinguish the deliberate destruction of the latter from
what is involved in postviability abortions." (/(/. at 28, emphasis added.)
After six months, the argument based on the realization that the fetus will
if unaborted proceed to full personhood is apparently so compelling as to
be undeniable: prior thereto, for reasons I do not understand, it is so on-
convincing as to disallow state reliance on it. The analysis is a good deal
more sophisticated than Justice Blackmun's, but ultimately it has to beg the
same questions, since that is the only way to get to the same result.
II. SOME GENERAL OBSERVATIONS ON CONSTITUTIONAL AMENDMENT IN
RESPONSE TO SUPREME COURT DECISIONS
If I am an expert on anything, it is constitutional law. not abortion, and I
therefore assume the Subcommittee has little interest in my views on the
merits of the latter subject. (My outrage was directed at what had been done
with the existing Constitution, and had nothing to do with my feelings re-
specting what the Constitutional ought to say on the subject of abortion. » I
might add some remarks on the amending process, however.
One who feels that the abortion decision was constitutionally indefensible.
but nonetheless arrived at an appropriate moral and political conclusion, is
faced with a not entirely obvious choice. On the one hand, the Constitution
has, in a functional sense, been "amended" to read as it should. The problem
is that the wrong tribunal did the amending, and there may exist some danger
— particularly after debate on the possibility of a constitutional amendment
— that a failure to amend will reassure the Court in the view of constitutional
adjudication the opinion evidences. The ideal response, given such a set of
views, might therefore be a constitutional amendment confirming what was
done in Roe, and thereby suggesting at once that the Court arrived at the
politically preferrable result but that it should not have done so under
the existing Constitution. Such an exercise seems obviously more burdensome
— and may even be more dangerous — than it is worth, and someone holding
the set of views described probably should let well enough alone. The likeli-
hood that the Court will view Roc as an experiment whose success recom-
mends a general loosening of the previously accepted criteria of constitutional
judgment is at least somewhat mitigated by the widespread (though of coursi
not universal) condemnation of the decision by lawyers and law professors
including a number (like myself) who had long thought most anti-abortion
legislation overly restrictive and a number (again like myself) who had gen
erally approved the recent activities of the Court in areas the Constitution
does tell it to get involved in. such as political expression, criminal pro-
cedure and race relations.
But suppose one is of the opinion that Roe did not arrive at a politically
and morally desirable result: it is clear that he should therefore suppi
constitutional amendment calculated to reverse the decision? T think the
answer comes out yes. though T would reiect the broader view thai
mpnt is always appropriate under such circumstances. One who ,
with a particular decision should hesitate to move against it by constitutional
256
adment if it can reasonably be tbougbt that doing so would threaten the
integrity of an entire constitutional fabric. For example, one might strongly
disagree with a particular first amendment holding but still, quite wisely,
tate to attempt a reversal of that holding: any attempt to tinker with
the first amendment would at least have the potential of upsetting, in a host
of unforeseeable ways, the whole body of doctrine, generally successful doc-
trine that has been developed under that amendment. It is hard to view this
problem In that way, however. The abortion decision, by comparison, seems
Lther isolated episode— indeed, the only clear excursion into substantive
fine process we have witnessed since the 1930— and it seems to me it could
be reversed without threatening an entire fabric of doctrine.1
III. 8.J. BES. 119 AND 130
I find neither Resolution clearly calculated to reverse the decision in Roe,
which I assume is what they are meant to do. There is, in the first place, a
ite ad inn" problem. Roe, as Professor Tribe's article makes clear, re-
manded "the abortion decision" to the pregnant woman and her doctor. It
could at least he argued that because the termination of the fetus's life is
the act of those two persons, permitted but not required by the state, the
direct or indirect placement of due process and equal protection limits on
the state respecting abortions simply does not reach the question. This would
be a strained construction, but it is at least possible.
Mure importantly— passing the state action problem — the substantive pro-
visions of the Resolutions are not clearly calculated to reverse Roe. Denomi-
nating the fetus a person for purposes of the fourteenth amendment simply
does not, it' Roe is carried to what we might loosely call its logical conclusion,
settle the question that case posed. As I said in my article:
"[I]n fact all that would be established [by concluding that the fetus is
a person] is that one right granted special protection by the Fourteenth
Amendment was in conflict with what the Court felt was another; it would
not tell us which must prevail."
Nor does explicitly providing the fetus with due process and equal protec-
tion necessarily settle the matter: the Supreme Court in Roe obviously thought
there w&s a "reasonable basis" (and that is what the two clauses typically
require) for permitting the abortion of non-viable fetuses: indeed it found the
arguments so compelling it forbade the states to take a contrary view.
That leads to my final objection, and it is a fundamental one, to the two
proposed amendments, as least as I understand their intendment. And that is
that they share with Justice Rlackmun and his brethren a crucial assumption
that 1 rejeel thai the matter is one appropriate to a uniform federal solu-
tion. I understand that Section 3 of each Resolution will leave some room for
local variation, hut unless T misunderstand the general thrust it is that abor-
tions generally are not to be permitted (except, perhaps, in the extraordinary
situation mentioned in Section 2 of Resolution 119.) Thus, in general terms.
the Court permitted abortions, and the proposed Amendments seek to forbid
them. 1 have trouble, however, understanding — whichever way the issue is
Ived- what it is that makes this an issue appropriate to solution by the
tral government. It does not seem a peculiarly "federal" issue, and it is
an excruciatingly difficult moral issue on which compassionate people (and
latures) can differ. If there is a disposition to react to Roc by way
tutional amendment, I would think an amendment clearly calculated
to return to the status <\u<> ante Roe — that is. to leave a good deal of discre-
tion with the several states would be the more appropriate response.
danger that I am hprp merely roitorating my pstlmate of tho
validity. One win, nnnroved It weld lip more llkplv. or at' lpast so I hopp
' of tli,. warp and woof of Ampriean ronstitutional law
257
REPRINT N2 15
May 1973
The
Wages of
Crying Wolf:
A Comment
on
Roe v. Wade
John Hart Ely
258
© 1973 by John Hart Ely.
All rights reserved.
Reprinted May 1973 from The Yale Law Journal,
Volume 82, Number 5, April 1 973,
with permission.
Copies of this and other reprints — no charge for any
three, 20c each thereafter — are available from:
AMERICAN ENTERPRISE INSTITUTE
1150 Seventeenth Street, N.W.
Washington, DC. 20036
259
This is one of a series of occasional reprints published
by the American Enterprise Institute for Public Policy
Research. The series is intended to provide wider circulation
within policymaking and academic circles for selected
papers and speeches by scholars and others
associated with the institute. The views herein are those of
the authors and do not necessarily reflect the views
of the staff, officers or trustees of AEI.
260
The Wages of Crying Wolf: A Comment
on Roe v. Wade
John Hart Ely*
The interests of the mother and the fetus are opposed. On which
side should the State throw its weight? The issue is volatile; and
it is resolved by the moral code which an individual has.1
In Roe v. Wade,2 decided January 22, 1973, the Supreme Court-
Justice Blackmun speaking for everyone but Justices White and Rehn-
quist3— held unconstitutional Texas's (and virtually every other state's4)
criminal abortion statute. The broad outlines of its argument are not
difficult to make out:
1. The right to privacy, though not explicitly mentioned in the
Constitution, is protected by the Due Process Clause of the Four-
teenth Amendment.5
2. This right "is broad enough to encompass a woman's decision
whether or not to terminate her pregnancy."-6
3. This right to an abortion is "fundamental" and can therefore
be regulated only on the basis of a "compelling" state interest.7
4. The state does have two "important and legitimate" interests
here,8 the first in protecting maternal health, the second in protect-
ing the life (or potential life9) of the fetus.10 But neither can be
counted "compelling" throughout the entire pregnancy: Each ma-
tures with the unborn child.
These interests are separate and distinct. Each grows in substan-
• Professor of Law, Vale Law School.
1. United States v. Vuitch, 402 U.S. 62, 80 (1971) (Douglas, L, dissenting in part).
2. 93 S. Ct. 705 (1973). 6 V '
3. Were the dissents adequate, this comment would be unnecessary. But each is so
brief as to signal no particular conviction that Roe represents an important, or un-
usually dangerous, constitutional development.
4. See 93 S. Ct. at 709-10 n.2. See also Doe v. Bolton, 93 S. Ct. 739, 742 (1973).
5. Id. at 727. But cf. note 58 infra.
6. 93 S. Ct. at 727.
7. Id. at 728.
8. Id. at 731.
9. The Court indicates that the constitutional issue is not to be solved by attempting
to answer the difficult question of when life begins." Id. at 730. See also id. at 725
Hut see pp. 925-26 tnfra.
10. The suggestion that the interest in protecting prenatal life should not be con-
^r^H , .Cfai,SCKl C or,Ki,n^1 .legislative history of most laws restricting abortion con-
«,£„ i'n*? w,th.mat"nal hfa th- »' 93 S. Ct. at 725-26, is rightly rejected-by clear impli-
cation in Roe and rather explicitly in Doe. Id. at 747.
261
Roe v. Wade
tiality as the woman approaches term and, at a point during
pregnancy, each becomes "compelling."11
5. During the first trimester of pregnancy, neither interest is suf-
ficiently compelling to justify any interference with the decision of
the woman and her physician. Appellants have referred the Court
to medical data indicating that mortality rates for women under-
going early abortions, where abortion is legal, "appear to be as low
as or lower than the rates for normal childbirth."12 Thus the state's
interest in protecting maternal health is not compelling during the
first trimester. Since the interest in protecting the fetus is not yet
compelling either,13 during the first trimester the state can neither
prohibit an abortion nor regulate the conditions under which one is
performed.14
6. As we move into the second trimester, the interest in pro-
tecting the fetus remains less than compelling, and the decision to
have an abortion thus continues to control. However, at this point
the health risks of abortion begin to exceed those of childbirth. "It
follows that, from and after this point, a State may regulate the
abortion procedure to the extent that the regulation reasonably re-
lates to the preservation and protection of maternal health."15 Abor-
tion may not be prohibited during the second trimester, however.16
7. At the point at which the fetus becomes viable17 the interest
in protecting it becomes compelling,18 and therefore from that point
on the state can prohibit abortions except-and this limitation is also
apparently a constitutional command, though it receives no justi-
fication in the opinion-when they are necessary to protect maternal
life or health.19
n. id. at 731.
12. Id. at 725. But cf. note 117 infra.
13. See pp. 925 26 infra.
14. See 93 S. Ct. at 732. But see note 117 infra.
15. 93 S. Ct. at 732. But see note 117 infra.
16. 93 S. Ct. at 732. , . . , . . lh
17. This, the Court tells us, is somewhere between the twenty-fourth and twenty-eigntn
weeks. Id. at 730. But cf. p. 924 infra.
19. 93%P Ct^at"^. (Thus the statutes of most states must be unconstitutional even
as applied to the final trimester, since they permit abortion only for the P^P^oi^ ng
the mother's life. See id. at 709.) This holding-that even after v.ab.l.ty the rno her .life
or health (which presumably is to be defined very broadly indeed so as to .n do, de wha
many might regard- as the mother's convenience see 93 S. Ct. at 755 (Bu*g« ^ CJ.. con
curring)); United States v. Vuitch. 402 U.S. 62 (1971), must, as a "natter of cons. ttuUona
law, take precedence over what the Court seems prepared to grant at th, P°'nt ha* *
come the fetus's life, see p. 924 infra-seems to me at least as ~ntrovenia[ as^ £ hold
ing respecting the period prior to viability. (Typically of course, one is not prr vileged
even statutorily, let alone constitutionally, to take another's l.fe '" |0jJ"plf0"vtchJ,*s^cnl
life, much less his health.) Since, however, the Court does not see if .1 to defe nd th aspect
of its decision at all, there is not a great deal that can be said by way of criticism.
921
262
The Yale Law Journal Vol. 82: 920, 1973
A number of fairly standard criticisms can be made of Roe. A plausi-
ble narrower basis of decision, that of vagueness, is brushed aside in the
rush toward broader ground.20 The opinion strikes the reader initially
as a sort of guidebook, addressing questions not before the Court and
drawing lines with an apparent precision one generally associates "with
a commissioner's regulations.21 On closer examination, however, the
precision proves largely illusory. Confusing signals are emitted, par-
ticularly with respect to the nature of the doctor's responsibilities22
and the permissible scope of health regulations after the first trimes-
ter.23 The Court seems, moreover, to get carried away on the subject
of remedies: Even assuming the case can be made for an unusually
protected constitutional right to an abortion, it hardly seems necessary
to have banned during the first trimester all state regulation of the
conditions under which abortions can be performed.24
By terming such criticisms "standard," I do not mean to suggest they
are unimportant, for they are not. But if they were all that was wrong
with Roe, it would not merit special comment.25
20. The Court's theory seems to be that narrow grounds need not be considered
when there is a broad one that will do the trick: "This conclusion makes it unnecessary
for us to consider the additional challenge to the Texas statute asserted on grounds of
vagueness." 93 S. Ct. at 732. Compare id. at 710 n.3, 710-11; Doe v. Bolton, 93 S. Ct. at
747; Roe v. Wade. 314 F. Supp. 1217, 1223 (N.D. Tex. 1970); cases cited 93 S. Ct. at
727; and United States v. Vuitch, 402 U.S. 62 (1971), bearing in mind that the Supreme
Court lacks jurisdiction to "construe" a state statute so as to save it from the vice of
vagueness.
21. See also Doe v. Bolton, 93 S. Ct. 739 (1973).
22. Apparently doctors are expected, or at least can be required despite the decisions,
to exercise their best "medical" or "clinical" judgment (and presumably can be prosecuted
if they perform abortions conflicting with that judgment). 93 S. Ct. at 747, 751. But cf.
United States v. Vuitch, 402 U.S. 62, 97 (Stewart, J., dissenting in part). But if it is un-
constitutional to limit the justifications for an abortion to considerations of maternal
life and health, what kind of "medical" judgment does the Court have in mind? See Stone,
Abortion and the Supreme Court, Modern Medicine (forthcoming 1973): "[TJhere are
no clear medical indications for abortion in the vast majority of cases. Where there are
no indications, there is no room for clinical judgment."
23. Compare 93 S. Ct. at 732 with id. at 748-51. An additional element of confusion
may have been injected by Justice Douglas's indication in his concurrence that "quick-
ening" is the point at which the interest in protecting the fetus becomes compelling. Id.
at 759. But see id. at 730, where the Court distinguishes quickening from viability and
holds the latter to be the crucial point. See also id. at 732; p. 924 infra.
24. The state can require that the abortion be performed by a doctor, but that is
all. But see note 117 infra. Even after the first trimester, the limits on state regulation
»f the conditions under which an abortion can be performed are extremely stringent.
See Doe v. Bolton, 93 S. Ct. 739 (1973).
25. With respect to the capital punishment litigation too, the Court rejected a narrow
ground of invalidation one term only to come back with a coup de main the next.
Compare McGautha v. California, 402 U.S. 183 (1971) with Furman v. Georgia, 408 U.S.
I (1972). Miranda v. Arizona, 384 U.S. 436 (1966), has something of a "guidebook"
quality about it. See Dershowitz & Ely, Harris v. New York: Some Anxious Observations
on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L.T. 1198 1210 (1971).
Lnacd States v. Wade, 388 U.S. 218 (1967), to take but one example, has always struck
922
263
Roe v. Wade
II
Let us not underestimate what is at stake: Having an unwanted
child can go a long way toward ruining a woman's life.20 And at bottom
Roe signals the Court's judgment that this result cannot be justified
by any good that anti-abortion legislation accomplishes. This surely is
an understandable conclusion— indeed it is one with which I agree27—
but ordinarily the Court claims no mandate to second-guess legislator
balances, at least not when the Constitution has designated neither of
the values in conflict as entitled to special protection.28 But even assum-
ing it would be a good idea for the Court to assume this function, Roe
seems a curious place to have begun. Laws prohibiting the use of "soft"
drugs or, even more obviously, homosexual acts between consenting
adults can stunt "the preferred life styles"29 of those against whom
enforcement is threatened in very serious ways. It is clear such acts
harm no one besides the participants, and indeed the case that the
participants are harmed is a rather shaky one.30 Yet such laws sur-
vive,31 on the theory that there exists a societal consensus that the be-
havior involved is revolting or at any rate immoral.32 Of course the con-
sensus is not universal but it is sufficient, and this is what is counted
me as a case where the Court, starting from the entirely valid realization that trials
cannot be fair if lineups are not, went a bit far in limiting the appropriate remedies.
And of course many opinions have emitted confusing signals respecting what is hence-
forth permissible. See, e.g., pp. 929-30 infra.
26. The child may not fare so well either. Of course the Court requires of the mother
neither sort of showing, though it may be hoping the doctors will do so. But cf. note
22 supra.
It is also probably the case, although this is the sort of issue where reliable statistics
and comparisons are largely unobtainable, that a number of women have died from
illegal abortions who would have lived had they been able to secure legal abortions.
It is a strange argument for the unconstitutionality of a law that those who evade it
suffer, but it is one that must nevertheless be weighed in the balance as a cost of anti-
abortion legislation. The Court does not mention it, however; and given the severe re-
strictions it places on state regulation of the conditions under which an abortion can
be performed, it apparently did not appreciably inform its judgment.
27. See pp. 926-27 infra.
28. See pp. 926-37 infra. Even where the Constitution does single out one of the
values for special protection, the Court has shown an increasing tendency to avoid balanc-
ing, or at least to talk as though it were. See Brandenburg v. Ohio, 395 U.S. 444 (1969).
See also United States v. Robel, 389 U.S. 258, 268 n.20 (1967); but see Note, Less Drastic
Means and the First Amendment, 78 Yale L.J. 464, 467-68 (1969). See also United States
v. O'Brien, 391 U.S. 367, 376-77 (1968); but cf. Ely, Legislative and Administrative Moti-
vation in Constitutional Law, 79 Yale L.J. 1205, 1340-41 (1970).
29. 93 S. Ct. at 759 (Douglas, J., concurring).
30. The claim that the participants are injuring their health seems at least as plausiMe
respecting abortion. Cf. note 117 infra. To tfie extent that the use of soft drugs and homo-
sexual activities interfere with the lives of those other than the participants, those in-
terferences can be dealt with discretely. .
31. Cf. Poe v. Ullman, 367 U.S. 497, 551-53 (1961), (Harlan. J., dissenting), quoted in
part in Griswold v. Connecticut, 381 U.S. 479, 499 (1965) (Goldberg, J., concurring), dis-
tinguishing laws proscribing homosexual acts (even those performed in the home) as not
involving the "right" at stake in those cases. .
32. See, e.g., Poe v. Ullman, 367 U.S. 497, 545-46 (Harlan, J., dissenting).
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c racial, to get the laws passed and keep them on the books. Whether
anti-abortion legislation cramps the life style of an unwilling mother
more significantly than anti-homosexuality legislation cramps the life
style of a homosexual is a close question. But even granting that it does,
the other side of the balance looks very different. For there is more
than simple societal revulsion to support legislation restricting abor-
tion:33 Abortion ends (or if it makes a difference, prevents) the life of
a human being other than the one making the choice.
The Court's response here is simply not adequate. It agrees, indeed
it holds, that after the point of viability (a concept it fails to note
will become even less clear than it is now as the technology of birth
continues to develop34) the interest in protecting the fetus is compel-
ling.35 Exactly why that is the magic moment is not made clear: Via-
bility, as the Court defines it,36 is achieved some six to twelve weeks
after quickening.37 (Quickening is the point at which the fetus begins
discernibly to move independently of the mother38 and the point that
has historically been deemed crucial— to the extent any point between
conception and birth has been focused on.39) But no, it is viability that
is constitutionally critical: the Court's defense seems to mistake a defi-
nition for a syllogism.
With respect to the State's important and legitimate interest in
potential life, the "compelling" point is at viability. This is so
because the fetus then presumably has the capacity of meaningful
life outside the mother's womb.40
With regard to why the state cannot consider this "important and
legitimate interest" prior to viability, the opinion is even less satis-
33. Nor is the Court's conclusion that early abortion does not present serious phys-
ical risk to the woman involved shared by all doctors. Cf. note 117 infra.
34. It defines viability so as not to exclude the possibility of artificial support, 93
S. Ct. at 730, and later indicates its awareness of the continuing development of arti-
ficial wombs. Id. at 731. It gives no sign of having considered the implications of that
combination for the trimester program the Constitution is held to mandate, however.
35. Albeit not so compelling that a state is permitted to honor it at the expense of
the mother's health. See note 19 supra.
36. Note 17 supra.
37. See 93 S. Cl. at 716.
38. Id.
39. Id. at 716-20.
40. Id. at 732. See also id. at 730:
Physicians and their scientific colleagues have regarded [quickening] with less in-
terest and have tended to focus either upon conception or upon live birth or upon
the interim point at which the fetus becomes "viable," ....
I he relevance of this observation is not explained. It is, moreover, of questionable validity:
I his line is drawn beyond quickening, beyond the point where any religion has
assumed that life begins, beyond the time when abortion is a simple procedure, and
beyond the point when most physicians and nurses will feel the procedure is victim-
is also beyond the point which would have satisfied many who, like myself,
were long term supporters of the right to abortion.
Stone, supra note 22.
924
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Roe v. Wade
factory. The discussion begins sensibly enough: The interest asserted
is not necessarily tied to the question whether the fetus is "alive,'' for
whether or not one calls it a living being, it is an entity with the poten-
tial for (and indeed the likelihood of) life.41 But all of arguable rele
vance that follows42 are arguments that fetuses (a) are not recognized
as "persons in the whole sense" by legal doctrine generally43 and (b)
are not "persons" protected by the Fourteenth Amendment.44
To the extent they are not entirely inconclusive, the bodies of doc-
trine to which the Court adverts respecting the protection of fetuses
under general legal doctrine tend to undercut rather than support
its conclusion.45 And the argument that fetuses (unlike, say, corpora-
tions) are not "persons" under the Fourteenth Amendment fares little
better. The Court notes that most constitutional clauses using the word
"persons"— such as the one outlining the qualifications for the Presi-
dency—appear to have been drafted with postnatal beings in mind.
(It might have added that most of them were plainly drafted with
41. Logically, of course, a legitimate state interest in this area need not stand or
fall on acceptance of the belief that life begins at conception or at some other point
prior to live birth. In assessing the State's interest, recognition may be given to the
less rigid claim that as long as at least potential life is involved, the State may as-
sert interests beyond the protection of the pregnant woman alone.
93 S. Ct. at 725. See also id. at 730:
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 ar-
rive at any consensus, the judiciary, at this point [sic] in the development of man s
knowledge, is not in a position to speculate as to the answer.
The Texas statute, like those of many states, had declared fetuses to be living beings.
See id. at 709 n.l, 710 n.3; cf. id. at 721, 723 n.40, 729 n.55.
42 The opinion does contain a lengthy survey of •'historical attitudes' toward abor-
tion, culminating in a discussion of the positions of the American Medical Association,
the American Public Health Association, and the American Bar Association. Id. at 715-^4.
(The discussion's high point is probably reached where the Court explains away the
Hippocratic Oath's prohibition of abortion on the grounds that Hippocrates was a Pythag-
orean, and Pythagoreans were a minority. Id. at 715-16.) The Court does not seem en-
tirely clear as to what this discussion has to do with the legal argument, id. at /Oy, 715,
and the reader is left, in much the same quandary. It surely does not seem to support
the Court's position, unless a record of serious historical and contemporary dispute is
somehow thought to generate a constitutional mandate.
43. Id. at 731.
44. Id. at 728-30.
45. [Tlhe traditional rule of tort law had denied recovery for prenatal injuries even
though the child was born alive. That rule has been changed in almost even jura
diction. In most States recovery is said to be permitted only if the fetus was viable,
or at least quick, when the injuries were sustained, though few courts have squarely
so held. In a recent development, generally opposed by the commentators, some
States permit the parents of a stillborn child to maintain an action for wrongful
death because of prenatal injuries. Such an action, however, would appear to be
one to vindicate the parents' interest and is thus consistent with the view tha the
fetus, at most, represents only the potentiality of life. Similarly unborn children
have been recognized as acquiring rights or interests by way of inheritance or other
devolution of property, and have been represented by guardians ad litem. I ertcc
tion of the interests involved, again, has generally been contingent upon live birth.
In short, the unborn have never been recognized in the law as persons in tne
whole sense t~
Id. at 731 (footnotes omitted). See also, e.g., W. Prosser, Handbook of the Law of Torts
355 (3d ed. 1964).
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adults in mind, but I suppose that wouldn't have helped.) In addition,
"the appellee conceded on reargument that no case can be cited that
holds that a fetus is a person within the meaning of the Fourteenth
Amendment."46 (The other legal contexts in which the question could
have arisen are not enumerated.)
The canons of construction employed here are perhaps most in-
triguing when they are contrasted with those invoked to derive the
constitutional right to an abortion.47 But in any event, the argument
that fetuses lack constitutional rights is simply irrelevant. For it has
never been held or even asserted that the state interest needed 'to jus-
tify forcing a person to refrain from an activity, whether or not that
activity is constitutionally protected, must implicate either the life or
the constitutional rights of another person.48 Dogs are not "persons
in the whole sense" nor have they constitutional rights, but that does
not mean the state cannot prohibit killing them: It does not even
mean the state cannot prohibit killing them in the exercise of the First
Amendment right of political protest. Come to think of it, draft cards
aren't persons either.49
Thus even assuming the Court ought generally to get into the
business of second-guessing legislative balances, it has picked a strange
case with which to begin. Its purported evaluation of the balance that
produced anti-abortion legislation simply does not meet the issue:
That the life plans of the mother must, not simply may, prevail over
the state's desire to protect the fetus simply does not follow from the
judgment that the fetus is not a person. Beyond all that, however, the
Court has no business getting into that business.
Ill
Were I a legislator I would vote for a statute very much like the
one the Court ends up drafting.50 I hope this reaction reflects more
46. Id. at 728-29 (footnote omitted).
47. See pp. 928-33 infra.
48. Indeed it is difficult to think of a single instance where the justification given
for upholding a governmental limitation of a protected right has involved the consti-
tutional rights of others. A "free press-fair trial" situation might provide the basis for
such an order, but thus far the Court has refused to approve one. See Ely, Trial by
Xewspapcr & Its Cures, Encounter, March 1967, at 80-92.
In the Court's defense it should be noted that it errs in the other direction as well, by
suggesting that if a fetus were a person protected by the Fourteenth Amendment, it
would necessarily follow* that appellants would lose. 93 S. Ct. at 728. Yet in fact all that
would thereby be established is that one right granted special protection by the Four-
teenth Amendment was in conflict with what the Court felt was another; it would not tell
us which must prevail.
49. See United States v. O'Brien, 391 U.S. 367, 376-77 (1968). And if you don't like that
example, substitute post offices for draft cards.
50. I would, however, omit the serious restrictions the Court puts on state health
regulation of the conditions under which an abortion can be performed, and give
926
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than the psychological phenomenon that keeps bombardiers sane-the
fact that it is somehow easier to "terminate" those you cannot see—
and am inclined to think it does: that the mother, unlike the unborn
child, has begun to imagine a future for herself strikes me as morally
quite significant. But God knows I'm not happy with that resolution.
Abortion is too much like infanticide on the one hand, and too much
like contraception on the other, to leave one comfortable with any
answer; and the moral issue it poses is as fiendish as any philosopher's
hypothetical.51
Of course, the Court often resolves difficult moral questions, and
difficult questions yield controversial answers. I doubt, for example,
that most people would agree that letting a drug peddler go unappre-
hended is morally preferable to letting the police kick down his door
without probable cause. The difference, of course, is that the Constitu-
tion, which legitimates and theoretically controls judicial intervention,
has some rather pointed things to say about this choice. There will of
course be difficult questions about the applicability of its language to
specific facts, but at least the document's special concern with one of
the values in conflict is manifest. It simply says nothing, clear or fuzzy,
about abortion.52
The matter cannot end there, however. The Burger Court, like the
Warren Court before it, has been especially solicitous of the right to
travel from state to state, demanding a compelling state interest if it is
to be inhibited.53 Yet nowhere in the Constitution is such a right
mentioned. It is, however, as clear as such things can be that this right
was one the framers intended to protect, most specifically54 by the
Privileges and Immunities Clause of Article IV.55 The right is, more-
over, plausibly inferable from the system of government, and the
citizen's role therein, contemplated by the Constitution.50 The Court
serious thought— though the practical difference here is not likely to be great— to placing
the critical line at quickening rather than viability. See note 40 supra.
51. Some of us who fought for the right to abortion did so with a divided spirit.
We have always felt that the decision to abort was a human tragedy to be accepted
only because an unwanted pregnancy was even more tragic.
Stone, supra note 22.
52. Of course the opportunity to have an abortion should be considered part of the
"liberty" protected by the Fourteenth Amendment. See p. 935 infra.
53. See, e.g., Dunn v. Blumstein, 405 U.S. 330 (1972); Shapiro v. Thompson, 394 U.S.
618 (1969).
54. See also Edwards v. California, 314 U.S. 160 (1941).
55. See United States v. Wheeler, 254 U.S. 281, 294 (1920); Slaughterhouse Cases. 83
U.S. (16 Wall.) 36, 75 (1872); U.S. Aris. Confed. art. IV; 3 M. Farrand, The Records of
the Federal Convention of 1787, at 112 (1911); cf. The Federalist, No. 42, at 307 (Wright
cd. 1961).
56. See Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867); C. Black, Structure and
Relationship in Constitutional Law (1969). The Court seems to regard the opportunity
to travel outside the United States as merely an aspect of the "liberty" that under the
Fifth and Fourteenth Amendments cannot be denied without due process. See Zemel
v. Rusk, 381 U.S. 1, 14 (1965). Cf. p. 935 infra.
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in Roe suggests an inference of neither sort-from the intent of the
framers," or from the governmental system contemplated by the Con-
stitution-in support of the constitutional right to an abortion.
What the Court does assert is that there is a general right of privacy
granted special protection-that is, protection above and beyond the
baseline requirement of "rationality"-by the Fourteenth Amend-
ment,58 and that that right "is broad enough to encompass" the right
to an abortion. The general right of privacy is inferred, as it was in
Griswold v. Connecticut,59 from various provisions of the Bill_ of
Rights manifesting a concern with privacy, notably the Fourth Amend-
ment's guarantee against unreasonable searches, the Fifth Amend-
ment's privilege against self-incrimination, and the right, inferred
from the First Amendment, to keep one's political associations secret.60
One possible response is that all this proves is that the things explic-
itly mentioned are forbidden, if indeed it does not actually demon-
strate a disposition not to enshrine anything that might be called a
general right of privacy.61 In fact the Court takes this view when it
suits its purposes. (On the same day it decided Roe, the Court held
that a showing of reasonableness was not needed to force someone to
provide a grand jury with a voice exemplar, reasoning that the Fifth
Amendment was not implicated because the evidence was not "testi-
57. Abortions had, of course, been performed, and intermittently proscribed, for cen-
turies prior to the framing of the Constitution. That alone, however, need not be
dispositive. See p. 929 infra 8c note 97 infra.
58. The Court does not seem entirely certain about which provision protects the right
to privacy and its included right to an abortion.
Appellant would discover this right in the concept of personal "liberty" embodied
in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial,
and sexual privacy said to be protected by the Bill of Rights or its penumbras . . .
or among those rights reserved to the people by the Ninth Amendment ....
93 S. Ct. at 715.
This right of privacy, whether it be founded in the Fourteenth Amendment's con-
cept of personal liberty and restrictions upon state action, as we feel it is, or, as
the District Court deteimined, in the Ninth Amendment's reservation of rights to
the people, is broad enough to encompass a woman's decision whether or not to
terminate her pregnancy.
Id. at 727. This inability to pigeonhole confidently the right involved is not important
in and of itself. It might, however, have alerted the Court to what is an important
question: whether the Constitution speaks to the matter at all.
59. 381 U.S. 479 (1965).
60. See NAACP v. Alabama, 357 U.S. 449 (1958), relied on in Griswold, 381 U.S. at 483.
The Roe Court's reference to Justice Goldberg's concurrence in Griswold for the propo-
sition that "the roots of" the right of privacy can be found in the Ninth Amendment,
93 S. Ct. at 726, misconceives the use the earlier opinion made of that Amendment. See
381 U.S. at 492-93. A reference to "the penumbras of the Bill of Rights," 93 S. Ct. at
726, can have no content independent of a description of some general value or values
inferable from the provisions involved (and therefore assignable to their penumbras).
See San Antonio Independent School Dist. v. Rodriguez, 41 U.S.L.W. 4407, 4438 (U.S.
March 21, 1973) (Marshall, J., dissenting); pp. 929-30 infra.
61. See Katz v. United States, 389 U.S. 347, 364 (1967) (Black, J., dissenting);
Griswold v. Connecticut, 381 U.S. 479, 529 (Stewart, J., dissenting).
928
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Roe v. Wade
monial" and that the> Fourth Amendment did not apply because there
was no "seizure."02) But this approach is unduly crabbed. Surely the
Court is entitled, indeed I think it is obligated, to seek out the sorts
of evils the framers meant to combat and to move against their twen-
tieth century counterparts.03
Thus it seems to me entirely proper to infer a general right of pri-
vacy, so long as some care is taken in defining the sort of right the
inference will support. Those aspects of the First, Fourth and Fifth
Amendments to which the Court refers all limit the ways in which,
and the circumstances under which, the government can go about
gathering information about a person he would rather it did not
have.64 Katz v. United States,65 limiting governmental tapping of tele-
phones, may not involve what the framers would have called a "search,"
but it .plainly involves this general concern with privacy.66 Griswold
is a long step, even a leap, beyond this, but at least the connection is
discernible. Had it been a case that purported to discover in the Con-
stitution a "right to contraception," it would have been Roe's strongest
precedent.67 But the Court in Roe gives no evidence of so regarding
it,68 and rightly not.69 Commentators tend to forget, though the Court
62. United States v. Dionisio, 93 S. Ct. 764 (1973). See also United States v. Mara,
93 S. Ct. 774 (1973) (handwriting exemplars), also decided the same day as Roe, and Couch
v. United States, 93 S. Ct. 611 (1973) (finding no privacy interest in records a taxpayer
had turned over to her accountant) decided thirteen days earlier.
63. [T]he proper scope of [a constitutional provision], and its relevance to con-
temporary problems, must ultimately be sought by attempting to discern the rea-
sons for its inclusion in the Constitution, and the evils it was designed to eliminate.
United States v. Brown, 381 U.S. 437, 442 (1965). See also Weems v. United States. 217
U.S. 349, 373 (1910); Reich, Mr. Justice Black and the Living Constitution, 76 Harv.
L. Rev. 673 (1963); Note, The Bounds of Legislative Specification: A Suggested Approach
to the Bill of Attainder Clause, 72 Yale L.J. 330 (1962).
64. Cf. Fried, Privacy, 77 Yale L.J. 475 (1968). The Third Amendment, mentioned
in Griswold though not in Roe, surely has this aspect to it as well, though it probably
grew in even larger measure out of a general concern with the pervasiveness of military
power.
65. 389 U.S. 347 (1967).
66. Cf. Schmerber v. California, 384 U.S. 757 (1966).
67. Contraception and at least early abortion obviously have much in common. See
Stone, supra note 22.
68. The Roe opinion does not rely on the obvious contraception-abortion comparison
and indeed gives no sign that it finds Griswold stronger precedent than a number of
other cases. See 93 S. Ct. at 726-27; note 79 infra. In fact it seems to go out of its wa\
to characterize Griswold and Eisenstadt v. Baird, 405 U.S. 438 (1972), as cases concerned
with the privacy of the bedroom. See 93 S. Ct. at 730; note 79 infra. It is true that in
Eisenstadt the Court at one point characterized Griswold as protecting the "decision
whether to bear and beget a child," 405 U.S. at 453, but it also, mysteriously in light
of that characterization, pointedly refused to decide whether the earlier case extended
beyond use, to the distribution of contraceptives. Id. at 452-53. Nor is there any pos-
sibility the refusal to extend Griswold in this way was ill-considered; such an extension
would have obviated the Eisenstadt Court's obviously strained performance respecting the
Equal Protection Clause.
69. Admittedly the Griswold opinion is vague and openended, but the language quoted
in the text at note 72 infra seems plainly inconsistent with the view that it is a case
not about likely invasions of the privacy of the bedroom but rather directly enshrining
a right to contraception.
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plainly has not,70 that the Court in Griswold stressed that it was in-
validating only that portion of the Connecticut law that proscribed the
use, as opposed to the manufacture, sale, or other distribution of con-
traceptives. That distinction (which would be silly were the right to
contraception being constitutionally enshrined) makes sense if the case
is rationalized on the ground that the section of the law whose consti-
tutionality was in issue was such that its enforcement would have been
virtually impossible without the most outrageous sort of governmental
prying into the privacy of the home.71 And this, indeed, is the theory
on which the Court appeared rather explicitly to settle:
The present case, then, concerns a relationship lying within the
zone of privacy created by several fundamental constitutional
guarantees. And it concerns a law which, in forbidding the use
of contraceptives rather than regulating their manufacture or sale,
seeks to achieve its goals by means having a maximum destruc-
tive impact upon that relationship. Such a law cannot stand in
light of the familiar principle, so often applied by this Court,
that "a governmental purpose to control or prevent activities con-
stitutionally subject to state regulation may not be achieved by
means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms." NAACP v. Alabama, 377 U.S. 288,
307. Would we allow the police to search the sacred precincts of
marital bedrooms for telltale signs of the use of contraceptives?
The very idea is repulsive to the notions of privacy surrounding
the marriage relationship.72
Thus even assuming (as the Court surely seemed to) that a state can
constitutionally seek to minimize or eliminate the circulation and use
of contraceptives, Connecticut had acted unconstitutionally by select-
ing a means, that is a direct ban on use, that would generate intoler-
ably intrusive modes of data-gathering.73 No such rationalization is
attempted by the Court in Roe— and understandably not, for whatever
else may be involved, it is not a case about governmental snooping.74
70. See Eisenstadt v. Baird, 405 U.S. 438, 443 (1972). Cf. 93 S. Ct. at 730; note 79 infra.
71. Stanley v. Georgia, 394 U.S. 557 (1969), cited by the Court in Roe, might also
be rationalized on such a theory, cf. id. at 565, though it reads more like a "pure" First
Amendment case concerned with governmental attempts at thought control.
72. 381 U.S. at 485-86 (emphasis in original).
73. See also Poe v. Ullman, 367 U.S. 497, 548-49, 553-54 (1961) (Harlan, J., dissenting).
That the Court in Griswold saw fit to quote Boyd v. United States, 116 U.S. 616, 630
(1886). is also significant. See 381 U.S. at 484-85 n.V See also United States v. Grunewald,
233 F.2d 556, 581-82 (2d Cir. 1956) (Frank, J., dissenting).
1 he theory suggested in Poe v. Ullman, supra, at 551-52 (Harlan, J., dissenting), ex-
truding heightened protection to activities (though it turns out to be some activities,
note 31 supra) customarily performed in the home, is also inapplicable to Roe.
74. Of course in individual cases the government might seek to enforce legislation
restricting abortion, as indeed it might seek to enforce any law, in ways that violate the
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Roe v. Wade
The Court reports that some amici curiae argued for an unlimited
right to do as one wishes with one's body. This theory holds, for me
at any rate, much appeal. However, there would have been serious
problems with its invocation in this case. In the first place, more than
the mother's own body is involved in a decision to have an abortion;
a fetus may not be a "person in the whole sense," but it is certainly
not nothing.75 Second, it is difficult to find a basis for thinking that
the theory was meant to be given constitutional sanction: Surely it is
no part of the "privacy" interest the Bill of Rights suggests.70
[I]t is not clear to us that the claim . . . that one has an unlimited
right to do with one's body as one pleases bears a close relation-
ship to the right of privacy . . . .77
Unfortunately, having thus rejected the amici's attempt to define the
bounds of the general constitutional right of which the right to an
abortion is a part,78 on the theory that the general right described has
little to do with privacy, the Court provides neither an alternative
definition79 nor an account of why it thinks privacy is involved. It
Fourth Amendment or otherwise intrude upon the general privacy interest the Bill of
Rights suggests. The Court does not suggest, however, that the laws at issue in Roe are
in any sense unusually calculated to generate such intrusions.
75. See pp. 925-26 supra.
76. See pp. 929-30 supra.
77. 93 S. Ct. at 727.
78. The Court's rejection of the "non-paternalism" argument is of course underlined
by the health regulations it is prepared to allow during the second trimester, before
the interest in protecting the fetus is cognizable. See p. 921 supra.
79. The Court does assert that
only personal rights that can be deemed "fundamental" or "implicit in the concept of
ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this
guarantee of personal privacy. They also make it clear that the right has some ex-
tension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967),
procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-42 (1942), contraception, Eisen-
stadt v. Baird, 405 U.S. 438, 453-54 (1972); id. at 460, 463-65 (White, J., concurring),
family relationships.-Princc v. Massachusetts, 321 U.S. 158, 166 (1944), and child rear-
ing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v.
Nebraska, [262 U.S. 390, 399 (1923)].
93 S. Ct. at 726-27. The Palko test was stated and has heretofore been taken as a definition
(of questionable contemporary vitality) of due process generally, not of privacy. Loving
was a case involving explicit racial discrimination and therefore decidable (and decided)
by a rather straightforward application of the Equal Protection Clause. See Ely, supra
note 28, at 1230. And while the Loving Court did, inexplicably, append a reference to
due process, it did not mention privacy. Skinner invalidated the Oklahoma criminal
sterilization act's distinction between larcenists and embezzlers. Although it too did
not allude to privacy, it did suggest it was applying a higher equal protection standard
than usual. Why it did so is unclear. "Faced with the possibility of a finding of cruel
and unusual punishment and the virtual certainty of invalidation under the clause
proscribing ex post facto laws, the state declined to argue the case on the theory that
the . . . Act was a penal statute, and therefore tried to justify the distinction in •regula-
tory' terms." Ely, supra, at 1235 n'.IOl. That being so, the state was unable to come up
with even a plausible justification for the distinction. Eisenstadt was a case applying
"traditional" equal protection standards, albeit in a less than satisfactory way. See Note.
Legislative Purpose, Rationality, and Equal Protection, 82 Yale L.J. 123 (1972). The
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simply announces that the right to privacy "is broad enough to encom-
pass a woman's decision whether or not to terminate her pregnancy."
Apparently this conclusion is thought to derive from the passage that
immediately follows it:
The detriment that the State would impose upon the, pregnant
woman by denying this choice altogether is apparent. Specific and
direct harm medically diagnosable even in early pregnancy may be
involved. Maternity, or additional offspring, may force upon the
woman a distressful life and future. Psychological harm may.be
imminent. Mental and physical health may be taxed by child care.
There is also the distress, for all concerned, associated with the
unwanted child, and there is the problem of bringing a child into
a family already unable, psychologically and otherwise, to care for
it. In other cases, as in this one, the additional difficulties and con-
tinuing stigma of unwed motherhood may be involved.80
All of this is true and ought to be taken very seriously. But it has
nothing to do with privacy in the Bill of Rights sense or any other the
Constitution suggests.81 I suppose there is nothing to prevent one from
using the word "privacy" to mean the freedom to live one's life without
governmental interference. But the Court obviously does not so use
the term.82 Nor could it, for such a right is at stake in every case. Our
passage cited by the Court in Roe reiterated Griswold's conclusion that privacy in-
terests are threatened by a ban on the use of contraceptives, but declined to decide
whether its rationale should be extended to restrictions on distribution. See p. 930
supra. Prince upheld the application of a child labor law to Jehovah's Witness children
distributing religious literature. It did, however, reiterate the conclusion of Pierce and
Meyer that family relationships are entitled to special protection. Those two cases are
products of "the Lochner era," see pp. 937-43 infra. The vitality of the theory on
which they rested has been questioned, Epperson v. Arkansas, 393 U.S. 97, 105-06 (1968),
and the Court has attempted to recast them as First Amendment cases. Griswold v.
Connecticut, 381 U.S. 479, 482 (1965); cf. Poe v. Ullman, 367 U.S. 497, 533-34 (1961)
(Harlan, J., dissenting). Even reading the cases cited "for all that they are worth," it
is difficult to isolate the "privacy" factor (or any other factor that seems constitutionally
relevant) that unites them with each other and with Roe. So the Court seems to admit
by indicating that privacy has "some extension" to the activities involved, and so it
seems later to grant even more explicitly.
The pregnant woman cannot be isolated in her privacy. She carries an embryo and,
later, a fetus. . . . The situation therefore is inherently different from marital in-
timacy, or bedroom possession of obscene material, or marriage, or procreation, or
education, with which Eisenstadt, Griswold, Stanley, Loving, Skinner, Pierce, and
Meyer were respectively concerned.
93 S. Ct. at 730.
80. 93 S. Ct. at 727. See also id. at 757 (Douglas, J., concurring).
81. It might be noted that most of the factors enumerated also apply to the incon-
venience of having an unwanted two-year-old, or a senile parent, around. Would the
Court find the constitutional right of privacy invaded in those situations too? I find
it hard to believe it would; even if it did, of course, it would not find a constitutional
right io "terminate" the annoyancc-presumably because "real" persons are now in-
volved. But cf. p. 926 supra & note 48 supra. But what about ways of removing the
annoyance thai do not involve "termination"? Can they really be matters of constitu-
tional entitlement?
82. But cf. 93 S. Ct. at 758-59 (Douglas, J., concurring).
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life styles are constantly limited, often seriously, by governmental regu-
lation; and while many of us would prefer less direction, granting that
desire the status of a preferred constitutional right would yield a sys-
tem of "government" virtually unrecognizable to us and only slightly
more recognizable to our forefathers.83 The Court's observations con-
cerning the serious, life-shaping costs of having a child prove what
might to the thoughtless have seemed unprovable: That even though a
human life, or a potential human life, hangs in the balance, the moral
dilemma abortion poses is so difficult as to be heartbreaking. What
they fail to do is even begin to resolve that dilemma so far as our gov-
ernmental system is concerned by associating either side of the balance
with a value inferable from the Constitution.
But perhaps the inquiry should not end even there. In his famous
Carolene Products footnote, Justice Stone suggested that the interests
to which the Court can responsibly give extraordinary constitutional
protection include not only those expressed in the Constitution but
also those that are unlikely to receive adequate consideration in the
political process, specifically the interests of "discrete and insular
minorities" unable to form effective political alliances.84 There can
be little doubt that such considerations have influenced the direction,
if only occasionally the rhetoric, of the recent Courts. My repeated
efforts to convince my students that sex should be treated as a "sus-
pect classification" have convinced me it is no easy matter to state
such considerations in a "principled" way. But passing that problem,
Roe is not an appropriate case for their invocation.
Compared with men, very few women sit in our legislatures, a fact
I believe should bear some relevance— even without an Equal Rights
Amendment— to the appropriate standard of review for legislation that
favors men over women.85 But no fetuses sit in our legislatures. Of
83. Cf. Katz v. United States, 389 U.S. 347, 350-51 (1967).
84. United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).
85. This is not the place for a full treatment of the subject, but the general idea
is this: Classifications by sex, like classifications by race, differ from the usual clas
sification— to which the traditional "reasonable generalization" standard is properly ap-
plied—in that they rest on "we-they" generalizations as opposed to a "they-ihcy" gen-
eralization. Take a familiar example of the usual approach, Williamson v. Let- Optical
Co., 348 U.S. 483 (1955). Of course few legislators are opticians. But few are optomcimn
either. Thus while a decision to distinguish opticians from optometrists will incorporate
a stereotypical comparison of two classes of people, it is a comparison of two 'they"
stereotypes, viz. "They [opticians] are generally inferior to or not so well qualified as
they [optometrists] are in the following respect(s). which we find sufficient to justify
the classification: . . . ." However, legislators traditionally have not only not been black
(or female); they have been white (and male). A decision to distinguish blacks from
whites (or women from men) will therefore have its roots in a comparison between
a "we" stereotype and a "they" stereotype, viz. "They [blacks or women] are generally
inferior to or not so well qualified as we [whites or men] are in the following respeci(s).
which we find sufficient to justify the classification: . . . ."
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course they have their champions, but so have women. The two inter-
ests have clashed repeatedly in the political arena, and had continued
to do so up to the date of the opinion, generating quite a wide variety
of accommodations.80 By the Court's lights virtually all of the legisla-
tive accommodations had unduly favored fetuses; by its definition of
victory, women had lost. Yet in every legislative balance one of the
competing interests loses to some extent; indeed usually, as here, they
both do. On some occasions the Constitution throws its weight on the
side of one of them, indicating the balance must be restruck. And on
others-and this is Justice Stone's suggestion-it is at least arguable
that, constitutional directive or not, the Court should throw its weight
on the side of a minority demanding in court more than it was able
to achieve politically. But even assuming this suggestion can be given
principled content, it was clearly intended and should be reserved for
those interests which, as compared with the interests to which they
have been subordinated, constitute minorities unusually incapable of
protecting themselves.87 Compared with men, women may constitute
The choice between classifying on the basis of a comparative generalization and at-
tempting to come up with a more discriminating formula always involves balancing
the increase in fairness which greater individualization will produce against the added
costs it will entail. It is no startling psychological insight, however, that most of us are
delighted to hear and prone to accept comparative characterizations of groups that sug-
gest that the groups to which we belong are in some way superior to others. (I would
be inclined to exclude most situations where the "we's" used to be "they's," cf. Ferguson
v. Skrupa, 372 U.S. 726 (1963), and would therefore agree that the unchangeability of
the distinguishing characteristic is indeed relevant, though it is only part of the story.)
The danger is therefore greater in we-they situations that we will overestimate the
validity of the proposed stereotypical classification by seizing upon the positive myths
about our own class and the negative myths about theirs— or indeed the realities respecting
some or most members of the two classes— and too readily assuming that virtually the
entire membership of the two classes fit the stereotypes and therefore that not many of
"them" will be unfairly deprived, nor many of "us" unfairly benefitted, by the proposed
classification. In short, I trust your generalizations about the differences between my
gang and Wilfred's more than I do your generalizations about the differences between
my gang and yours.
Of course most judges, like most legislators, are white males, and there is no par-
ticular reason to suppose they are any more immune to the conscious and unconscious
temptations that inhere in we-they generalizations. Obviously the factors mentioned can
distort the evaluation of a classification fully as much as they can distort its forma-
tion. But all this is only to suggest that the Court has chosen the right course in re-
viewing classifications it has decided are suspicious— a course not of restriking or second-
guessing the legislative cost-benefit balance but rather of demanding a congruence be-
tween the classification and its goal as perfect as practicable. When in a given situation
you can't be trusted to generalize and I can't be trusted to generalize, the answer is not
to generalize— so long as a bearable alternative exists. And here, the Court has recog-
nized, one does— the alternative of forcing the system to absorb the additional cost that
case by case determinations of qualification will entail. Legislatures incur this cost volun-
tarily in a great many situations, and courts have on other occasions forced them to do
so where constitutionally protected interests will be threatened by an imperfectly fitting
classification. The unusual dangers of distortion that inhere in a we-they process of
comparative generalization, the Court seems to have been telling us in the racial clas-
sification cases, also demand that we bear the increased cost of individual justice.
86. See 93 S. Ct. at 708-10, 720, 723-24, 742-43, 752-55.
87. If the mere fact that the classification in issue disadvantages a minority whose
viewpoint was not appreciated by a majority of the legislature that enacted it were
•ufficicnt to render it suspect, all classifications would be suspect.
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such a "minority"; compared with the unborn, they do not.88 I'm not
sure I'd know a discrete and insular minority if I saw one, but con-
fronted with a multiple choice question requiring me to designate
(a) women or (b) fetuses as one, I'd expect no credit for the former
answer.89
Of course a woman's freedom to choose an abortion is part of the
"liberty" the Fourteenth Amendment says shall not be denied without
due process of law, as indeed is anyone's freedom to do what he wants.
But "due process" generally guarantees only that the inhibition be
procedurally fair and that it have some "rational" connection— though
plausible is probably a better word90— with a permissible governmental
goal.91 What is unusual about Roe is that the liberty involved is
accorded a far more stringent protection, so stringent that a desire to
preserve the fetus's existence is unable to overcome it— a protection
more stringent, I think it fair to say, than that the present Court ac-
cords the freedom of the press explicitly guaranteed by the First
Amendment.92 What is frightening about Roe is that this super-pro-
tected right is not inferable from the language of the Constitution,
88. Even if the case could be made that abortion is an issue that pits the interests
of men against those of women, that alone would not bring it within a theory that
renders suspect classifications based on generalizations about the characteristics of men
and women. And even if there were some way to expand the theory (and I confess I
cannot see what judicial remedy would be appropriate were the theory so expanded, but
see note 85 supra, third paragraph) to cover all "interests of men versus interests of
women" situations, it will take some proving to establish that this is one:
[D]ecisions in society are made by those who have power and not by those who
have rights. Husbands and boy friends may in the end wield the power and make
the abortion decision. Many women may be forced to have abortions not because
it is their right, but because they are forced by egocentric men to submit to this
procedure to avoid an unwanted inconvenience to men.
Stone, supra note 22.
89. It might be suggested that legislation restricting abortion had been kept on the
books by the efforts of an intense minority and did not represent the will of most
legislative majorities. Though I am aware of no basis for inferring this is any truer
here than it is with respect to other sorts of legislation, see also note 86 supra, it is
the sort of claim that is hard to disprove. (The phenomenon described at pp. 946-47
infra, one of relief that the issue has been taken out of the political arena, is a very
different matter.) In any event it is not the Court's job to repeal such legislation. In the
first place there is nothing unusual, and I was not aware there was anything wrong,
with an intense minority's compromising on issues about which it feels less strongly in
order to garner support on those it cares most about. Moreover, precisely because the
claims involved are difficult to evaluate, I would not want to entrust to the judiciary
authority to guess about them— certainly not under the guise of enforcing the Con-
stitution. Leaving aside the arguable case of a law that has been neither legislatively
considered nor enforced for decades, see A. Bickel, The Least Dangerous Branch 145-56
(1962), the Court should rest its declaration of unconstitutionality, if any, on more than
a guess about how widespread and intense the support for the law "really" is.
90. The claimed connection is often empirical, causal or normative. About all that
does not seem to become involved is formal logic. See p. 941 infra; Ely, supra note
28, at 1237-49. „ .
91. Even this statement of the demands of "substantive due process is too strong
for many Justices and commentators, who deny that any such doctrine should exist.
See, e.g., pp. 937-38 infra.
92. See Branzburg v. Hayes, 408 U.S. 665 (1972).
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the framers' thinking respecting the specific problem in issue, any
general value derivable from the provisions they included,93 or the
nation's governmental structure. Nor is it explainable in terms of
the unusual political impotence of the group judicially protected vis-
a-vis the interest that legislatively prevailed over it.94 And that, I be-
lieve-the predictable95 early reaction to Roe notwithstanding ("more
of the same Warren-type activism"96)-is a charge that can responsibly
be leveled at no other decision of the past twenty years.97 At times the
93 See pp 928-33 supra. Necessarily, a claim of this sort can never be established
beyond doubt; one can only proceed by examining the claims of those values he thinks,
or others have suggested, are traceable to the Constitution. It is always possible, how-
ever that someone will develop a general theory of entitlements that encompasses a given
case and plausibly demonstrate its constitutional connections. It is also possible that had
the constitutional right to an abortion been developed as constitutional doctrines usually
are-that is incrementally, rather than by the quantum jump of Roe-the connection
of the first step with the Constitution, and that of each succeeding step with its prede-
cessor, would have seemed more plausible. I cannot bring myself to believe, however,
that any amount of gradualism could serve to make anything approaching the entire
inference convincing.
94. The thing about permitting disparity among state laws regulating abortion that
/ find most troubling is not mentioned by the Court, and that is that some people can
afford the fare to a neighboring state and others cannot. Of course this situation pre-
vails with respect to divorce and a host of other sorts of laws as well. I wish someone
could develop a theory that would enable the Court to take account of this concern
without implying a complete obliteration of the federal system that is so obviously at
the heart of the Constitution's plan. I have not been able to do so. See note 87 supra.
95. See pp. 943-45 infra.
96. See, e.g., Abortion, The New Republic, Feb. 10, 1973, at 9; Stone, supra note 22.
97. Of course one can disagree with the lengths to which the inferences have been
taken; my point is that the prior decisions, including those that have drawn the most
fire, at least started from a value singled out by, or fairly inferable from, the Con-
stitution as entitled to special protection. Whatever one may think of the code of con-
duct laid down in Miranda v. Arizona, 384 U.S. 436 (1966), the Constitution does talk
about the right to counsel and the privilege against self-incrimination. Whatever one
may think of the strictness of the scrutiny exercised in Furman v. Georgia, 408 U.S. 238
(1972), the Eighth Amendment surely does indicate in a general way that punishments
are to be scrutinized for erratic imposition ("unusual") and severity disproportionate
to any good they can be expected to accomplish ("cruel").
Note that the claim in the text has to do with the capacity of the earlier decisions
to be rationalized in terms of some value highlighted by the Constitution, not with the
skill with which they were in fact rendered. It is now pretty generally recognized, for
example, that the various "wealth discrimination" cases could better have been de-
fended in terms of the constitutional attention paid explicitly or implicitly to the "goods"
whose distribution was in issue— the right to vote and the assurance of fair judicial
procedures. See, e.g., Michelman, Foreword: On Protecting the Poor Through the Four-
teenth Amendment, 83 Harv. L. Rev. 7 (1969). Reynolds v. Sims, 377 U.S. 533 (1964), is
a badly articulated opinion. Its only response to the argument made by Justice Stewart—
that since an equal protection claim was involved, a rational defense of a disparity among
the "weights" of votes should suffice— was simply to announce that the goals Justice
Stewart had in mind were off limits. See Ely, supra note 28, at 1226-27. But even Justice
Stewart could not take the equal protection mold too seriously, for he added he would
not approve a plan that permitted "the systematic frustration of the will of a majority
of the electorate of the State." Lucas v. Colorado Gen. Assembly, 377 U.S. 713, 753-54
(1964) (footnote omitted). Such a plan, however, could be quite "rational" in terms of
the sort of goals Justice Stewart had in mind, goals that in other contexts would count
as legitimate. Obviously Justice Stewart was moved to some extent by the notion that a
system whereby a minority could perpetuate its control of the government was out of
accord with the system of government envisioned by the framers. See also Kramer v.
Union Free School District No. 15, 395 U.S. 621, 628 (1969) (Warren, C.J., for the Court).
This was what moved the Court too, though much further. And though the Court did
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inferences the Court has drawn from the values the Constitution
marks for special protection have been controversial, even shaky, but
never before has its sense of an obligation to draw one been so obvi-
ously lacking.
IV
Not in the last thirty-five years at any rate. For, as the received
learning has it, this sort of thing did happen before, repeatedly. From
its 1905 decision in Lochner v. New York98 into the 1930's the Court,
frequently though not always under the rubric of "liberty of contract,"
employed the Due Process Clauses of the Fourteenth and Fifth Amend-
ments to invalidate a good deal of legislation. According to the dis-
senters at the time and virtually all the commentators since, the Court
had simply manufactured a constitutional right out of whole cloth
and used it to superimpose its own view of wise social policy on those
of the legislatures. So indeed the Court itself came to see the matter,
and its reaction was complete:
There was a time when the Due Process Clause was used by this
Court to strike down laws which were thought unreasonable, that
is, unwise or incompatible with some particular economic or social
philosophy. In this manner the Due Process Clause was used, for
example, to nullify laws prescribing maximum hours for work in
bakeries, Lochner v. New York, 198 U.S. 45 (1905), outlawing
not give the reason, there is one: a fear that by attempting to apply Justice Stewart's
"in between" standard it would become embroiled in unseemly "political" inquiries
into the power alignments prevalent in the various states. See Deutsch, Neutrality, Legiti-
macy, and the Supreme Court: Some Intersections Between Law and Political Science, 20
Stan. L. Rev. 169, 246-47 (1968); cf. note 89 supra; but cf. Mahan v. Howell, 41 U.S.L.W.
4277 (U.S. Feb. 20, 1973). Though the point is surely debatable, the impulse is under-
standable, and the fight in Reynolds, like that in Miranda, turns out to be not so much
over the underlying values as over the need for a "clean" prophylactic rule that will keep
the courts out of messy factual disputes.
In his concurrence in' Roe, Justice Stewart lists ten cases to prove that "the Due
Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly
named in the Bill of Rights." 93 S. Ct. at 734. His point is obviously that the freedoms
involved were given protection above and beyond the ordinary demand for a "rational
defense and therefore Roe is just more of the same. It is not. Schware v^ Bd.of Bar
Examiners, 353 U.S. 232 (1957); Aptheker v. Secretary of State, 378 U.S. 500 (1964); and
Kent v. Dulles, 357 U.S. 116 (1958), are all obviously rationalizable as First Amendment
cases and indeed have since been so rationalized. Concerning Schware, see Cnswold I v.
Connecticut, 381 U.S. 479, 483 (1965); cf. United States v. Brown. 381 U.S. 437. 456 (1965).
As to Aptheker and Kent, see Zemel v. Rusk, 381 U.S. 1, 16 (1965); United States v.
Brown, 381 U.S. at 456. Concerning Pierce v. Society of Sisters and Meyer v. Nebraska,
see note 79 supra. As to Shapiro v. Thompson, 394 U.S. 618 (1969), and United States
v. Guest, 383 U.S. 745 (1966), see p. 927 supra. With respect to Carrington v. Rash. 380
U.S. 89 (1965), see the preceding paragraph of this footnote and C. Black, supra note 50.
Concerning Boiling v. Sharpe, 347 U.S. 497 (1954), see note 79 supra; but cf. Lindc.
Judges, Critics, and the Realist Tradition, 82 Yale L.J. 227, 233-35 (1972) And . nmpare
Truax v. Raich, 239 U.S. 33 (1915), with Graham v. Richardson, 403 U.S. 365 (19/1).
and note 85 supra.
98. 198 U.S. 45 (1905).
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"yellow dog" contracts, Coppage v. Kansas, 236 U.S. 1 (1915),
setting minimum wages for women, Adkins v. Children's Hospi-
tal 261 U S. 525 (1923), and fixing the weight of loaves of bread,
Jay Burns Baking Co. v. Bryan, 264 U.S. 504 (1924). This intru-
sion by the judiciary into the realm of legislative value judg-
ments was strongly objected to at the time .... Mr. Justice
Holmes said,
"I think the proper course is to recognize that a state legisla-
ture 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 hot
to extend such prohibitions beyond their obvious meaning
by reading into them conceptions of public policy that the
particular Court may happen to entertain."
. . The doctrine that prevailed in Lochner, Coppage, Adkins,
Burns, and like cases— that due process authorizes courts to hold
laws unconstitutional when they believe the legislature has acted
unwisely-has long since been discarded. We have returned to the
original constitutional proposition that courts do not substitute
their social and economic beliefs for the judgment of legislative
bodies, who are elected to pass laws."
It may be objected that Lochner et ai. protected the "economic
rights" of businessmen whereas Roe protects a "human right." It
should be noted, however, that not all of the Lochner series involved
economic regulation;100 that even those that did resist the "big busi-
ness" stereotype with which the commentators tend to associate them;
and that in some of them the employer's "liberty of contract" claim
was joined by the employee, who knew that if he had to be employed
on the terms set by the law in question, he could not be employed at
all.101 This is a predicament that is economic to be sure, but is not
without its "human" dimension. Similarly "human" seems the pre-
dicament of the appellees in the 1970 case of Dandridge v. Williams,102
who challenged the Maryland Welfare Department's practice of limit-
ing AFDC grants to $250 regardless of family size or need. Yet in lan-
guage that remains among its favored points of reference,103 the
99. Ferguson v. Skrupa, 372 U.S. 726, 729-30 (1963) (footnotes omitted). See also
Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 533-37 (1949).
100. See Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S.
390 (1923).
101. E.g., Adkins v. Children's Hospital, 261 U.S. 525, 542-43 (1923). See also Adair
v. United Stales, 208 U.S. 161, 172-73 (1908). Cf. Hammer v. Dagenhart, 247 U.S. 251 (1918).
102. 397 U.S. 471 (1970).
103. See, e.g., San Antonio Independent School Dist. v. Rodriguez, 41 U.S.L.W. 4407,
4417 (U.S. March 2i, 1973); Ortwein v. Schwab, 41 U.S.L.W. 3473, 3474 (U.S. March 5, 1973);
United States v. Kras, 93 S. Ct. 631, 638 (1973).
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Court, speaking through Justice Stewart,104 dismissed the complaint
as "social and economic" and therefore essentially Lochneresque.
[W]e deal with state regulation in the social and economic field,
not affecting freedoms guaranteed by the Bill of Rights. . . . For
this Court to approve the invalidation of state economic or social
regulation as "overreaching" would be far too reminiscent of an
era when the Court thought the Fourteenth Amendment gave it
power to strike down state laws "because they may be unwise,
improvident, or out of harmony with a particular school of
thought." . . . That era long ago passed into history. . . .
To be sure, the cases cited . . . have in the main involved state
regulation of business or industry. The administration of public
welfare assistance, by contrast, involves the most basic economic
needs of impoverished human beings. We recognize the dramati-
cally real factual difference between the cited cases and this one,
but we can find no basis for applying a different constitutional
standard. ... It is a standard . . . that is true to the principle that
the Fourteenth Amendment gives the federal courts no power to
impose upon the States their views of wise economic or social
policy.105
It may be, however— at least it is not the sort of claim one can disprove
—that the "right to an abortion," or noneconomic rights generally,
accord more closely with "this generation's idealization of America"1
than the "rights" asserted in either Lochner or Dandridge. But that
attitude, of course, is precisely the point of the Lochner philosophy,
which would grant unusual protection to those "rights" that somehow
seem most pressing, regardless of whether the Constitution suggests any
special solicitude for them. The Constitution has little to say about
contract,107 less about abortion, and those who would speculate about
which the framers would have been more likely to protect may not be
pleased with the answer. The Court continues to disavow the philos-
ophy of Lochner.108 Yet as Justice Stewart's concurrence admits, it is
impossible candidly to regard Roe as the product of anything else.105
104. But cf. note 109 infra.
105. 397 U.S. at 484-86. , „ . ,. _ . p, .,,
106. Karst & Horowitz, Reitman v. Mulkey: A Telophase of Substantive ^ualProtf^
lion, 1967 Sup. Ct. Rev. 39, 57-58; cf. 2 L. Pollak, The Constitution and the Supreme
Court: A Documentary History 266-67 (1966).
107. But see U.S. Const, art. I, § 10; Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).
108. See note 103 supra. „ _ x,.„.r
109. 93 S. Ct. at 734. The only "Lochner era" cases Justice Stewart cites are Meyer
and Pierce. It therefore may be he intends to pursue some sort of "economic-nonec onom-
ic" line in selecting rights entitled to special protection. But see text at note 105 supra
The genera! philosophy of constitutional adjudication, however, is the same. See tex
notes 106-07 mpra. Justice Stewart rather clearly intends his Roe opinion as a repudiation
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That alone should be enough to damn it. Criticism of the Lochner
philosophy has been virtually universal and will not be rehearsed here.
I would, however, like to suggest briefly that although Lochner and
Roe are twins to be sure, they are not identical. While I would hesi-
tate to argue that one is more defensible than the other in terms of
judicial style, there are differences in that regard that suggest Roe^ may
turn out to be the more dangerous precedent.
All the "superimposition of the Court's own value choices" talk is,
of course, the characterization of others and not the language of Loch-
ner or its progeny. Indeed, those cases did not argue that "liberty of
contract" was a preferred constitutional freedom, but rather repre-
sented it as merely one among the numerous aspects of "liberty" the
Fourteenth Amendment protects, therefore requiring of its inhibitors
a "rational" defense.
In our opinion that section ... is an invasion of the personal lib-
erty, as well as of the right of property, guaranteed by that Amend-
ment. Such liberty and right embraces the right to make contracts
for the purchase of the labor of others and equally the right to
make contracts for the sale of one's own labor; each right, how-
ever, being subject to the fundamental condition that no contract,
whatever its subject matter, can be sustained which the law, upon
reasonable grounds, forbids as inconsistent with the public inter-
ests or as hurtful to the public order or as detrimental to the com-
mon good.110
Undoubtedly, the police power of the State may be exerted to
protect purchasers from imposition by sale of short weight
loaves. . . . Constitutional protection having been invoked, it is
the duty of the court to determine whether the challenged provi-
sion has reasonable relation to the protection of purchasers of
bread against fraud by short weights and really tends to accom-
plish the purpose for which it was enacted.111
of his Griswold dissent, and not simply as an acquiescence in what the Court did in the
earlier case. See 93 S. Ct. at 735.
Having established to his present satisfaction that the Due Process Clause extends
unusual substantive protection to interests the Constitution nowhere marks as special,
but see note 97 supra, he provides no further assistance respecting the difficult ques-
tions before the Court, but rather defers to the Court's "thorough demonstration" that
the interests in protecting the mother and preserving the fetus cannot support the legis-
lation involved. But see pp. 922 26 supra.
110. Adair v. United States, 208 U.S. 161, 172 (1908). See also id. at 174.
111. Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 513 (1924). See also id. at 517;
Meyei \. Nebraska, 262 U.S. 390, 399-400, 403 (1923); Adkins v. Children's Hospital, 261
U.S. 525, 529 (1923); Coppage v. Kansas, 236 U.S. 1, 14 (1915); Lochner v. New York,
198 U.S. 45, 53, 54, 56, 57 (1905); id. at 68 (Harlan, J., dissenting).
940
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Roe v. Wade
Thus the test Lochner and its progeny purported to apply is that which
would theoretically control the same questions today: whether a plausi
ble argument can be made that the legislative action furthers some
permissible governmental goal."* The trouble, of course is they mis
applied it. Roe, on the other hand, is quite explicit that the right to
an abortion is a "fundamental" one, requiring not merely a "rational-
defense for its inhibition but rather a "compelling" one.
A second difference between Lochner et al. and Roe has to do with
the nature of the legislative judgments being second-guessed. In the
main, the "refutations" tendered by the Lochner series were of two
sorts. The first took the form of declarations that the goals in terms
of which the legislatures' actions were defended were impermissible.
Thus, for example, the equalization of unequal bargaining power and
the strengthening of the labor movement are simply ends the legis-
lature had no business pursuing, and consequently its actions cannot
thereby be justified.1^ The second form of "refutation" took the form
not of denying the legitimacy of the goal relied on but rather of deny-
ing the plausibility of the legislature's empirical judgment that its
action would promote that goal.
In our judgment it is not possible in fact to discover the connec-
tion between the number of hours a baker may work in the bakery
and the healthful quality of the bread made by the workman.114
There is no evidence in support of the thought that purchasers
have been or are likely to be induced to take a nine and a half
or a ten ounce loaf for a pound (16 ounce) loaf, or an eighteen
and a half or a 19 ounce loaf for a pound and a half (24 ounce)
loaf; and it is contrary to common experience and unreasonable
to assume that there could be any danger of such deception.115
The Roe opinion's "refutation" of the legislative judgment that anti-
abortion statutes can be justified in terms of the protection of the fetus
takes neither of these forms. The Court grants that protecting the fetus
is an "important and legitimate" governmental goal,116 and of course
112. But cf. note 91 supra.
1Ti13- Coppage v. Kansas, 236 U.S. 1, 16-17, 17-18 (1915). See also Meyer v. Nebraska, 262
U.S 390, 403 (1923); Adair v. United States, 208 U.S. 161, 174-75 (1908); Lochner v. New
York, 198 U.S. 45, 57-58 (1905).
114. Lochner v. New York, 198 U.S. 45, 62 (1905). See also id. at 57, 58, 59, 64.
115. Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 517 (1924). See also Coppage v.
Kansas, 236 U.S. 1, 15-16 (1915).
116. Note 8 supra.
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it does not deny that restricting abortion promotes it.117 What it does,
instead, is simply announce that that goal is not important enough to
sustain the restriction. There is little doubt that judgments of this sort
were involved in Lochner et al.,116 but what the Court said in those
cases was not that the legislature had incorrectly balanced two legiti-
mate but competing goals, but rather that the goal it had favored
was impermissible or the legislation involved did not really promote
it.119
Perhaps this is merely a rhetorical difference, but it could prove to
be important. Lochner et al. were thoroughly disreputable decisions;
but at least they did us the favor of sowing the seeds of their own
destruction. To say that the equalization of bargaining power or the
fostering of the labor movement is a goal outside the ambit of a "police
power" broad enough to forbid all contracts the state legislature can
reasonably regard "as inconsistent with the public interests or as hurt-
ful to the public order or as detrimental to the common good"120 is
to say something that is, in a word, wrong.121 And it is just as obvi-
117. The Lochner approach to factual claims is, however, suggested by the Court's
ready acceptance— by way of nullifying the state's health interest during the first trimester
—of the data adduced by appellants and certain amici to the effect that abortions per-
formed during the first trimester are safer than childbirth. 93 S. Ct. at 725. This is not
in fact agreed to by all doctors— the data are of course severely limited— and the Court's
view of the matter is plainly not the only one that is "rational", under the usual standards.
See San Antonio Independent School Dist. v. Rodriguez, 41 U.S.L.W." 4407, 4420 (U.S.
March 21, 1973); Eisenstadt v. Baird, 405 U.S. 438, 470 (1972) (Burger, C.J., dissenting):
The actual hazards of introducing a particular foreign substance into the human
body are frequently controverted, and I cannot believe the unanimity of expert
opinion is a prerequisite to a State's exercise of its police power, no matter what
the subject matter of the regulation. Even assuming no present dispute among medical
authorities, we cannot ignore that it has become commonplace for a drug or food
additive to be universally regarded as harmless on one day and to be condemned
as perilous the next. It is inappropriate for this Court to overrule a legislative clas-
sification by relying on the present consensus among leading authorities. The com-
mands of the Constitution cannot fluctuate with the shifting tides of scientific opinion.
I suppose the Court's defense of its unusual reaction to the scientific data would be that
the case is unusual, in that it involves a "fundamental" interest. It should be noted,
however, that even a sure sense that abortion during the first trimester is safer than
childbirth would serve only to blunt a state's claim that it is, for reasons relating to
maternal health, entitled to proscribe abortion; it would not support the inference the
Court draws, that regulations designed to make the abortion procedure safer during
the first trimester are impermissible. See 93 S. Ct. at 732.
118. Cf. Meyer v. Nebraska, 262 U.S. 390 (1923); Adkins v. Children's Hospital, 261
U.S. 525, 546 (1923), Lochner v. New York, 198 U.S. 45, 53-54, 57 (1905).
119. And even those cases that interlaced such claims with indications of a balancing
list, tee note 118 supra, sowed the seeds of their own reversal. See text at notes 120-21
infra. A claim that X weighs more than Y will have little persuasive or precedential
value if it is bracketed with an indefensible assertion that Y is nothing.
120. Adair v. United States, 208 U.S. 161, 172 (1908), quoted more fully at p. 932
supra. See also, e.g., Lochner v. New York, 198 U.S. 45, 54 (1905).
121. Wrong, that is, if one assigns to the words anything resembling their ordinary
meanings. See, e.g., Daniel v. Family Insurance Co., 336 U.S. 220, 224 (1949). One can of
course argue that states should also have governments of few and defined powers, that
they should not be vested with broad authority to go after whatever they regard as evils.
But the Federal Constitution imposes no such restraint, and according to the test ac-
cepted even at the time of Lochner such authority, at least as a matter of federal con-
stitutional law, does exist.
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ously wrong to declare, for example, that restrictions on long working
hours cannot reasonably be said to promote health and safety.1-- Roe's
"refutation" of the legislative judgment, on the other, is not obviously
wrong, for the substitution of one nonrational judgment for anotlur
concerning the relative importance of a mother's opportunity to live
the life she has planned and a fetus's opportunity to live at all, can
be labeled neither wrong nor right. The problem with Roe is not so
much that it bungles the question it sets itself,123 but rather that it sets
itself a question the Constitution has not made the Court's business.
It looks different from Lochner— it has the shape if not the substance
of a judgment that is very much the Court's business, one vindicating
an interest the Constitution marks as special— and it is for that reason
perhaps more dangerous. Of course in a sense it is more candid than
Lochner.12* But the employment of a higher standard of judicial re-
view, no matter how candid the recognition that it is indeed higher,
loses some of its admirability when it is accompanied by neither a
coherent account of why such a standard is appropriate nor any indi-
cation of why it has not been satisfied.
I do wish "Wolf!" hadn't been cried so often. When I suggest to
my students that Roe lacks even colorable support in the constitutional
text, history, or any other appropriate source of constitutional doc-
trine, they tell me they've heard all that before. When I point out they
haven't heard it before from me, I can't really blame them for smiling.
But at least crying "Wolf!" doesn't influence the wolves; crying
"Lochner!" may. Of course the Warren Court was aggressive in enforc-
ing its ideals of liberty and equality. But by and large, it attempted to
defend its decisions in terms of inferences from values the Constitution
marks as special.125 Its inferences were often controversial, but just as
122. It is possible, of course, that I am here time-bound, and that the wrongness of
Lochner el al. is obvious only because a half century of commentary has made it so
While I cannot rebut this, I am inclined to doubt it. In those decisions the Court stated
the applicable tests in language much the same as would be used today-language the
dissents cogently demonstrated could not be reconciled with the results That views witfl
which one disagrees can be reasonable nonetheless was a concept hardly new to lawyen
even in 1900. „ „ _ ___ .,„-«> c „ „/,-
123. But compare 93 S. Ct. at 732 with Doe v. Bolton, 93 S. Ct. ,39 (1973). See also
PP12422 WithTespect to the Equal Protection Clause, by way of contrast, <}e Crort h^
taken to claiming it is simply* applying the traditional rationality standard whether
is or not. For a more optimistic view of the development see Gun t her, ^™"rf- /n
Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Pro
lection, 86 Harv. L. Rev. 1 (1972). . nnig> „, . _
125. See note 97 supra. The "footnote 4" argument suggested in note 85 supra re
sponds not so much to any clear constitutional concern with equality for women (but
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often our profession's prominent criticism deigned not to address them
on their terms and contented itself with assertions that the Court was
indulging in sheer acts of will, ramming its personal preferences down
the country's throat-that it was, in a word, Lochnering. One possible
judicial response to this style of criticism would be to conclude that
one might as well be hanged for a sheep as a goat: So long as you're
going to be told, no matter what you say, that all you do is Lochner,
you might as well Lochner. Another, perhaps more likely in a new
appointee, might be to reason that since Lochnering has so long been
standard procedure, "just one more" (in a good cause, of course) can
hardly matter. Actual reactions, of course, are not likely to be this self-
conscious, but the critical style of offhand dismissal may have taken
its toll nonetheless.
Of course the Court has been aware that criticism of much that it
has done has been widespread in academic as well as popular circles.
But when it looks to the past decade's most prominent academic criti-
cism, it will often find little there to distinguish it from the popular.
Disagreements with the chain of inference by which the Court got
from the Constitution to its result, if mentioned at all, have tended
to be announced in the most conclusory terms, and the impression
has often been left that the real quarrel of the Academy, like that of
the laity, is with the results the Court has been reaching and perhaps
with judicial "activism" in general.126 Naturally the Court is sensitive
to criticism of this sort, but these are issues on which it will, when
push comes to shove, trust its own judgment. (And it has no reason
not to: Law professors do not agree on what results are "good," and
even if they did, there is no reason to assume their judgment is any
better on that issue than the Court's.) And academic criticism of the
sort that might (because it should) have some effect— criticism suggest-
ing misperceptions in the Court's reading of the value structure set
forth in the document from which it derives its authority, or unjusti-
fiable inferences it has drawn from that value structure— has seemed
see U.S. Const, amend. XIX) as to the unavoidable obligation to give "principled" content
to the facially inscrutable Equal Protection Clause. See pp. 948-49 infra. Virtually
everyone agrees that classifications by race were intended to be and should be tested
by a higher than usual standard, and that at least some others— though the nature and
length of the list arc seriously disputed— are sufficiently "racelike" to merit comparable
treatment. See, e.g., Graham v. Richardson, 403 U.S. 365 (1971). The problem thus be-
comes one of identifying those features of racial classifications that validly compel the
deviation from the usual standard, and in turn those classifications that share those
features.
126. See, e.g., Kurland, Foreword: "Equal in Origin and Equal in Title to the Legis-
lative and Executive Branches of Government, 78 Harv. L. Rev. 143, 144-45, 149, 163, 175
(1964).
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for a time somehow out of fashion, the voguish course being simply
to dismiss the process by which a disfavored result was reached as
Lochnering pure and simple. But if the critics cannot trouble them-
selves with such details, it is difficult to expect the Court to worry
much about them either.
This tendency of commentators to substitute snappy dismissal for
careful evaluation of the Court's constitutional inferences— and of
course it is simply a tendency, never universally shared and hopefully
on the wane— may include among its causes simple laziness, boredom
and a natural reluctance to get out of step with the high-steppers. But
in part it has also reflected a considered rejection of the view of con-
stitutional adjudication from which my remarks have proceeded. There
is a powerful body of opinion that would dismiss the call for substan-
tive crit-icism— and its underlying assumption that some constitutional
I inferences are responsible while others are not— as naive. For, the the-
ory goes, except as to the most trivial and least controversial questions
(such as the length of a Senator's term), the Constitution speaks in the
vaguest and most general terms;127 the most its clauses can provide are
"more or less suitable pegs on which judicial policy choices are
hung."128 Thus anyone who suggests the Constitution can provide
significant guidance for today's difficult questions either deludes him-
self or seeks to delude the Court. Essentially all the Court can do is
honor the value preferences it sees fit, and it should be graded accord-
ing to the judgment and skill with which it does so.129
One version of this view appears to be held by President Nixon.
It is true that in announcing the appointment of Justices Powell and
Rehnquist, he described a "judicial conservative"-his kind of Justice
-as one who does not "twist or bend the Constitution in order to per-
petuate his personal political and social views."13" But the example he
then gave bore witness that he was not so "naive" after all.
As a judicial conservative, I believe some court decisions have
gone too far in the past in weakening the peace forces as against
the criminal forces in our society [T]he peace forces must
127. See, e.g., A. B.ckel, supra note 89. at 84-92; A Bob, ^he Supreme Court and
the Idea of Progress 177 (1970); Mendelson. On the Meaning of the First Amendment.
Absolutes in the Balance, 50 Calif. L. Rev. 821 (1962).
128. Linde, supra note 97, at 254. . , • lowar(i
129. The Court will continue to play the role of the ™™""™™f£Zltin7*ht
omnipotence. And the law reviews will continue to play the game « e« " V hfsiory
Court's work in light of the fictions of the law, legal reasoning, and legal h.stor
rather than deal with the realities of politics and statesmanship.
Kurland, supra note 126, at 175. 1Q7n
130. 7 Weekly Comp. of Presidential Documents 1431 (Oct. lb, ivn).
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not be denied the legal tools they need to protect the innocent
from criminal elements.131
That this sort of invitation, to get in there and Lochner for the right
goals, can contribute to opinions like Roe is obvious. In terms of
process, it is just what the President ordered.
The academic version of this general view is considerably more
subtle. It agrees that the Court will find little help in the Constitu-
tion and therefore has no real choice other than to decide for itself
which value preferences to honor, but denies that it should necessarily
opt for the preferences favored by the Justices themselves or the Presi-
dent who appointed them. To the extent "progress" is to concern the
Justices at all, it should be defined not in terms of what they would
like it to be but rather in terms of their best estimate of what over
time the American people will make it132-that is, they should seek
"durable" decisions.133 This, however, is no easy task, and the goals
that receive practically all the critics' attention, and presumably are
supposed to receive practically all the Court's, are its own institutional
survival and effectiveness.134
Whatever the other merits or demerits of this sort of criticism, it
plainly is not what it is meant to be-an effective argument for judi-
cial self-restraint. For a Governor Warren or a Senator Black will
rightly see no reason to defer to law professors on the probable direc-
tion of progress; even less do they need the Academy's advice on what
is politically feasible; and they know that despite the Court's history
of frequent immersion in hot water,135 its "institutional position" has
been getting stronger for 200 years.
Roe is a case in point. Certainly, many will view it as social progress.
(Surely that is the Court's view, and indeed the legislatures had been
moving perceptibly, albeit too slowly for many of us, toward relaxing
131. Id. at 1432.
132. See generally A. Bickel, The Supreme Court and the Idea of Progress (1970).
Professor Bickels thought is of course much richer than it is here reported. But the
catchier aspects of a person's work have a tendency to develop a life of their own and
on occasion to function, particularly in the thinking of others and perhaps to an extent
even in the author's own, without the background against which they were originally pre-
sented. C/. note 138 infra.
133. See Hart, Foreword: The Time Chart of the Justices, 73 Harv, L. Rev, 84, 99
(1959). See also A. Bickel, supra note 127, at 99; Kurland, Earl Warren, (he "Warren
Court," and the Warren Myths, G7 Mich. L. Rev. 353, 357 (1968). Cf. Karst, Invidious^
Discrimination: Justice Douglas and the Return of the "Natural-Law— Due-Process"
Formula, 16 U.C.L.A.L. Rev. 716, 746-48 (1969); Karst & Horowitz, supra note J06. at 79.
134. E.g., A. Bickel, supra note 127, at 95; Kurland, Toward a Political Supreme Court,
32 U. Chi. L. Rev. 19, 20, 22 (1969).
135. See generally W. Murphy, Congress and the Court (1962); C. Warren, The
Supreme Court in United States History (rev. ed. 1932).
946
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Roe v. Wade
their anti-abortion legislation.)130 And it is difficult to see how it will
weaken the Court's position. Fears of official disobedience arc obvi-
ously groundless when it is a criminal statute that has been invali-
dated.187 To the public the Roe decision must look very much like
the New York Legislature's recent liberalization of its abortion law.188
Even in the unlikely event someone should catch the public's car long
enough to charge that the wrong institution did the repealing, they
have heard that "legalism" before without taking to the streets. Nor
are the political branches, and this of course is what really counts,
likely to take up the cry very strenuously: The sighs of relief as this
particular albatross was cut from the legislative and executive necks
seemed to me audible. Perhaps I heard wrong— I live in the North-
east, indeed not so very far from Hyannis Port. It is even possible that
a constitutional amendment will emerge, though that too has happened
before without serious impairment of the Position of the Institution.
But I doubt one will: Roe v. Wade seems like a durable decision.
It is, nevertheless, a very bad decision. Not because it will percepti-
bly weaken the Court— it won't; and not because it conflicts with
either my idea of progress139 or what the evidence suggests is soci-
ety's140—it doesn't. It is bad because it is bad constitutional law, or
rather because it is not constitutional law and gives almost no sense
of an obligation to try to be.141
136 In the past several years, however, a trend toward liberalization of abortion
statutes has resulted in adoption, by about one-third of the States, of less stringent
laws, most of them patterned after the ALI Model Penal Code ....
93 S Ct at 720
By the end of 1970, four other States had repealed criminal penalties for abortions
performed in early pregnancy by a licensed physician, subject to stated procedural
and health requirement! Alaska Stat. § 11.15.060 (1970); Hawaii Rev^ Stat §453-16
(Supp. 1971); N.Y. Penal Code § 125.05 (McKinney Supp. 1972-19/3); Wash. Rev.
Code §§ 9.02.060 to 9.02.080 (Supp. 1972)
137. As opposed to the invalidation of a police practice. Cf. Miranda v. Arizona, 384
U.S. 436 (1966). See also, e.g., Engel v. Vitale, 370 U.S. 421 (1962)
138. Even the headline in The New York Times announced: High Court Ri In
Abortions Legal [sic] the First 3 Months." N.Y. Times, January 23, 19/3 p. 1. co.s 1-8.
139 See pp 926-27 supra. Of course there are some possible uses of the decision tnat
scare me, particularly when it is considered in conjunction (a) with some of this Courtl
motions relating to a mother's "waiver" of AFDC assistance w ttvman v. J™«'«00
US 309 (1971) and (b) with Buck v. Bell, 274 U.S. 200 (192/), which was indeed relied
on by the Court in W 93 S. Ct. at 727. and cited without apparent disapproval in
Justice Douglass concurrence, id. at 759. But those are quite different cases I m conjuring
UP140 See note 136 subra But cf. Abortion, The New Republic, Feb. 10, 1973. at 9:
rilf the Court' guesf concerning the probable and desirable direction of progroi
fs]wrohng^t w.fH SSSm havl been'imposed on all 50 state, and ra. -1 Per-
manently, unless the Court itself should in the future change its mind N ma < g
lation, enacted by legislatures rather than judges, is happily not so rigid, and not
so presumptuous in its claims to universality and permanence. „..,.„ .
14L In judicial review, the line between the "juridical and the »«P*,a»v« "fjS
does not run between "strict constructionists" and competing theorists of const.tu
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I am aware the Court cannot simply "lay the Article of the Con-
stitution which is invoked beside the statute which is challenged and
decide whether the latter squares with the former."142 That is pre-
cisely the reason commentators are needed.
[Precisely because it is the Constitution alone which warrants
judicial interference in sovereign operations of the State, the basis
of judgment as to the Constitutionality of state action must be a
rational one, approaching the text which is the only commission
for our power not in a literalistic way, as if we had a tax statute,
before us, but as the basic charter of our society, setting out in
spare but meaningful terms the principles of government.143
No matter how imprecise in application to specific modern fact
situations, the constitutional guarantees do provide a direction,
a goal, an ideal citizen-government relationship. They rule out
many alternative directions, goals, and ideals.144
And they fail to support the ruling out of others.
Of course that only begins the inquiry. Identification and definition
of the values with which the Constitution is concerned will often fall
short of indicating with anything resembling clarity the deference to
be given those values when they conflict with others society finds
important. (Though even here the process is sometimes more helpful
than the commentators would allow.) Nor is it often likely to generate,
fullblown, the "neutral" principle that will avoid embarrassment in
future cases.145 But though the identification of a constitutional con-
nection is only the beginning of analysis, it is a necessary beginning.
The point that often gets lost in the commentary, and obviously got
tional interpretation. Rather, it divides constructionists and non-constructionists,
those who do and those who do not see judicial review as a task of construing the
living meaning of past political decisions— a division in which the alternating lib-
ertananism and conservatism of the late Justices Black and Harlan were on the
same side.
Linde, supra note 97, at 254-55 (footnote omitted).
142. United States v. Butler, 297 U.S. 1. 62 (1936).
143. Poe v. Ullman. 367 U.S. 497, 539-40 (1961) (Harlan, J., dissenting).
144. Wright, Professor Bickel, The Scholarly Tradition, and the Supreme Court, 84
Harv. L. Rev. 769. 785 (1971) (footnote omitted).
145. See generally Ely, supra note 28.
Starting from a clearly unconstitutional course of action— and I have trouble seeing
the unconstitutionality of a tax exemption for only Caucasian children as a contro-
venial assumption— and attempting to explain why it is unconstitutional in terms of
a theory capable of acceptable and consistent application to other areas, is a per-
fectly sensible way of developing constitutional doctrine.
Id. at 1202. I might have made (even more) explicit that the action around which the
search for the "principled" approach is to be centered should be one— and, to paraphrase
myself, I have trouble suing the example I chose as controversial in this regard— whose
impermissibility is established by values traceable to the Constitution.
948
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Roe v. Wade
lost in Roe, is that before the Court can get to the "balancing" stage,
before it can worry about the next case and the case after that (or even
about its institutional position) it is under an obligation to true its
premises to the charter from which it derives its authority. A neutral
and durable principle may be a thing of beauty and a joy forever. But
if it lacks connection with any value the Constitution marks as special,
it is not a constitutional principle and the Court has no business
imposing it.146 I hope that will seem obvious to the point of banality.
Yet those of us to whom it does seem obvious have seldom troubled
to say so.147 And because we have not, we must share in the blame
for this decision.
146. But see, e.g., Hart, supra note 133, at 99, quoted in part in Bickel, Foreword:
The Passive Virtues, 75 Harv. L. Rev. 40, 41 (1961):
[T]he Court is predestined ... to be a voice of reason, charged with the creative
function of discerning afresh and of articulating and developing impersonal and dur-
able principles ....
But discerning constitutional principles afresh is one thing; developing them, no matter
how neutral and durable, is quite another. An institution charged with looking after a
set of values the rest of us have entrusted to it is significantly different from one with
authority to amend the set.
147. But see, e.g., Linde, supra note 97. Cf. Bork, Neutral Principles and Some First
Amendment Problems, 47 Ind. L.J. 1, 6-11 (1971), espousing the general view of con-
stitutional adjudication espoused here, but characterizing Griswold as a typical Warren
Court product, id. at 7, in order to buttress the more general claim— equally unfair in
my view— that one cannot accept that general view and at the same time generally
approve the work of that Court. Id. at 6. See Griswold v. Connecticut, 381 U.S. 479,
527 n.23 (1965) (Black, J., dissenting).
290
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No 2 Economic Priorities in the 1970s, and Moving Toward External and Inter-
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No. 3 Prospects for the Dollar Standard, by Gottfried Haberler. August 1972.
No 4 Subsidies in Federal Credit Programs, by Murray L. Weidenbaum. Sep-
tember 1972.
No 5 Incomes Policy and Inflation: Some Further Reflections, by Gottfried
Haberler. October 1972.
No. 6 Contours of Academic Politics: 1972, by Everett Carll Ladd, Jr., and
Seymour Martin Lipset. October 1972.
No 7 Another View of Serrano, by Roger A. Freeman. December 1972.
No 8 The Dollar's Place in the International System, by William Fellner.
December 1972.
No 9 U.S. Balance of Payments Policy and the International Monetary System,
by Gottfried Haberler. January 1973
No 10 New Initiatives in National Wage and Price Policy, by Murray L Weiden-
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No 1 1 Some Observations on Japanese-American Economic Relations, by
Gottfried Haberler. February 1973.
No. 12 Vietnam's Electoral Roadblock, by Howard R. Penniman. April 1973.
No 13 The Challenge to Our System, by Alan Greenspan April 1973.
No. 14 The Antitrust Task Force Recommendation, by Yale Brozen. April 1973.
No. 15 The Wages of Crying Wolf: A Comment on Roe v. Wade, by John Hart
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291
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292
STATEMENT OF LAURENCE H. TRIBE, PROFESSOR OF LAW,
HARVARD UNIVERSITY
Mr. Tribe. Thank you. Mr. Chairman. It is an honor to be here to
address this important issue. Like my colleague John Ely, I have also
written an article on the subject. I come out at the opposite end of
this issue, defending the Court's decisions, although not all the
reasons the Court gave. I have submitted that article for the record,
in case you find it useful.
Senator Bath. We will also put that in the record, without ob-
jection.
[The document referred to follows:]
293
THE SUPREME COURT, 1972 TERM
Foreword: Toward a Model of Roles
in the Due Process of Life and Law
by
LAURENCE H. TRIBE
Reprinted From
Harvard Law Review
Vol. 87, No. 1, November 1973
Copyright © 1973 by
THE HARVARD LAW REVIEW ASSOCIATION
Cambridge, Mass., U.S.A.
294
VOLUME 87 NOVEMBER 1973 NUMBER 1
HARVARD LAW REVIEW
THE SUPREME COURT
1972 TERM
Foreword: Toward a Model of Roles in the
Due Process of Life and Law
Laurence H. Tribe *
UNLIKE Yeats' "rough beast, its hour come round at last," 1
substantive due process may yet enjoy an auspicious second
coming. For the Supreme Court's 1972 Term points the way
toward a conception of substantive due process that may avoid
the fate of that doctrine's earlier incarnation in American con-
stitutional law. This Foreword will venture a tentative exploration
of the "widening gyre" 2 implicit in several of the Court's recent
decisions.
I. Roe and Rodriguez: The Challenge
Last year in these pages, Gerald Gunther proposed a revital-
ized enforcement of the constitutional requirement that legisla-
tive means substantially further legislative ends.3 For the prag-
matic reason that "due process carries a repulsive connotation of
value-laden intervention for most of the Justices, of the Burger
Court as well as the Warren Court," 4 Professor Gunther sug-
gested that the inquiry could "best be carried forward under the
banner of equal protection rather than due process . . . ." 5 But
in San Antonio Independent School District v. Rodriguez, 6 its ma-
jor opportunity this Term to scrutinize a means-end relationship
♦Professor of Law, Harvard University. B.A., Harvard, 1962; J.D., 1966.
This Article was prepared in connection with research supported in part by the
Childhood and Government Project at the University of California, Berkeley. I
wish to express my gratitude also to the Editors of the Harvard Law Review and,
for their many helpful comments, to Sissela Bok, Paul Mishkin, and Carolyn Tribe.
1 Yeats, The Second Coming, in 2 The Oxford Anthology of English Lit-
erature 1700 (1973).
2 Id.
3 Gunther, The Supreme Court, ioyi Term — Foreword: In Search of Evolving
Doctrine on a Changing Court: A Model for a Newer Protection, 86 Harv.
L. Rev. i, 20 (1972) [hereinafter cited as Gunther].
* Id. at 42.
s/d.
a4ii U.S. 1 (1973).
295
2 HARVARD LAW REVIEW [Vol. 87:1
under the equal protection clause, the Court seemed disinclined
to give the rational connection rule much bite, sustaining school
finance schemes on a basis that three of the dissenters thought
reduced "equal protection analysis [to] no more than an empty
gesture." 7 And in Roe v. Wade 8 and Doe v. Bolton,0 when the
Court had its most dramatic opportunity to express its supposed
aversion to substantive due process, it carried that doctrine to
lengths few observers had expected, imposing limits on permis-
sible abortion legislation so severe that no abortion law in the
United States remained valid.10
I will venture no predictions in this Foreword about where
the Court will turn next, but I will suggest a framework in terms
of which the contrast between the abortion and the school finance
decisions may be comprehended, a framework which I believe
offers a fair chance of giving substantive due process a more re-
spectable place in American constitutional law than it has en-
joyed since 193 7. n
II. Exploring the Roe Opinion: Initial Observations
The Court in Roe expressly concedes the legitimacy of what it
deems to be the state's interests, the protection of the pregnant
1 Id. at 68 (White, J., dissenting, joined by Douglas and Brennan, JJ.) ; see
id. at 70-72, 127-30 (Marshall, J., dissenting); Goodpaster, The Constitution and
Fundamental Rights, 15 Ariz. L. Rev. 479, 519 (1973). See also Salyer Land Co.
v. Tulare Water Dist., 410 U.S. 719 (1973), noted p. 94 infra; Mahan v. Howell,
410 U.S. 315 (1973), noted p. 85 infra.
8 410 U.S. 113 (1973), noted p. 75 infra.
9 410 U.S. 179 (1973), noted p. 75 infra.
10 The resurgence of the due process clause as an independent source of doctrine
apart from the "incorporated specifics" of the Bill of Rights was also evident in
several of the Court's criminal procedure decisions this Term. See, e.g., Chambers
v. Mississippi, 410 U.S. 284 (1973) (procedural due process violated by the com-
bined operation, against the accused, of the state's rules barring hearsay and those
barring impeachment of one's own witness) ; Wardius v. Oregon, 93 S. Ct. 2208
(1973) (procedural due process requires state to inform accused of its intended
rebuttal witnesses if it insists on receiving pretrial notice of intent to offer alibi
defense) ; cf. Washington v. Texas, 388 U.S. 14 (1967) (incorporating specifically
the compulsory process clause of the sixth amendment).
"In West Coast Hotel Co. v. Parrish, 300 U.S. 379 d937), the Court sus-
tained minimum wage legislation in overruling Adkins v. Children's Hosp., 261
U.S. 525 (1923), and initiated the overturning of an entire series of cases like
Lochner v. New York, 198 U.S. 45 O905), which had struck down as violative
of due process a state law limiting to 10 hours a day and 60 hours a week the
length of time bakers could work. See also Nebbia v. New York, 291 U.S. 502
(1934) ; note 35 infra. In some respects, this Foreword might be regarded as a
response to the mounting fear that "the remainder of this century could be witness
to Lockner's ghost in the service. of another cause." Strong, The Economic Phi-
losophy of Lochner: Emergence, Embrasure and Emasculation, 15 Ariz. L. Rf.v
419. 4SS (1973)-
296
i973] THE SUPREME COURT — FOREWORD
12
woman's health and the preservation of the fetus' potential life.
And it does not question the existence of a rational connection
between these two interests and the state's anti-abortion law.
Nevertheless, after a copious review of the history of abortion
since the Persian Empire,13 the Court (i) cites several cases to
illustrate that "a right of personal privacy, or a guarantee of
certain areas or zones of privacy, does exist under the Constitu-
tion";14 (2) asserts, without once explaining what it means by
"privacy," that this right "is broad enough to encompass a
woman's decision whether or not to terminate her pregnancy";15
(3) holds, relying largely on equal protection precedents, that
regulations limiting a woman's fundamental right to privacy in
this area may be justified only by a "compelling state interest";16
(4) concludes that the "compelling" point with respect to the
state's interest in the mother's health, "in the light of present
medical knowledge, is at approximately the end of the first tri-
mester";17 and (5) asserts that the "compelling" point with re-
spect to the state's interest in the potential life of the fetus "is at
viability." 18
To justify its ruling as to the invalidity of health regulation in
the first trimester, the Court says that since the risk of a woman's
12 410 U.S. at 148-50.
13 Id. at 129-47. The Court's recitation of the history seems to be designed
largely to support its view that "at the time of the adoption of our Constitution
.... a woman enjoyed a substantially broader right to terminate a pregnancy
than she does in most States today." Id. at 140. But the bearing of that proposi-
tion on the constitutional issue is unclear. For when a society attempts to con-
stitute its future in terms of a charter whose relevance will be timeless, its work
must be understood more as a projection of aspirations than as a sanctification of
the present. Thus, even a universal assumption in 1789 or 1900 that abortion
could have been forbidden by law without constitutional objection would hardly
demonstrate that the Court exceeds its mandate when it holds, in the America
of 1973, that the abortion decision belongs to women rather than to the states.
14 Id. at 152.
lsId. at 153.
16 Id. at ISS-
"Id. at 163.
18 Id. The Court says this occurs between 24 and 28 weeks, but it defines
viability as ability to survive outside the mother's womb with artificial support.
Id. at 160, 163. Although the Court later notes its awareness of such advances In
biomedical technology as fetal transplants and artificial wombs, id. at 161, it does
not explore the implications such devices would have for its holding as to the
first trimester if they should become widely available in very early pregnancy.
Some commentators have simply suggested statutorily incorporating 24 weeks as
the point before which abortion is unconditionally allowed. See, e.g., Note, Abor-
tion after Roe and Doe: A Proposed Statute, 26 Vand. L. Rev. 823, 824, 827-29
(1973).
For a description of the holding in Doe, see pp. 76-77, 80 infra.
297
4 HARVARD LAW REVIEW [Vol. 87:1
death in first-trimester abortions appears to be at least as low as
that in normal childbirth,19 the physician and patient must be free
to terminate any pregnancy during this trimester "without regu-
lation by the State." 20 But the Court never explains why com-
parative mortality figures should provide the only constitutionally
relevant measure of permissible state regulation of a particular
procedure in the interest of health, or why states should not be
allowed to forbid altogether, even in early pregnancy, any cate-
gory of abortions demonstrably more dangerous than childbirth
to a woman's life or health.21
The Court says even less to justify its crucial conclusion that
the state's interest in potential life does not become "compelling"
until viability. One reads the Court's explanation several times
before becoming convinced that nothing has inadvertently been
omitted: 22
With respect to the State's important and legitimate interest
in potential life, the "compelling" point is at viability. This is
so because the fetus then presumably has the capability of
meaningful life outside the womb. State regulation protective
of fetal life after viability thus has both logical and biological
justifications.
Clearly, this mistakes "a definition for a syllogism," 23 and offers
no reason at all for what the Court has held.24 In any event, even
19 410 U.S. at 149 & n.144, 163.
20 Id. at 163. Presumably, states could continue to regulate first-trimester
abortion procedures to whatever extent such regulation is implicit in medical
licensure generally. See id. at 165 (state may proscribe abortions not performed by
licensed physicians).
21 Cf. p. 30 & note 167 infra.
"410 U.S. at 163.
23 Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale
LJ. 920, 924 (1973) [hereinafter cited as Ely].
24 But see p. 28 infra. There is, moreover, something deeply unsettling
about the Court's conclusion that, even after fetal viability, the state may not
forbid any abortion that is "necessary to preserve the life or health of the mother."
410 U.S. at 164. Since the procedures for removal of a viable fetus typically
present the same risks to the woman whether the fetus is saved or destroyed
Conversations with Dr. Alan Stone, Professor of Law and Psychiatry, Harvard
Law School" and Harvard Medical School, and Dr. John Grover, Assistant Clinical
Professor of Obstetrics and Gynecology, Harvard Medical School, in Cambridge
Mass Sept 21, 25, 1973, it seems questionable that the Court actually intended
to mandate a choice in favor of the latter. The only situations in wh.ch a jii
fication for such a choice could be plausibly advanced would be those involving
a troublesome deference to the woman's desire to preserve her mental health b>
assuring that the unwanted fetus be killed.
The Texas statute invalidated in Roe includes acts causing "premature birth
as abortions, but the statutory juxtaposition of such acts with those destroying
"the fetus or embryo ...in the woman's womb," Tex. Penal Code Ann art.
ii9I (i96i), quoted in 4ro U.S. at 117 n.i (emphasis added), suggests that pre-
maturity here means to include only such accelerated delivery as deliberately de-
298
i973] THE SUPREME COURT — FOREWORD 5
if there is a need to divide pregnancy into several segments with
lines that clearly identify the limits of governmental power, "in-
terest-balancing" of the form the Court pursues fails to justify
any of the lines actually drawn.
III. Rationality and Substantive Due Process
The Court's opinions invite a predictable critique: while
questioning neither the legitimacy of the legislature's goals nor
the rationality of their relation to the challenged provisions, the
opinions appear "simply [to] announce that [the goals are] not
important enough to sustain the restriction." 25 If the Court had
at least applied the traditional rationality standard instead of
striking its own balance of values, Justice Rehnquist suggests in
dissent, the disaster would have been less complete.26
I doubt, however, that a form of judicial review which scruti-
nized only the rationality of the connection between legislative
means and legislative ends 27 would provide a satisfactory solu-
tion to the central problem troubling Roe's critics, that of entrust-
ing courts with major judgments as to ends. Obviously, a law
forbidding a designated activity, such as the use of a contracep-
tive or the performance of an abortion, has as one of its purposes
creases the probability of the child's ultimate survival outside the womb. Here-
after, I use the term "abortion" to mean the deliberate destruction of an embryo
or fetus inside the uterus, during its removal, or after its separation from the
woman's body. See also p. 29 infra.
25 Ely 942. See also Lee, Mr. Herbert Spencer and the Bachelor Stockbroker:
Kramer v. Union Free School District No. is, 15 Ariz. L. Rev. 457, 470-71,
473-74 (i973)- One recent defense of Roe v. Wade, see Heymann & Barzelay, The
Forest and the Trees: Roe v. Wade And Its Critics, 53 B.U. L. Rev. 765 (1973)
[hereinafter cited as Heymann], is subject to much the same criticism, for its
persuasive argument for the proposition that a law interfering with a family's
childbearing autonomy can be justified only by "a very good reason," id. at 765,
stops short of supporting its conclusion that the Court was "surely . . . right," id.
at 776, to reject the legislative claim that protecting unborn human beings even
in very early pregnancy constitutes a sufficiently "good reason" to withstand the
close scrutiny demanded. Any defense of Roe which leaves this issue unresolved
seems to me to beg the most serious problem Roe presents.
28 See 410 U.S. at 173.' Indeed, Justice Rehnquist agrees in his dissent that
the "liberty" protected by fourteenth amendment due process "embraces more
than the rights found in the Bill of Rights." Id. at 172-73. And, if "the Texas
statute were to prohibit an abortion even where the mother's life is in jeopardy,"
he would "have little doubt that [the law] . . . would lack a rational relation to
a valid state objective . . . ." Id. at 173. Since Justice White leaves open the possi-
bility that he would find abortions constitutionally protected whenever required to
avoid "substantial hazards to either life or health," Doe v. Bolton, 410 U.S. 179, 223
(»973)l cf. Eisenstadt v. Baird, 405 U.S. 438, 464 (1972) (White, J., concurring),
the Court is evidently unanimous in accepting a fairly sweeping concept of sub-
stantive due process, although various Justices continue to resist that characteriza-
tion. See note 39 infra.
27 See Gunther 20-24, 37~48.
299
6 HARVARD LAW REVIEW [Vol. 87:1
the prohibition of the activity in question. That this end may in
turn have been sought by various legislators for a variety of more
remote reasons,28 some more persuasively linked to the law than
others, cannot obscure that basic purpose. If this universally
available guarantee of a perfect means-end "fit" terminates judi-
cial review, no law could ever be deemed invalid; if it does not,
the law's constitutional validity must turn on an assessment of the
end itself, judging its acceptability either as a general matter or
in the context of the particular kind of legislation involved."" The
aim of a "relatively vigorous" judicial scrutiny that would "con-
cern itself solely with means, not with ends," 30 so as to give real
force to the rationality test while avoiding "ultimate value judg-
ments about the legitimacy and importance of legislative pur-
poses," 31 thus evaporates in a verbal mist while inviting manipula-
tion that conceals the substantive judgments underlying judicial
choice.
In the era of Lochner v. New York,32 the crucial substantive
judgment — one denying the legitimacy of legislation designed to
redress economic inequalities or to protect certain groups of per-
sons from their own weakness or improvidence — was occasion-
ally clouded by the rationality formula,33 but in the end it emerged
28 A mismatch between means and ends, when the only ends examined are those
argued in a law's defense by an executive officer, may indicate no more than that
the officer did not advance the right ends in the law's defense. That his oversight
or deliberate choice should be allowed thereby to frustrate the past efforts of his
jurisdiction's legislature seems strange. Nor can I imagine any satisfactory way
of forcing the executive to defend a law in terms of the legislature's own, often
conflicting, goals, whether hidden or publicly expressed. Nor, finally, is it clear
why even a law whose stated ends turn out to be frustrated rather than advanced
by its enactment — to put the hardest case — should for that reason alone be
invalidated as an arbitrary restraint on liberty, or an arbitrary discrimination,
unless one can say that no other end which the law clearly serves is, in context,
constitutionally legitimate. Perhaps invalidation despite the existence of such other
ends would to some degree foster legislative accountability and care, cf. Gunther
44, 47, but that seems a thin reed on which to rest so heavy-handed a doctrine.
Curiously, Professor Bickel appears to regard it as too obvious to require argument
that a law should be struck down as irrational when it is clearly out of line with
the "purpose [stated] in [its] statutory preamble." A. Bickel, The Least
Dangerous Branch 224 (1962).
29 See Ely, Legislative and Administrative Motivation in Constitutional Law,
79 Yale L.J.' 1205, 1224-28 (1970); Note, Legislative Purpose, Rationality and
Equal Protection, 82 Yale L.J. 123 (1972); cf. A. Bickel, supra note 28, at 2:
See also note 41 infra.
30 Gunther 21.
31 Id. at 21-22.
32 198 U.S. 45 (1905) ; see note 11 supra.
33 See, e.g., Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 517 0924); Cop-
page v. Kansas, 236 U.S. 1, 15-16 O915) ! Lochner v. New York, 198 U.S. 45, 57
59, 62, 64 (1905) ; Strong, supra note 11, at 432-49-
57-782 O - 76 - 20
300
I973] THE SUPREME COURT — FOREWORD 7
clearly as the villain of the piece.84 One of the most curious things
about Roe is that, behind its own verbal smokescreen, the sub-
stantive judgment on which it rests is nowhere to be found.
Certainly that judgment is not to be equated with Lochner's
characterization of paternalism and equalization as illegitimate
goals of law.35 Indeed, the Court in this Term's obscenity cases 36
expressly rejected the view that the Constitution always places
"conduct involving [only] consenting adults . . . beyond state
regulation,"37 and suggested with scorn that the opponents of
anti-obscenity laws, who in effect demand a " 'laissez faire' market
solution to the obscenity-pornography problem," are the very
" 'people who have never otherwise had a kind word to say for
laissez faire,' . . . ." 38
Xor has the Court had a kind word to say for substantive due
process as embodied in Lochner since its much celebrated demise
34 See pp. 12-13 & note 70 infra.
The notion at Lochner's core — that legislative actions are void unless they
conform to a superior source of right and justice embodied in a system of natural
law standing outside of, and above, the positive law of the state — can be traced
at least to the Pythagoreans and the Sophists. See C. Haines, The Revival of
Natural Law Concepts 4-12 (1930).
35 Compare 410 U.S. at 164 (sustaining regulation to protect the woman's
health), with Adkins v. Children's Hosp., 261 U.S. 525, 552-53. 556 (1923) (deny-
ing economic protection of women as legitimate governmental objective, see note
11 supra). Under a combination of doctrines revolving about, but not limited to,
substantive due process, see A. Paul, Conservative Crisis and the Rule of Law:
Attitudes of Bar and Bench, 1887-1895, at 227-37 (1960), the Court in the
Lochner era emasculated legislative efforts to control the rates charged by massive
enterprises, Chicago, M. & St. P. Ry. v. Minnesota, 134 U.S. 418 (1890), to limit
huge economic aggregations, United States v. E.C. Knight Co., 156 U.S. 1 (1895),
and to redistribute income through federal taxation, Pollock v. Farmers' Loan &
Trust Co., 157 U.S. 429 (1895), in addition to striking down regulations protective
of laborers. See, e.g., Jay Burns Baking Co. v. Bryan, 264 U.S. 504 (1924) ; Adkins,
supra; Lochner v. New York, 198 U.S. 45 (1905)-
36 United States v. Orito, 93 S. Ct. 2674 (1973) ! Paris Adult Theatre I v. Slaton,
93 S. Ct. 2628 (1973), noted p. 160 infra; cf. Kaplan v. California, 93 S. Ct. 2680
(1973) i United States v. 12 200-Ft. Reek of Super 8mm. Film, 93 S. Ct. 2665
(1973) ; Miller v. California, 93 S. Ct. 2607 (1973), noted p. 160 infra.
37 Paris Adult Theatre I v. Slaton, 93 S. Ct. 2628, 2641 (i973>- At that point,
the Court trailed with a telling footnote: "14. Cf. Mill, On Liberty (1955 ed.),
13." The message could hardly have been clearer: liberal individualism is not the
Court's current credo. Nor need one accept that credo in order to reject the Court's
conclusions in the obscenity cases. In particular, I regard as dispositive the danger,
stressed in Justice Brennan's dissent, that anti-obscenity laws will deter conduct
undeniably protected by the first amendment even if the dissemination of porno-
graphy to forewarned adults is not itself thought to implicate important constitu-
tional values. See 93 S. Ct. at 2649-51 (Brennan, J., dissenting). See also pp.
149-53 infra, discussing Broadrick v. Oklahoma, 93 S. Ct. 2908 (1973)-
38 Paris Adult Theatre I v. Slaton, 93 S. Ct. 2628, 2639 (1973). quoting I.
Kristol, On the Democratic Idea in America 37 (1972).
301
8 HARVARD LAW REVIEW [Vol. 87:1
in 1937.39 Indeed, apart from concluding from time to time that
due process requires civilized methods of law enforcement 40 and
commands procedural fairness in governmental activities,41 the
post-1937 Court has sought to limit the fourteenth amendment
due process clause to a device for protecting against state in-
fringement the political and religious liberties secured from
federal abridgment by the first amendments-
More generally, some observers of the Court 43 — and some of
39 See note 11 supra. See also Ferguson v. Skrupa, 372 U.S. 726, 730 (1963).
Although the Court has continued to cite with approval the two Lochner-trz.
decisions which struck down state laws interfering with educational freedom on
the part of parents, Meyer v. Nebraska, 262 U.S. 390 (1923) (invalidating statute
forbidding foreign language teaching below the ninth grade), and Pierce v. Society
of Sisters, 268 U.S. 510 (1925) (invalidating state requirement that all parents send
their children to public schools), it has tended to treat them as essentially first
amendment cases. Sec, e.g., Epperson v. Arkansas, 393 U.S. 97, 105-06 (1968);
Griswold v. Connecticut, 381 U.S. 479, 482 (1965); cj. Poe v. Ullman, 367 U.S.
497, 543-44 (1961) (Harlan, J., dissenting). Even in Griswold, which invalidated
a state ban on the use of contraceptives, the Court insisted that it was "declin[ing]
the invitation" to be guided by Lochner, 381 U.S. at 482, and seemed to say that its
judgment did not rest on fourteenth amendment due process, although no other
constitutional provision was directly applicable. See also 410 U.S. at 117.
40 See, e.g., Rochin v. California, 342 U.S. 165 (1952) ; Wolf v. Colorado, 338
U.S. 25 (1949)-
41 See, e.g., Vlandis v. Kline, 93 S. Ct. 2230 (1973) ! Fuentes v. Shevin, 407 U.S.
67 (1972) ; Goldberg v. Kelly, 397 U.S. 254 (1970) ; Sniadach v. Family Fin. Corp.,
395 U.S. 337 (1969) ; Willner v. Committee on Character & Fitness, 373 U.S. 96
(1963); Schware v. Board of Bar Examiners, 353 U.S. 232 (1957)- Typically, in
all but two of these cases, the effect of due process as the Court construed it has
simply been to accord individuals adversely affected by threatened governmental
action a right to participate in certain types of proceedings to determine whether
the rule underlying the contemplated action is being properly applied to them.
In Schware and Vlandis, however, the effect of due process as construed by the
Court was to limit the substantive grounds on which certain denials of benefits,
whether the right to practice a profession (Schware) or the enjoyment of reduced
tuition rates at a state college (Vlandis), can lawfully be based. In the absence of
some constitutional underpinning for whatever substantive limitation is involved,
each such case becomes difficult to understand other than as an unsupported sub-
stantive conclusion cloaked in procedural guise. See also United States Dep't of
Agriculture v. Murry, 93 S. Ct. 2832 (1973); United States Dep't of Agriculture
v. Moreno, 93 S. Ct. 2821 (1973); Stanley v. Illinois, 405 U.S. 645 (1972); Bell
v. Burson, 402 U.S. 535 (1971). In these terms, Bell, Stanley, and Murry might
each be thought to rest on a "delegation" base, cj. notes 142, 177 inlra I Schware
and Moreno, on a "freedom of association" base, 353 U.S. at 246; 93 S
2826 & n.7; and Vlandis, on a "right to travel" base, 93 S. Ct. at 2235 n.6. See
also pp. 67, 125 & notes 223, 224 infra.
42 See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969) i Sweezy v. New Hamp-
shire, 354 U.S. 234 (1957); Cantwell v. Connecticut, 310 U.S. 296 (1940).
43 See, e.g., Emerson, Nine Justices in Search of a Doctrine, 64 Mich. L. Rev.
219, 223-24 (1965); Kauper, Penumbras, Peripheries, Emanations, Things Funda-
mental and Things Forgotten: The Griswold Case, 64 Mich. L. Rev. 235, »5»
(1965) ; cf. Comment, Fundamental Personal Rights: Another Approach to Equal
302
i973] THE SUPREME COURT — FOREWORD g
its own members " — have attempted to justify judicial efforts to
root basic human rights in "a soil in which the laissez jaire
concept ... has withered" 45 by drawing a distinction between
property or contract rights, as to which the Court is said to have
sensibly withdrawn protection, and personal rights, as to which
the Court is said to have remained wisely vigilant. But the recog-
nition is growing that the distinction between "personal" and
"property" rights, much like that between "rights" and "priv-
ileges," 46 is analytically weak;47 that it overlooks the importance
of property and contract in protecting the dispossessed no less
than the established;48 that it forgets the political impotence of
the isolated jobseeker who has been fenced out of an occupa-
tion;49 and that it could in any event justify no more than a rela-
tively modest difference in degree between the judicial roles in the
two areas.50 Thus, if the form of substantive due process em-
bodied in the outcome of Roe v. Wade and of Doe v. Bolton is to
escape Lochnefs fate, it cannot be because the new due process
concerns itself only with "personal," as opposed to "property,"
rights.51
Implicit in this conclusion, for someone who ultimately ap-
proves the direction in which Roe may take the Court but shares
Protection, 40 U. Chi. L. Rev. 807, 822-30 (1973). See also Heymann 774 &
n.55. 779-
44 See, e.g., Griswold v. Connecticut, 381 U.S. 479, 502-03 (1965) (White, J.,
concurring) ; Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., concur-
ring).
45 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 640 (1943)-
48 See, e.g., Graham v. Richardson, 403 U.S. 365, 374 (1971) ; Bell v. Burson,
402 U.S. S3S, 539 (i97i)-
47 See Lynch v. Household Fin. Corp., 405 U.S. 538, 552 (1972).
48 See, e.g., Reich, The New Property, 73 Yale L.J. 733, 771-74 (1964).
49 See McCloskey, Economic Due Process and The Supreme Court: An Ex-
humation and Reburial, 1962 Sup. Ct. Rev. 34, 45-50.
50 Id. at 51. See also Gunther 37-40.
51 Nor can the new due process be plausibly defended as being limited to
liberties whose substance is closely linked to activities protected by the Bill of
Rights. The difficulty of directly fitting specific activities like the use of contra-
ceptives within such a "linkage" is obvious. See Heymann 778. But, as this Fore-
word will attempt to show, it would be a mistake to suppose that the only alterna-
tes available to the judiciary are (1) limiting the substantive content of due
process to activities that are protected with reasonable specificity elsewhere in the
Constitution or are obviously presupposed by the structure of our form of govern-
ment, see Goodpaster, supra note 7, at 482, 508 (fundamental rights limited to
"value-neutral" ones of "political participation" and "fairness"), limitations some
have thought inconsistent with the ninth amendment, see Griswold v. Connecticut,
381 U.S. 479, 488-93 (1965) (Goldberg, J., concurring); and (2) allowing sub-
stantive due process to range over the entire set of values which the Court thinks
are "related by principle and tradition to central, widely accepted, organizing
concepts of our society . . . ." Heymann 779. See pp. 50-52 infra.
303
IO HARVARD LAW REVIEW [Vol. 87:1
the general disapproval of the direction represented by Lochncr,
must be a conception in terms of which a defense of Roe and a
critique of Lochner may simultaneously proceed without embrac-
ing a theory that "property" and "contract" themselves are some-
how unfit for active judicial protection.
IV. Interest-Balancing and Role-Allocation
An appropriate conception emerges, I think, when one sets
aside the misleading language of Roe and focuses instead on the
substance of Roe's holding. The Court purports to be balancing
"the relative weights of the respective interests involved" 52 in
abortion. On one side of the balance it places the "detriment that
the state would impose" by denying the pregnant woman the
abortion she seeks: a diagnosable risk of medical harm to the
woman "even in early pregnancy"; the strains resulting from ma-
ternity, additional offspring or an unwanted child; and, in some
cases, "the additional difficulties and continuing stigma of unwed
motherhood." 53 On the other side the Court places the state's
possible interests in denying a desired abortion: "the preserva-
tion and protection of maternal health" r'4 and the preservation of
"the potentiality of human life." 55 Having thus arrayed the
beneficial and harmful consequences, and with its eye on a gauge
somehow calibrated for constitutional values, the Court asserts
that the balance between the benefits and harms continues to
change throughout pregnancy, so that the proper constitutional
result differs from trimester to trimester.
It is as though the Supreme Court were itself choosing, with
the legislature's help on matters of factual detail, either for itself
or for some hypothetical person,50 between abortion and con-
tinued pregnancy.57 But the question the Court appeared to ad-
dress was not precisely the question posed by the case before it.
52 410 U.S. at 165.
53 Id. at 153-
54 Id. at 163. Securing this benefit might require denying an abortion altogether,
see p, 30 & notes 133, 167 infra, but all the Court contemplates as necessary is
"regulating the conditions under which abortions are performed." 410 U.S. at 150
See also id. at 163.
"410 U.S. at 164.
59 Such a choice would closely parallel that usually posited for the disinterested
observer in utilitarian theory. See J. Rawxs, A Theory of Justice 27 097
"See also Louisell & Noonan, Constitutional Balance, in The Morality of
ABdRTiON: Legal and Historical Perspectives 220, 230 (J. Noonan ed. 197'
[hereinafter cited as Louisell & Noonan]. Not surprisingly, a Constitution made
for people of fundamentally differing views," Lochner v. New York, 198
76 (1905) (Holmes, J., dissenting), could rarely be expected to take sides on so
narrowly focused an issue.
304
i973] THE SUPREME COURT — FOREWORD n
The Court was not, after all, choosing simply between the alter-
natives of abortion and continued pregnancy. It was instead choos-
ing among alternative allocations of decisionmaking authority, for
the issue it faced was whether the woman and her doctor, rather
than an agency of government, should have the authority to make
the abortion decision at various stages of pregnancy. The appel-
lant's argument in Roe was not that the Court should decide "for
abortion," but rather that the Court should transfer the role of
decisionmaker from the government to the woman herself.58 De-
spite what the Court's opinion seemed to say, the result it reached
was not the simple "substitution of one non-rational judgment for
another concerning the relative importance of a mother's oppor-
tunity to live the life she has planned and a fetus's opportunity to
live at all," 59 but was instead a decision about who should make
judgments of that sort.m
Lochner, too, could of course be cast in role-allocation terms;
it could be expressed as a judgment that the roles of making con-
tracts and deciding what to do with one's property must be private
ones where no compelling public interests in health or safety are
involved.61 To be sure, it might be difficult to give a coherent ac-
count of just why setting the number of hours a miner or smelter,62
a woman,63 or a factory employee 64 could work was part of the
legislature's proper role, whereas deciding how long a baker may
work 65 or how low a wage a woman might accept 66 was part of
58 The only question properly presented in Roe, of course, was whether govern-
ment should have the role of deciding whether to veto the woman's pro-abortion
choice, not whether it should have the separate role of deciding whether to force an
abortion upon a woman unwilling to have one. Insofar as giving government the
first of these roles might eventually generate pressure to give it the second as well,
the question posed by Roe is not so easily bifurcated. Cf. p. 52 & note 229 infra.
But even assuming full separability of the two issues, we shall see (1) that the
reasons for and against letting government decide whether to veto women's pro-
abortion choices are not identical to the reasons for and against vetoing an abor-
tion as such; and (2) that, although the Roe opinion focused on the latter, the
former set of reasons can be more readily linked to a coherent view of the Con-
stitution.
59 Ely 943-
60 Cf. Fried, Two Concepts of Interests: Some Reflections on the Supreme
Court's Balancing Test, 76 Harv. L. Rev. 755 (1963) ; Goodpaster, supra note 7,
at 509-10; Heymann 777.
61 See Lochner v. New York, 198 U.S. 45, 56-58 (1905).
62 Holden v. Hardy, 169 U.S. 366 (1898) (sustaining hour limit as to miners).
93 Muller v. Oregon, 208 U.S. 412 (1908) (sustaining hour limit as to women).
94 Bunting v. Oregon, 243 U.S. 426 (1917) (sustaining hour limit as to flour-
mill workers).
95 Lochner v. New York, 198 U.S. 45 (1905) (invalidating hour limit as to
bakers).
69 Adkins v. Children's Hosp., 261 U.S. 525 (1923) (invalidating minimum
wage for women).
305
I2 HARVARD LAW REVIEW [Vol. 87:1
the constitutionally secured role of the contracting parties. But
if the decisions of the Lochner era are nonetheless recast in terms
of roles, the problem with the Court's approach will be starkly il-
luminated even if the Court is treated as having conceded that
the legislature's role validly includes prospective regulation of
contractual freedom subject "only" to judicial review aimed at
preventing the arbitrary exercise of this role. For the trouble
with Lochner is not that the Constitution fails to mention "con-
tract" or "property" and hence to authorize their defense against
arbitrary regulation; it mentions both, and in ways plainly sug-
gestive of their amenability to judicial protection.67
The trouble — and it is a trouble that becomes particularly
transparent from the perspective of role-allocation — is that the
Court's protections implicitly allocated roles with respect to
property and contract in accord with no constitutionally de-
fensible scheme. First, the Court's protections allocated to the
judiciary the role of revising legislative findings about existing
social and economic conditions and about the dynamics of change
that governed them, as the Court frequently announced its simple
rejection of the legislature's empirical judgment that a given
regulation would in fact promote an asserted goal.68 And second,
the Court's protections for property and contract allocated roles
between the private and public spheres as though the Constitu-
tion embodied a single immutable doctrine that determined in ad-
vance and for all time which particular substantive ends — such
as better public health — the state could legitimately pursue, and
which substantive ends — such as equalizing bargaining power —
must remain beyond the state's reach.69 But allocating roles ac-
67 See, e.g., U.S. Const, amends. V, XIV. See also U.S. Const, art. I, § 10 (for-
bidding state legislative impairment of contracts). Had Chief Justice Marshall
persuaded one more of his brethren to join him in Ogden v. Saunders, 25 U.S. (12
Wheat.) 213, 332 (1827), the contract clause would have applied without regard
to whether a challenged law was enacted before or after a contract had been made,
and something like the Lochner era would have begun in 1827. See B. Wright, The
Contract Clause of the Constitution 246 (1938).
68 See cases cited note 33 supra.
69 In reaching such results, the Court moved from the moral axiom that taking
one person's property to help another is wrong, see note 76 infra, to the dubious
corollary that inequalities of fortune and bargaining power must be accepted as
the "inevitable" consequences of respecting basic human rights. See Coppage
Kansas, 236 U.S. 1, 16-18 (1915). This movement in the latter half of the nine-
teenth century derived much of whatever intellectual legitimacy it then enjoye
from the rise of social Darwinism and the ascendancy of "invisible hand" theories
of economic and social welfare, see A. Paul, supra note 3S, at 235-36, and it!
rial acceptance was stimulated by the efforts of commercial and mere;
groups to consolidate the gains they had amassed during the preceding half-century
with the help of a far more instrumental and interventionist conception of law.
See generally Horwitz, The Emergence of an Instrumental Conception of American
306
I973] THE SUPREME COURT — FOREWORD 13
cording to any doctrine of "immutable and necessary antecedent
rules," at least when applied in a society that has grown past its
revolutionary beginnings, ultimately "sanctifies the old" and
"widens the gap between current social conditions and the prin-
ciples used by the courts." 70
I hope to show that couching Roe v. Wade and Doe v. Bolton
in role-allocating terms will likewise facilitate their constitutional
analysis — in this instance, their constitutional defense. As in
Lochner, there is no doubt that what the Roe and Doe decisions
concern — "liberty" — is a fit subject for judicial protection.71
But, again as in Lochner, the question one must ask is whether the
specific protections of liberty decreed in Roe and Doe allocate
roles in a constitutionally defensible way, viewing the Constitu-
tion as a framework independent of any immutable catalog of
allowable and forbidden ends.
Of course, "the allocation of competences" is precisely "the
sort of issue the Framers generally did address themselves to," 72
for the obvious reason that a nation's fundamental law could not
afford to leave unresolved the most basic issues of decisional
power. Although one encounters the notion of competences most
frequently when discussing the judicial resolution of conflicts be-
tween levels or branches of government, the notion is no less rele-
vant when discussing the resolution of conflicts between private
and public authority,73 and even when considering the resolution
of conflicts between alternative private decisionmakers.
Law, 1780-1820, in 5 Perspectives in American History 287 (D. Fleming & B.
Bailyn eds. 1971). See also note 230 infra.
70 Dewey, Logical Method and Law, 10 Cornell L.Q. 17, 26 (1924). So it
was that Lochner's half-century was one in which the Court "applied compla-
cently eighteenth-century conceptions of liberty of the individual and of the
sacredness of private property," Brandeis, The Living Law, 10 III. L. Rev. 461,
464 (1916), to a social order in which they constituted "major contributing
factors in the perpetuation of the inequalities that were accompanying the growth
of American industrialism." A. Paul, supra note 35, at 227. See also Goodpaster,
supra note 7, at 484. Of course natural-law notions as such need not be bound
to any immutable doctrine. See D. Boorsttn, The Mysterious Science of the
Law 48 (1941) (Beacon paper ed. 1958). On the contrary, in the long history of
such notions there is an important strand that seeks its moral truths in the changing
norms of the society itself. See C. Haines, supra note 34, at 249-72, 318, 332;
cf. Kadish, Methodology and Criteria in Due Process Adjudication: A Survey and
Criticism, 66 Yale L.J. 319 (1957).
71 See Ely 935.
72 A. Bickel, The Least Dangerous Branch 104 (1962).
73 See, e.g., Jaffe, Law Making by Private Groups, 51 Harv. L. Rev. 201 (1937).
See generally Fried, supra note 60. When the question is whether a certain kind of
decision should be made legislatively or judicially, the Supreme Court regularly
assumes that the final distribution of roles in accord with the constitutional scheme
must be its responsibility — even when the conclusion is that the role should in
307
I4 HARVARD LAW REVIEW [Vol. 87 :i
Obviously, the Constitution cannot be expected to settle all
role-allocation questions. And when it can reasonably be treated
as having settled them, the answers it provides will not be
mechanically derivable from the text or history of the document
itself. The message of the Constitution is generally delphic; its
application, here as elsewhere, will require the inescapably value-
laden striking of various balances among competing considera-
tions and the selection of one from among several interpretations
that might give the document a necessary coherence. But I be-
lieve that the identification of which considerations are relevant
and which are not, the determination of which are constitutionally
legitimate and which violate structural premises rooted in the
Constitution, and the shaping of the balancing process itself in
the light of contemporary aspirations and conditions, can all be
usefully informed by a consciously role-allocating perspective.74
Like one of my predecessors in the task of Foreword-writing,
"I am more interested in ways of thinking about certain legal
problems, and in ways of saying what the significant factors are,
the end be a legislative one. See, e.g., Gilligan v. Morgan, 93 S. Ct. 2440, 2444-45
(1973). And within any given part of the public realm, the Court commonly pro-
ceeds on a quite explicitly role-allocating conception of the nature of its task.
See, e.g., Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973) • But the Court has not
limited its role-allocating mission to distributions of authority among or within
public entities. On the contrary, it has also recognized its role-distributing obliga-
tion when the question before it has been whether a particular type of decision
must be made privately, by persons and groups free of public regulation with
respect to the relevant aspects of their activities, or by publicly controlled, and
hence at least partially accountable, entities. For example, in Columbia Broadcast-
ing Sys., Inc. v. Democratic Nat'l Coram., 93 S. Ct. 2080 (1973), noted p. 175 *»/«»,
the Court described the question for decision as that of "who shall determine what
issues are to be discussed [over network television] by whom," id. at 2100, and did
not doubt its responsibility for resolving the question whether the type of decision
there involved had to be made by an uncontrolled group of private individuals or
could instead be made by some publicly regulated process. See also notes 142, 145
infra.
74 There can be little doubt that what is widely perceived as the appropriate
degree of judicial restraint and deference in constitutional adjudication depends on
attitudes and expectations far more basic than the mere existence or absence of a
verbal relationship between a "claim for judicial protection and some relatively
specific provision of the Constitution." Heymann 783; see Deutsch, Neutrality,
Legitimacy, and the Supreme Court: Some Intersections Between Law and Political
Science, 20 Stan. L. Rev. 169, 252-59 (1968). But when a court's only guide to
decision is its sense of the "deeply held societal values" bearing on the controversy
before it, Heymann 783, and its belief that the legislature misconceived the content
of those values or gave them insufficient weight, see id. at 783 n.83, the dange
obviously very great that the Court's interventions will be subject to a
firmities that plagued Lochner. When the Court's judgment can be rooted r
firmly in the Constitution's explicit provisions, as I argue tends to be the case
the level of role-allocation more than elsewhere, see pp. 50-52 '"/rJ' tlm nsk
at least reduced and the Court's warrant for not simply avoiding it is a good deal
clearer.
308
i973] THE SUPREME COURT — FOREWORD 15
than I am in doctrinally formulated summaries or predictions of
outcomes."75 But if I am to indicate how role-allocation can
provide a model for substantive due process adjudication, then I
must sketch doctrinal formulations even when I am of several
minds as to their contents. What follows is a tentative effort to
develop such a model in the illustrative setting of the abortion
controversy.
V. The Distribution of Roles in Abortion
In the role-allocation model, the due process clause is violated
whenever the state either assumes a role the Constitution entrusts
to another, or fails to assume a role the Constitution imposes
upon it.76 To make this notion more concrete, it might help to
set out initially, in a more or less schematic way, how a role-
allocating due process analysis would proceed. Beginning by
identifying the role whose constitutional placement is in con-
troversy — in this case, the role of deciding whether and when an
abortion is to be performed — one asks whether anything in the
Constitution has a bearing on the allocation of this specific role as
between governmental choice, on the one hand, and private choice,
on the other.77 To take a clear example, the first amendment's
prohibition of government abridgment of free speech indicates
that the role of choosing whom to expose to various political views
should not, as a general matter, be reposed in government.78
75 Michelman, The Supreme Court, 1968 Term — Foreword: On Protecting the
Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7, 10 (1969).
76 Though such a formulation might appear somewhat novel, it parallels the role-
allocating separation-of-powers antecedents of substantive due process. The original
theory was that a legislative act transferring property from A to B, if it proceeded
on the basis that B was justly entitled to it, "would be void, because judicial in
its nature; and if it proceeded without reasons, it would be equally void, as neither
legislative nor judicial, but mere arbitrary fiat." Cooley, A Treatise on the Con-
stitutional Limitations Which Rest Upon the Legislative Power of the
States of the American Union 184 (Brown & Co. 2d ed. 1872). See also Fletcher
v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810) (Marshall, CJ.) ; Calder v. Bull, 3
U.S. (3 Dall.) 386, 387-89 (1798) (Chase, J); Corwin, The Basic Doctrine of
American Constitutional Law, 12 Mich. L. Rev. 247, 260, 263-70 (1914) ; Hender-
son, Railway Valuation and the Courts, 33 Harv. L. Rev. 902, 904 (1920).
Even today, the vice of a law characterized as violative of due process because
it is too vague to comprehend may be described as its excessive shifting of properly
legislative and judicial roles to the executive branch.
77 Even though the lines between the public and private spheres occasionally
blur and are at times illusory, see generally Black, The Supreme Court, 1966 Term
— Foreword: "State Action," Equal Protection, and California's Proposition 14, 81
Harv. L. Rev. 69, 91 (1967); Henkin, Shelley v. Kraemer: Notes for a Revised
Opinion, no U. Pa. L. Rev. 473, 481-87 (1972), we operate within the frame of
a constitutional scheme that treats the two differently.
78 The first amendment's establishment clause likewise serves to indicate that
certain roles, such as that of choosing which religious belief to accept, see Schwartz,
309
jfr HARVARD LAW REVIEW [Vol. 87:1
If the constitutional analysis, after taking into account, or
"balancing," the considerations in favor of making the role govern-
mental as well as those against, still points to the conclusion that,
in contemporary society, the role should be a private one, then a
second level is reached, and one must ask whether the Constitu-
tion imposes any constraints on what sort of individual or group,
within the private realm, may exercise the role in question. In
some instances, a negative answer to this second-level inquiry will
result from the absence of governmental involvement in the
allocation of private roles. But in other situations, governmental
inaction will leave the role in what appears to be a constitutionally
preferred position once all factors relevant to its location have
been considered, and one will be able to say that the Constitution
would be violated by a governmental choice to transfer the role
to someone else.
Finally, once the role has been located at a particular point
outside government, the analysis asks whether its meaningful
exercise, or any independent constitutional concern, might re-
quire government to play some complementary and facilitative
role of its own. As this Foreword will indicate, although that
question presents a complex interaction of institutional and other
variables, the Constitution may again provide significant guid-
ance.
Of course, the role-allocation theory necessitates balancing
competing considerations no less than does the particularized ap-
proach of the Court in Roe. The difference, as will become clear,
is that the considerations and interests to be balanced become
those bearing on how the relevant roles should be allocated, not
those bearing on the pros and cons of abortion apart from a con-
cern for roles.
A. The Threshold Issue: Must Government Justify?
The appellant in Roe, on " 'behalf of herself and all other
women' similarly situated," 79 argued in effect that setting and
applying the substantive criteria for deciding whether to obtain
an abortion should be her function and not that of the state. In
assessing that argument from a role-oriented perspective, just as
from any other, one would ask at the outset whether the Constitu-
tion requires a state to offer at least some justification for the
specific exercise of power involved. Unless such a requirement
exists, one need not even begin the process of evaluating the
legitimacy of the justifications offered for a governmental role. But
No Imposition of Religion: The Establishment Clause Value, 77 Yale L.J. 692, 720
(1968), ought ordinarily to be private rather than governmental.
79 410 U.S. at 120.
310
i973] THE SUPREME COURT — FOREWORD 17
since there can be no doubt that the "freedom to choose an abor-
tion is part of the 'liberty' the Fourteenth Amendment says shall
not be denied without due process of law," 80 even Roe's critics
concede that any nontrivial governmental abridgment of this free-
dom must be justified in terms of some "permissible governmental
goal." 81 What makes Roe unusual, as Professor Ely rightly ob-
serves, is that, for reasons the Court never adequately explains,
"the liberty involved is accorded a far more stringent protection,
so stringent that a desire to preserve the fetus's existence is un-
able to overcome it." 82 But the analysis proposed here does not,
at least in the first instance, demand of the state anything more
than is usually required of governmental intrusions upon human
liberty: plausible arguments in support of the intrusions im-
posed.83 It is to a consideration of such arguments that I now
turn.
80 Ely 935. See also note 26 supra.
81 Ely 935. Although, as Professor Ely says, there are those "who deny that any
such doctrine should exist," id. at n.91, they do not include among their number
even the two dissenters in Roe, Justices Rehnquist and White. See note 26 supra.
Given the unremarkable character of the proposition that wholly unjustified re-
straints on "liberty" offend due process, cf. p. 13 supra, one suspects that its
rejection is likely to reflect a fear that to accept even so minimal a requirement
would ultimately lead a court back to Lochner itself, a fear I hope this Foreword
will help to dispel.
82 Ely 935; cf. note 25 supra.
83 Although this Foreword does not rely upon such a thesis, it would be pos-
sible to argue that even a person disinclined to require that all intrusions upon
liberty be somehow justified should nonetheless demand a justification for govern-
mental control over abortion in early pregnancy, and indeed that a particularly
weighty justification of the sort the Court deemed necessary in Roe must be pro-
vided here. For early abortion, like contraception, has characteristics that tend
to push governmental control in directions that expose sexual relationships and other
personal intimacies to official scrutiny in ways arguably incompatible with values
of informational privacy latent in the fourth amendment. Particularly if one
stresses the fact that Griswold v. Connecticut, 381 U.S. 479 (1965), invalidated
only so much of the state law there involved as proscribed "the use of contracep-
tives rather than . . . their manufacture or sale," id. at 485 ; cf. Eisenstadt v.
Baird, 405 U.S. 438, 452-53 (1972) (distribution of contraceptives to unmarried per-
sons) , one can conclude, contrary to any suggestion that this limited holding renders
Griswold less relevant to Roe than it would otherwise have been, see Ely 930;
Heymann 771 n.37, that the Griswold decision offers some support for a new doc-
trine to the effect that, even in the absence of a constitutional right to contracep-
tion (or abortion) as such, government must strictly justify any regulation in these
(or analogous) areas that seriously risks placing intimate information about indi-
viduals or their relationships beyond effective personal control. Compare Stanley
v. Georgia, 394 U.S. 557 (1969) (state cannot prosecute merely private possession
of obscenity in individual's home), with United States v. Orito, 93 S. Ct. 2674
(1973) (no constitutional right to transport or import obscenity for one's own
use). See also note 162 infra.
Because any governmental assertion of power to prevent early abortions com-
311
1 8 HARVARD LAW REVIEW [Vol. 87:1
B. The Prohibited Role of the State: Religious Entanglement
1. Deciding When Human Life Begins. — The most obvious,
and if accepted, the most decisive of the arguments in favor of a
governmental role is that government's "general obligation to
protect [human] life" 84 can reasonably be thought to extend to
the life-in-being of the human fetus "from the moment of con-
ception." 85 If there were general agreement about a develop-
pels a woman to reveal both that she is pregnant — something she might otherwise
have been able to conceal from everyone but her doctor — and that she wishes not
to have the child — something whose revelation she might find an even greater
source of distress, see Finnis, Three Schemes of Regulation, in The Morality of
Abortion: Legal and Historical Perspectives 172, 193 (J. Noonan ed. 1970) —
and because these facts are far more intimate than the physical characteristics that
have been deemed "public" for fourth and fifth amendment purposes, compare
United States v. Dionisio, 410 U.S. 1 (1973) (voice exemplar not protected), with
Schulman v. New York City Health & Hosp. Corp., 70 Misc. 2d 1093, 33s N.Y.S.2d
343 (Sup. Ct. 1972) (requiring name and address of aborting patient on fetal death
certificate unjustifiably invades patient's privacy) , it becomes unnecessary to rely on
the tendency of even the most tightly drawn abortion controls to become, in their
discretionary ("liberal") administration, see 410 U.S. at 208 (Burger, C.J., con-
curring), vehicles of even more intrusive sorts of prying. Thus, even if abortion
laws are not accompanied by the sorts of inquiries which led Sweden's National
Board of Health in 1948 to characterize as "well groomed . . . [but] adequately de-
jected and worried" one woman whom it had refused therapeutic abortion and to
say of another that her divorce was the apparent "result of her limited mental
capacity," Hook, Refused Abortion, 39 Acta Psychiatrica Scandlnavica (Supp.
No. 168) 1, 139-43, 145-46 (1963), their enforcement under the most favorable
conditions still poses substantial threats to informational privacy.
Moreover, to distinguish Roe from Griswold with respect to the government's
burden of justification on the ground that in the latter case, beyond the general
risk of intrusive prying, " [enforcement of the statute would have required actual
invasion of the marital bedchamber," Louisell & Noonan 233, seems indefensible:
(1) because statutes regulating private sexual conduct operate intrusively by trig-
gering intensive and embarrassing official questioning even when no prosecution
results; (2) because the violation of such statutes, on the rare occasions when
they are enforced, is typically evidenced through the volunteered testimony of a
disgruntled participant or through some other source that entails an offense to
the values of informational privacy but no physical ^trespass into a bedroom ; I
because "the Fourth Amendment protects people, not places," Katz v. United
States, 389 U.S. 347, 351 (1967) J (4) because, as the Court put it in Paris Adult
Theatre I v. Slaton, 93 S. Ct. 2628, 2640 n.13 (1973), "the constitutionally pro-
tected privacy of family, marriage, motherhood, procreation, and childreanng
. . . extends to the doctor's office, the hospital, the hotel room, or [wherever else]
required to safeguard the right to intimacy involved"; and (5) because even
physical invasions of the home, once actual children are allegedly being protected,
have not been deemed violative of fourth amendment privacy, see Wyman V.
James, 400 U.S. 309 (1971), so that the balance a court must strike is obviously
too complex to be captured in the presence or absence of a physical intrusion.
84 410 U.S. at 150.
85 Id. at 131.
312
i973] THE SUPREME COURT — FOREWORD 10
mental stage as of which the fetus should be regarded as a human
being with independent moral claims, then the propriety of en-
trusting its protection to government would follow from the con-
sensus that states must have relatively wide latitude in fulfilling
their responsibility to protect existing human lives from de-
struction.86
But the reality is that the "general agreement" posited above
simply does not exist. Some regard the fetus as merely another
part of the woman's body until quite late in pregnancy or even
until birth;87 others believe the fetus must be regarded as a
helpless human child from the time of its conception.88 These
differences of view are endemic to the historical situation in
which the abortion controversy arose.89 Specifically, the advance
of embryology and medicine over the past century and a half
rendered untenable any notion 90 that the fetus suddenly "came to
life" in a physiological sense at a definable point during pregnancy.
Once the embryo's growth had been traced in a continuous line
from a single unfertilized ovum 91 through the unbroken processes
of fertilization, cell division, segmentation (in the case of identical
twins), implantation of the blastocyst in the uterine wall, and
88 Even if one starts from the premise that the fetus is fully a human being
throughout pregnancy, there remains considerable doubt as to the morality of re-
quiring a woman to carry it to term. See, e.g., Thomson, A Defense of Abortion,
i Phil. & Pub. Ait. 47 (1971). See also Notes and Questions on the "Wrongful
Life" Cases, Artificial Insemination, and the Control of Cloning, in L. Tribe,
Channeling Technology Through Law 273-80 (1973). But I proceed on the
assumption that legislatively resolving such doubt against the woman's choice
would not violate the Constitution.
87 A perhaps extreme but by no means unique view was expressed by Dr. Alan
F. Guttmacher: "My feeling is that the fetus, particularly during its early intra-
uterine life, is simply a group of specialized cells that do not differ materially from
other cells." Symposium — Law, Morality, and Abortion, 22 Rutgers L. Rev. 415,
436 (1968).
88 See 410 U.S. at 159-61. Exactly what point in the spectrum of relevant bio-
logical events such persons define as the "time of conception" is usually quite
obscure, as is the definition of when a child is in fact "born" within the under-
standing of those for whom birth marks the "moment" at which a new human life
begins. Needless to say, all intermediate points — such as "quickening" or "via-
bility"— are also difficult to define in any wholly satisfactory way. Cf. note 18
supra & note 92 infra.
89 For a remarkable assertion that a consensus now exists, see Horan, Gorby &
Hilgers, Abortion and the Supreme Court: Death Becomes a Way of Life, in
Abortion and Social Justice 301, 318 (T. Hilgers & D. Horan eds. 1972).
90 410 U.S. at 160. See also Fienus, "A Book on the Formation of the Fetus
in Which It is Shown that the Rational Soul Is Infused on the Third Day" (1620),
in Anonymous, De animatione foetus, 11 Nouvelle Revue Theologique 182
(1879), in Noonan, An Almost Absolute Value in History, in The Morality of
Abortion: Lecal and Historical Perspectives i, 34 (J. Noonan ed. 1970).
91 Karl Ernest von Baer discovered the human ovum in 1827; by 1875 the
joint action of spermatozoon and ovum had been determined. Noonan, supra note
90, at 38.
313
20 HARVARD LAW REVIEW [Vol. 87:1
gradual fetal development to the point of birth, those who believed
in the sanctity of the fetus from the "moment" of quickening, or
from some other "moment," were deprived of the ability to link
their belief to any distinct physical or biological event other than
perhaps "conception," which was itself later revealed as a com-
plex and continuous process.92
As often occurs when the progress of science exposes the
complexity beneath events formerly conceived in simpler terms,03
inchoate feelings that could at one time have been clothed in
secular trappings were thus forced into the mold of religious
affirmations. For although none could deny that the developing
fetus, and indeed the unfertilized ovum, represented "potential
human life," and while all could agree that the infant at birth was
fully and independently a human being and entitled to treatment
as such, the question of when the mysterious discontinuity was
crossed — when the embryo or fetus "became fully human" —
could not be discussed in secular terms at all. In fact, the only
bodies of thought that have purported in this century to locate
the crucial line between potential and actual life have been those
of organized religious doctrine.94 It is important to recognize that
92 410 U.S. at 161.
The difficulty with drawing any line at "conception" so as to create a distinction
between contraception and abortion is underscored by the growing range of de-
vices such as the IUD, and chemicals such as the "morning-after" pill, which cannot
be distinctly characterized as contraceptives or abortifacients. See, e.g., Note,
Criminal Law — Abortion— The "Morning-After Pill" and Other Pre-Implanta-
tion Birth-Control Methods and the Law, 46 Ore. L. Rev. 211 (1967)- If s°me
moral difference between contraception and abortion is thought to lie in the fact
that abortion prevents the birth of a person with a specific and determined genetic
composition while contraception merely prevents the birth of a "statistical" person,
cf. Calabresi, Reflections on Medical Experimentation in Humans, 1969 Daedalus
387, 388-92; Fried, The Value of Life, 82 Harv. L. Rev. 1415, 1416 (1969) ; Tribe,
Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L.
Rev. 1329, 1373 & n.140 (1971), then a chemical operating to destroy chromo-
somes during the process of their recombination after the nuclei of sperm and
ovum had each divided would have to be deemed a contraceptive, since the genetic
identity of the new individual would still have been undetermined when the chem-
ical did its work, whereas a chemical operating to induce the recombined chromo-
somes to continue dividing and recombining indefinitely, so as to prevent the
fertilized ovum from ever undergoing normal cell division, would have to be
deemed an abortifacient — indeed, a multiple abortifacient — since a new genetic
identity would have been determined with each chromosomal recombination.
Whether chemical substances with these precise properties will ever be discovered
or synthesized is irrelevant to the conclusion that, so long as their existence is not
unthinkable, one need only imagine their operation to see how arbitrary is the
distinction posited and how problematic is any notion of "conception" as an ob-
jectively definable event.
93 See generally T. Kuhn, The Structure of Scientific Revolutions (1962).
94 More modest theories disavow any certainty as to which event marks the
314
i973] THE SUPREME COURT — FOREWORD 21
this has not been an accident; for the question when human life
truly begins asks not for a discovery of the point at which the
fetus possesses an agreed-upon set of characteristics which make
it human, but rather for a decision as to what characteristics should
be regarded as defining a human being.95 And, at least at this
point in the history of industrialized Western civilization,90 that
decision in turn entails not an inference or demonstration from
generally shared premises, whether factual or moral, but a state-
ment of religious faith upon which people will invariably differ
widely.
Legislatures were thus trapped. Unable simply to ignore the
line between the potentially and actually human 97 — and yet
crucial transition but conclude that conception should be deemed decisive so as to
avoid any risk that, by choosing a later line, one will mistakenly overshoot the
correct point. Whether or not such "mortal wager" formulations evidence the very
corruption of religious thought which the draftsmen of the establishment clause
feared would be occasioned by church-state entanglement, see p. 22 infra, is
unclear, but the premise on which even they rest — that there is in fact a moment,
albeit one that human beings may be forever barred from correctly identifying,
after which the fetus must be considered, in some objective rather than merely
conventional sense, an independent human being — is unmistakably religious in
the sense used in the text.
95 It thus confuses the nature of the question to charge that those who would
not find the characteristics of the embryo or early fetus sufficient to warrant its
treatment as fully human are guilty of "the error of fact that a fetus is not a
human being." Drinan, The Inviolability of the Right to be Born, in Abortion
and the Law 123 (D. Smith ed. 1967). See also Horan, Gorby & Hilgers, supra
note 89, at 318.
96 In a culture which draws less sharp a dichotomy than does our own between
human and other life, or between the living and the inanimate, the entire debate
would take a different form and my conclusions might well fail to hold.
97 Even though coherent moral or ethical theories might render such a line
irrelevant, see generally S. Bok, Ethical Problems of Abortion, 1973 (forthcoming
article prepared for Harvard Interfaculty Seminar on Child Rearing in Urban
America), the inescapable fact remains that large numbers of people continue to
believe that the "rightness" or "wrongness" of interfering with a woman and her
family by denying an abortion depends crucially on whether the fetus at the time
of its proposed destruction is a "real" human being or only a "potential" one. As
long as this view is so widely held, "[e]very discussion of abortion must, in the
final analysis, begin and end with a definition of what one thinks of a human
embryo or fetus." Drinan, supra note 95, at 107; see id. at 122-23. See also
Brief of Women for the Unborn at 10, Roe v. Wade, 410 U.S. 113 (1973);
Noonan, supra note 90, at 51, 58; Clark, Religion, Morality, and Abortion: A
Constitutional Appraisal, 2 Loy. L.A. L. Rev. i, 8-9 (1969).
As if to underscore the point, the Rhode Island General Assembly reacted to
Roe by enacting a measure declaring that "human life commences at the instant
of conception ..." Senate Bill 73-S287 Substitute A, An Act Relating to Abor-
tion, passed and signed March 13, 1973. See Conley & McKenna, The Supreme
Court on Abortion — A Dissenting Opinion, 19 Cath. Lawyer 19, 27 & n.31 (1973).
In a straightforward application of Roe, the Court of Appeals for the First Cir-
cuit recently declared the statute inoperative. Doe v. Israel, 482 F.2d 156 (1st
315
2 2 HARVARD LAW REVIEW [Vol. 87:1
unable to search for it in secular terms 08 — they could not escape,
as long as the decisional role was theirs, from the whirlpool of
religious disputation." So it was that Justice Blackmun, writing
for the Court in Roe, had to recognize the highly charged and
distinctly sectarian religious controversy that the abortion issue
had predictably come to stir.100 That recognition, though not
relied upon by the Court for its holding, strongly supports the basic
allocation of roles mandated by Roe. For although the fact of
heated political controversy alone would hardly be a source of
alarm, the "first and most immediate purpose" of the establish-
ment clause was to prevent "a union of government and religion
[that] tends to destroy government and to degrade religion." 101
It is largely for this reason, I believe, that the Court has in-
sisted that "religious organizations . . . structure [their] rela-
tionships ... so as not to require the civil courts to resolve
ecclesiastical questions," 102 and that religious motivation has re-
sulted in the invalidation of a law indefensible on any nonreligious
ground even though it did not impermissibly aid religion.103 For
Cir. 1973) (denying stay pending appeal from declaratory judgment of unconsti-
tutionality on ground that state statute was clearly invalid under Roe).
98 See pp. 19-21 supra. See also N.Y. Times, May 14, 1972, § 4, at 4, col. 3.
99 See, e.g., N.Y. Times, Jan. 2, 1973, § 1, at 24, cols. 1-3; N.Y. Times,
May n, 1972, § 1, at 40, cols. 3-5. See also San Francisco Chronicle, Aug. 23, 1973,
at 22, cols. 4-8; Los Angeles Times, Apr. 28; 1967, at 1, col. 4; id. at 3, col. 4.
100 410 U.S. at 116, 160-61. See, e.g., The Philadelphia Evening Bulletin, Nov.
21, 1972, at 1, col. 3; cf. United States v. Vuitch, 402 U.S. 62, 78-79 (1971)
(Douglas, J., dissenting). As Governor Rockefeller of New York observed in
vetoing a repeal of his state's liberalized abortion law: "[T]he extremes of per-
sonal vilification and political coercion brought to bear on members of the Legis-
lature raise serious doubts that the votes to repeal the reform . . . represented the
will of a majority of the people of New York State." N.Y. Times, May 14.
1972, at 62, col. 3.
,01Engel v. Vitale, 370 U.S. 421, 431 (1962); see Freund, Comment: Public
Aid to Parochial Schools, 82 Harv. L. Rev. 1680, 1692 (1969)-
For an unconvincing attempt to equate the concern about religious divisiveness
in politics with a general concern for the "avoidance of strife," see Schwartz, supra
note 78, at 711.
102 Presbyterian Church v. Mary Elizabeth Church, 393 U.S. 440, 449 (1969);
cf. Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94, 120-21 (19S2); Watson v.
Jones, 80 U.S. (13 Wall.) 679, 728-29 (1871). See also note 108 infra.
103 In Epperson v. Arkansas, 393 U.S. 97 (1968), the Court invalidated as an
establishment of religion a statute forbidding the teaching of Darwin's theory of
evolution in any public school or university. Unable to hold that a state must
teach every subject whose omission would aid some religious group, the Court
could not say that eliminating biology from the curriculum altogether, for example,
would impermissibly aid fundamentalist Christians who oppose Darwin. Professor
Ely therefore seems correct in concluding that, because eliminating the theory of
evolution alone aids fundamentalists no more than would the total omission of
biology, the law's infirmity had to lie elsewhere, see Ely, Legislative and Admin-
316
i973] THE SUPREME COURT — FOREWORD 23
evidence of religious motivation provides a warning that govern-
ment and religion may have become too "entangled," and the
absence of a secular purpose makes excessive entanglement a
definitional certainty.
Proof of excessive entanglement, however, need not turn on
the number of legislators who can be shown to have been religious-
ly motivated in voting for or against a given law,104 or on the
absence of nonreligious explanations for its provisions. Some
such showings might well be required when the constitutional
attack is leveled at a particular legislative or other official act.105
But I would argue that a broader establishment clause issue,
going to a whole area of governmental regulation, is raised when-
ever the views of organized religious groups have come to play a
pervasive role in an entire subject's legislative consideration for
reasons intrinsic to the subject matter as then understood.100 The
istrative Motivation, supra note 29, at 1318: in its undoubtedly religious motiva-
tion, coupled with the absence of any other conceivable reason for the state's
curricular excision. Defending the Court's use of motivation on the conventional
ground that it merely exposed the law's "real" effects is unpersuasive ; as has been
noted, curricular omissions no less helpful to the fundamentalists than the one
struck down in Epperson could not plausibly be deemed violative of the establish-
ment clause, a conclusion impossible to square with any test making "effect,"
whether dominant or primary or otherwise, the sole determinant. Nor does it
seem wholly satisfactory to rest one's defense of Epperson's use of motivation on
Professor Ely's formal "argument by default," which says, see id. at 1262, 1266,
12 73-74. that a forbidden motive must be relevant because nothing else could ever
provide an acceptable basis for striking down any particular exercise of a govern-
mental power to make broadly discretionary choices. See Brest, Palmer v. Thomp-
son: An Approach to the Problem of Unconstitutional Legislative Motive, 1971
Sup. Ct. Rev. 05, 140-41 n.215.
104 Cf. Ely, Legislative and Administrative Motivation, supra note 29, at 1267.
105 See id. at 1272-74, 1324-25. But see Brest, supra note 103, at 136-46.
06 I do not doubt that virtually every normative judgment is potentially trace-
able to one or more ultimate premises that could be deemed religious. See Ramsey,
Reference Points in Deciding about Abortion, in The Morality of Abortion 60,
61-62 (J. Xoonan ed. 1970). I would thus reject the view suggested by Henkin,
Morals and the Constitution: The Sin of Obscenity, 63 Colum. L. Rev. 391, 402-11
(1963), that a society's values can somehow be stacked into two distinct piles, one
resting on an empirical base and the other supported "only" by a theological
foundation. But some controversies nonetheless come to turn on differing impli-
cations from, or divergent visceral reactions to, an accepted body of data and a
set of ends and principles so widely shared — and so "secular" in appearance — as
to render unnecessary the baring of their potentially more controversial religious
underpinnings. However religious may be the wellsprings of the view that murder
and mutilation are wrong, for example, discussions about public policy in this area
can readily avoid open confrontation with controverted religious premises. But a
controversy may be so structured in a particular social and historical context that
no attempt to resolve it in a public forum can avoid explicit confrontation with
the religious differences that ultimately divide the disputants; only such a con-
troversy would trigger the doctrine here suggested.
317
24 HARVARD LAW REVIEW [Vol. 87:1
evil in such a situation need not lie in the particular statutes or
amendments that emerge from so religiously charged a milieu.1"7
but in the continual pressures to which the milieu itself subjects
lawmakers as long as they retain a decisionmaking role. When-
ever this evil can be demonstrated, all substantive governmental
controls within the "entangled zone" could quite plausibly be
deemed tainted, and hence unconstitutional, in the absence of an
affirmative demonstration that a particular control is needed to
serve a compelling purpose that can be defined, and defended as
applicable, in terms generally regarded to be wholly secular.108
The proposed doctrine would not suggest, however, that all
legislation is void whenever various religious groups have ex-
erted powerful and discordant political pressure on state and
national legislatures.109 Indeed, if the constitutionality of legis-
lation were to turn entirely on the identity of the lobbyists and the
intensity of their activity, there would be a serious danger of
manipulative efforts, with various religious groups feeling impelled
or enticed by the test either to conceal or to feign interest in an
area of legislative activity or inaction.
Instead, the theory suggested here would find excessive en-
107 As a theoretical matter, it might be possible to identify selected jurisdictions
where the religious milieu is such as to reduce greatly the entanglement risks
attendant upon making the role a governmental one, even when pressures exerted
indirectly by groups in other jurisdictions are taken into account. Cf. Wedlock &
Jasper, Parochaid and the First Amendment: Past, Present and Future, 2 J L. &
Education 377, 394 (1973). But virtually the only effect of allowing government
to retain control in these few jurisdictions would be the imposition of restraints
on the disadvantaged, immobile groups within such jurisdictions.
108 Cf. Ellington, The Principle of Nondivisiveness and the Constitutionality of
Public Aid to Parochial Schools, 5 Ga. L. Rev. 429, 447, 453-54 (i97i)- Although
the test proposed here is somewhat novel, it is not without precedent. On the
contrary, it was partly on the basis of an analogous theory that the Supreme Court
in Lemon v. Kurtzman, 403 U.S. 602 (1971), struck down state salary supplements
for parochial school employees. Although the plan invalidated in Lemon was de-
signed to ensure purely secular use of state funds, the Court thought that its ad-
ministration would have aggravated the "potential for political divisiveness related
to religious . . . practice." Id. at 623. And this Term, in Committee for Pub.
Educ. v. Nyquist, 93 S. Ct. 2955 (i973), the Court invalidated an aid program
containing tuition grants and tax relief provisions requiring no administrative in-
trusion of state power into religious activity. In partial support of its decision, the
Court stressed the prospect of "serious divisive political consequences" arising out
of "the pressure for frequent enlargement of the relief" and the disputes over "the
deeply emotional [issue] of Church-State relationships" that such pressure would
inevitably generate. Id. at 2977-78.
A quite different entanglement theory from the one suggested in the text focuses
on governmental interference with religious autonomy. See, e.g., Lemon, supra, at
621-22; Waltz v. Tax Comm'n, 397 U.S. 664, 672, 674 (i97<>).
109 Cf. Choper, The Establishment Clause and Aid to Parochial Schools, 56
Calit. L. Rev. 260, 273 (1968).
318
I973] THE SUPREME COURT — FOREWORD 25
tanglement only when the involvement of religious groups in the
political process surrounding a subject of governmental control is
convincingly traceable, as it is in the case of abortion, to an
intrinsic aspect of the subject itself in the intellectual and social
history of the period.110 And the theory would in no event sup-
port a conclusion that religious entanglement alone requires the
invalidation of a legal control for which a compelling need can be
plausibly demonstrated by "ways of reasoning acceptable to all" 1U
from wholly secular premises, premises resting on "a common
knowledge and understanding of the world." n2
Forbidding the destruction of living human beings, the pro-
posed justification with which the analysis in this section began,
states a compelling secular purpose, but not one whose connection
with the destruction of fetal "life" can be established in any
wholly secular way. Thus, given the problem of religious entangle-
ment, any justification for a governmental role in the abortion
decision must be grounded in some other compelling secular ob-
jective.
2. Secular Justifications: Potential Life, Infanticide, and
Maternal Health. — Three secular purposes may be advanced to
justify a governmental role in prohibiting various categories of
abortions notwithstanding the risks of religious entanglement.
(a) Potential Life. — Although the Court in Roe considered
what it termed the state's "interest" in protecting "potential
110 The "intrinsicality" requirement here stated includes two separate elements.
First, contemporary social attitudes and conditions must be such that legislatures
exercising a decisional role in the disputed area are forced to focus on a particular
question — in the abortion context, that of when life begins. See notes 97-99
supra. Second, the resolution of that question must turn on controversial religious
judgments. Cf. note 106 supra. When these two elements are present, and when
no compelling secular justification appears, any fear that the entanglement test
will be overly broad or unduly manipulable seems most unrealistic. Moreover, the
presence of a compelling secular justification should itself cast doubt on whether
the first element of the test has in fact been met.
111 J. Rawls, A Theory of Justice 213 (1971).
112 Id. Nor could the proposed test support a conclusion that government must
withdraw from any area as broad as the raising and allocation of public resources,
the structure and functioning of public services like education, or the creation of
the basic ground rules facilitating private transactions and personal associations —
areas which are generally deemed indispensable to government's fulfillment of its
basic role, and which are in any event too sweeping in the range and depth of their
effects to permit any claim that religion had become pervasive throughout their
reach. The proposed test is thus such a narrow one that few areas of legislative
control seem likely ever to be struck down by it. But other elements of first
amendment doctrine, see, e.g., p. 15 supra, will probably prove decisive with
greater frequency than religious entanglement in deciding that a role is barred to
government. TesUng these hypotheses in specific areas outside abortion should
prove instructive but is beyond the scope of this Foreword.
319
26 HARVARD LAW REVIEW [Vol. 87:1
life," m it did not focus on the argument, obviously inescapable
from a role-allocation perspective, that the directly involved
woman and her family are in a worse position to weigh the interests
bearing on potential human life, which all agree the fetus repre-
sents, than is the relatively disinterested government. If the
state's only burden were that of providing some plausible account
of how its controls might advance a legitimate goal, the argument
being considered at this point could well suffice. But although the
analysis of this Foreword began by ascribing to government no
heavier burden than that,114 the religiously entangled character
of the process triggered by state authority to control abortion
choices yields an unusually heavy burden of justification, and one
can hardly characterize as "compelling" the argument that govern-
ment is in a better position than the woman and her family to
decide whether one more life should be brought into the world.
Nor can the "potential life" argument as such come to anything
more than that; for any attempt to link it with arguments that
rely on what the fetus already is, as opposed to what it has the
potential to become, would obviously fail to provide a wholly
secular justification for governmental intrusion.
To accept the "potential life" interest as compelling in this
context, therefore, would be to say that the values supposedly
served by a more "detached" determination of the pros and cons
of creating an additional future life overcome those implicit in the
constitutional condemnation of church-state entanglement. But
allowing this incremental gain in disinterestedness to outweigh the
religion clauses of the first amendment would be difficult to recon-
cile with their central place in our scheme of government.115
(b) Infanticide. — I suggested earlier that the evolution of
science led to a concept of fetal development too continuous to
support any identification of a particular point in such develop-
ment as intrinsically marking the start of human life.116 It was
for this reason that arguments advancing fetal humanity as the
113
1 11
410 U.S. at 150, 159, 162-63.
11" See pp. 16-17 supra.
"5The attribution of significance to this increment itself bears troublesome
overtones of a religious character. Whether or not those overtones are deeme<
significant, a court deciding that the state's alleged ability to consider dBinterest-
edly the arguments for one more potential life does not constitute a con,pelUnR
secular justification for religiously entangled state control over early abortion wouli
obviously have in some sense to "balance" the values involved. But the exerc.se 0
judgment which this balancing process requires seems the irreducible minimum if
courts are to perform anything beyond a purely formal judicial task and an dis-
tinguishable from judicially postulating a fixed set of permissible and prohibited
ends. See pp. 12-13 & notes 69, 70 supra; cf. YWCA v. Kugler, 341 F. Supp.
1074 (D.N.J. 1972) (interest in population growth cannot override nght to earl>
abortion). But see Lee, supra note 25, at 472.
116 See pp. 19-20 supra.
320
i973] THE SUPREME COURT — FOREWORD 27
basis for a governmental prohibition of abortion necessarily in-
volved the entanglement of religion with politics. But there exists
a middle ground between attempting to rely solely on the poten-
tiality of life and seeking to locate human life itself in some in-
trinsic aspect of embryonic or fetal growth. One can instead
focus, as the Court ultimately did, on the extrinsic criterion of
viability, which asks whether, given current technology, the fetus
could "live outside the mother's womb, albeit with artificial
aid." 117 Once the fetus can be severed from the woman by a
process which enables it to survive, leaving the abortion decision
to private choice would confer not only a right to remove an un-
wanted fetus from one's body, but also an entirely separate right
to ensure its death.
Apart from the problematic character of any claim in behalf
of the latter right,118 its recognition and enforcement would be
indistinguishable from recognizing and enforcing a right to com-
mit infanticide, a crime nowhere mentioned by the Court in Roe.
For the viable fetus may be removed in precisely the same way in
late pregnancy — whether surgically or by chemically induced
labor — regardless of one's intentions as to its ultimate survival.119
A premature birth followed by the deliberate killing of what the
doctor had removed or delivered would look and sound the same
whether the intent to kill had been formed only after the birth
was completed or had been present throughout the episode.120 To
call the first of these acts "infanticide" and the second "abor-
tion" 121 or even "feticide" is to play with names that bespeak no
relevant difference.122
Viability thus marks a point after which a secular state could
properly conclude that permitting abortion would be tantamount
17 410 U.S. at 160 (footnote omitted). Presumably the Court contemplated
"artificial aid" reasonably available in light of contemporary technology.
118 See note 24 supra. This treatment of the claim assumes a technology in which
viability occurs so late in pregnancy that removing the fetus in a manner con-
sistent with its survival is no more onerous for the woman than removing it in a
way that leads to its destruction. If this ceases to be the case, however, then the
woman's legitimate interest may come to encompass a claim to sever even the
viable fetus in a manner dangerous to it. That technological developments bring-
ing about such a situation might alter one's constitutional conclusions merely
reflects a Constitution capable of adaptation over time. See note 13 supra; cf.
Katz v. United States, 389 U.S. 347, 352-53 (1967); id. at 360-62 (Harlan, J.,
concurring). Indeed, the very fact of religious entanglement is itself historically
contingent and would not persist if the relevant social attitudes were to change
radically. Cf. notes 97, 106, no supra. See also note 127 infra.
'ee note 24 supra.
'" Nor is the substance of the argument altered if the process of removal
itself is calculated to kill.
'21 Cf. note 24 supra.
12 Nobel Laureate James Watson is reported to have "urged that doctors
attending the birth of laboratory-conceived human beings be given the right to
321
28 HARVARD LAW REVIEW [Vol. 87:1
to permitting murder,123 not because of some illusion that this
biologically arbitrary point signals "any morally significant change
in the developing human," 124 and certainly not because of any
(necessarily religious) notion that the fetus is intrinsically a
human being from that technology-dependent point forwar
but rather on the secular and quite practical ground '-" that a
state wishing to prevent the killing of infants simply has no way
to distinguish the deliberate destruction of the latter from what
is involved in postviability abortions.127 It is not only that such
abortions lie close to infanticide, and hence not far from other
horrors along the "slippery slope," but rather that, in every
functional sense, they occupy the same place on that fabled
plane.128
Earlier, I criticized the Court in Roe for its essentially un-
explained identification of viability as the point at which the
state's interest in protecting potential life becomes "compel-
ling." 129 But the preceding discussion might reflect precisely what
Justice Blackmun had in mind when he said that, given the ability
of a viable fetus to live outside the womb, "regulation protective
of fetal life after viability ... has both logical and biological
justifications." 130
terminate the lives of the infants if they are grossly abnormal." Time, May 28,
1973, at 104. Noting that "most birth defects are not discovered until birth," Watson
suggests that "[i]f a child were not declared alive until three days after birth, then
all parents could be allowed the choice that only a few are given under the present
system," Watson, Children From the Laboratory, Prism, May 1973. at 12, 13, as
though this verbal change could somehow alter the moral reality of what he pro-
poses.
123 The same considerations that support a finding of "compelling secular
justification" at viability might also support a conclusion that the abortion decision
is not even intrinsically entangled by religion beyond that point. See note no
supra.
124Tooley, Abortion and Infanticide, 2 Phil. & Pub. Aff. 37, 38 (1972).
125 Cf. note 18 supra.
126 See note 106 supra.
127 This argument assumes again, cf. note 118 supra, that viability occurs late
enough in pregnancy so that a spontaneous premature delivery of a live fetus at
that point, for example, would be generally regarded as the "birth of a child." If
viability is pushed into very early pregnancy, the distinction said in text to be
impossible to make may become more plausible.
128 The inability to distinguish postviability feticide from infanticide, and
hence the state's power to prohibit both, may entail serious hardships for t
woman or family involved. Insofar as the state might forbid, or fail to facilil
adoption of the resulting child, the psychological and economic burdens of parent
hood may be considerable. But our society does not regard killing as an acceptable
remedy. See 410 U.S. at 153, 163-65 (despite burdens of caring for unwanted child,
state may prohibit postviability abortion. But cf. note 24 supra.).
128
— See p. 4 supra.
130 410 U.S. at 163. Thus the Court proved correct in its assertion - whicn
322
i973] THE SUPREME COURT — FOREWORD 2Q
The legitimate governmental role recognized by the analysis
of this Foreword is that of preventing fetal destruction to the
degree consistent with allowing private choice to govern the de-
cision as to fetal separation.131 It was only insofar as the latter
decision entailed fetal destruction that an intrinsically religious
justification for governmental control proved unavoidable; and so
long as the two decisions remain inseparable — that is, until
viability — the governmental purpose of preventing infanticide
does not provide a secular rationale for control. For just as
the state is unable to distinguish postviability "abortions" from
infanticide, so it is unable — within the limits of the secular —
to treat previability abortions as though they involved the murder
of infants.132
(c) Maternal Health. — A third and final justification for
a governmental role in the abortion area is that abortion pro-
cedures, and occasionally the very fact of an abortion, might
some have found to be "incredible," see Conley & McKenna, supra note 97, at
21 — that it "need not resolve the difficult question of when life begins," 410 U.S.
at 159, in order to hold that a state may not, "by adopting one theory of life,
. . . override the rights of the pregnant woman that are at stake." Id. at 162. For
in selecting the functional notion of viability as the point after which abortion
could be prohibited, the Court needed to make none of the ultimate religious judg-
ments that it properly ruled were beyond government's reach. Though one would
hardly wish to compare Roe's uncertain trumpet with the masterful symphony of
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the fact is that Roe, like
Marshall's masterpiece, left the Court in "the delightful position ... of rejecting
and assuming power in a single breath," R. McCloskey, The American Supreme
Court 42 (i960) — of rejecting the power to resolve so religiously charged an
issue as that of when life first begins, while exercising the power to deny the
authority for its resolution to other governmental institutions as well. See note
137 infra.
31 This formulation implies, among other things, that government should be
powerless to interfere with a woman's decision to remove even a viable fetus un-
less she does so at a time or in a manner significantly reducing the probability of
its survival relative to the likelihood that it would survive if delivered normally
and at full term. Precisely what follows from this proposition, which may itself
be to some degree inconsistent with Roe's holding as to postviability abortions,
see 410 U.S. at 163-64, depends on medical data not readily available and raises
issues beyond the scope of this Foreword.
32 Of course, if one could demonstrate a significant likelihood that the murder
of infants would follow from allowing previability abortions, I do not doubt that
tion predicated on such a danger would be compellingly justified. But avail-
able evidence suggests that the posited link could not be established, see S. Bok,
supra note 97, at 26-28, and a court should be reluctant to accept the contrary
argument without substantial proof, particularly given the risk that religious con-
siderations will have motivated the assertions made. Nor should any alleged danger
of societal "brutalization," a suspiciously diffuse and amorphous concept unless
more precisely delineated, be considered a compelling secular justification. Cf.
VWCA v. Kugler, 342 F. Supp. 1048,. 1073 (D.N.J. 1972) (general welfare too
amorphous to overcome a woman's fundamental right to decide whether to abort).
323
3o HARVARD LAW REVIEW [Vol. 87:1
seriously threaten the woman's physical or mental health in some
definable category of cases.133 Throughout pregnancy, the con-
cern for maternal health obviously justifies some governmental
regulation over where, how, and by whom an abortion may be
performed; the Court in Roe concedes as much by holding that
states may forbid all abortions performed by persons other than
licensed physicians.134 The fact that childbirth causes more
women to die than do first-trimester abortions obviously does not
warrant the Court's conclusion that state controls over first-
trimester abortion procedures must be limited to requiring a
licensed physician, or indeed that such controls must be limited
to whatever state regulations exist governing medical practice
generally.135 For it is conceivable that even very early abortions
would in some particular category of cases pose substantial and
distinctive risks to maternal life or health unless specified proce-
dures were complied with. So long as procedural requirements
defended in terms of health are not used as a subterfuge to forbid
early abortions on other grounds, the argument for their imposi-
tion by law seems compelling enough to justify their promulga-
tion and enforcement.
Moreover, a state's power to protect people from inflicting
serious harm upon themselves might in selected categories of cases
justify forbidding abortion altogether. If it could be demon-
strated that abortion would threaten the lives or health of a par-
ticular group of women much more seriously than would com-
pelled pregnancy and coerced childbirth, it would seem that such
abortions could constitutionally be forbidden at any stage of
pregnancy. But I am aware of no definable category of cases as
to which early abortion is more medically dangerous to the woman
than childbirth would be, and I doubt that any such category
exists.136
3. Justifying the Judicial Role. — In reaching the conclusion
133 Although one must strain to take seriously anti-abortion arguments based
on fetal survival or maternal health in view of the "common knowledge that if
women cannot obtain [lawful] abortions . . . many [will] subject themselves to
the notorious 'backstreef abortion . . . fraught with the myriad possibilities of
mutilation, infection, sterility and death," YWCA v. Kugler, 342 F. Supp. 1048,
1074 (D.N.J. 1972), obvious institutional considerations nonetheless counsel
against acceptance of any general principle that a law's frequent violation should
contribute to its constitutional downfall.
134 See note 20 supra.
135 See p. 4 supra.
138 Whether a state could nonetheless delegate to medical experts the dis-
cretionary power to identify particular women for whom abortion should be pro-
scribed as excessively dangerous to life or health raises an issue separable from that
of government's power to forbid a defined class of abortions and will be discussed
at a later point in this Foreword. See pp. 37~38 & note 167 infra.
324
i973] THE SUPREME COURT — FOREWORD 31
that none of the reasons advanced in favor of a governmental role
in regulating previability abortions is compelling, a court must
overturn the implicit judgment of legislatures, in their role as
role-allocators, that the abortion decision should not be entrusted
to private choice. But any suggestion that judges should defer
to such a determination so as not to "second-guess" the balance
it embodies would be misplaced. First, the customary assump-
tion that legislation reflects a balanced weighing of permissible
objectives and is thus entitled to judicial deference is brought to
the breaking point when the challenged legislation has been shaped
in the cauldron of heated religious controversy.137 Second, when
the question before a legislature is whether it should permanently
and completely relinquish its role in an area that has for a time
been part of its jurisdiction, rather than whether it should merely
alter its controls or temporarily abandon them,138 the answer
comes from a source that cannot act disinterestedly in the mat-
ter.139
No analogous considerations could have been adduced to
justify the Court's extraordinary willingness during much of the
Lochner era, despite its persistent disclaimers,140 to substitute its
own judgments for those of legislatures on such purely empirical
questions as the probable health effects of working at a certain
occupation for a given number of hours.141 A court pursuing a
37 The Court too may obviously be subjected to religious pressures in con-
sidering an issue like abortion, but all judgments under the religion clauses in-
herently have that character. Unless those clauses are to become uniquely un-
enforceable through judicial review, this objection cannot be deemed fatal.
Deciding whether an area is religiously entangled and what constitutes an adequate
secular justification are inescapable judicial tasks. See Mansfield, Book Review, 52
Calh-. L. Rev. 212, 216 (1964). It would nonetheless be impermissible for the
judiciary to resolve an intrinsically religious question on nonsecular grounds. See
cases cited note 102 supra. See also note 130 supra.
iB Note that most of the constitutional arguments against a governmental role
would be satisfied only by a complete withdrawal of legislative jurisdiction. In
particular, the fear of recurring religious intrusion into polhics calls for more than
a lifting of constraints on abortion under circumstances leaving the legislature
vulnerable to pressure for their renewed imposition; and the concern for assuring
the role of women as equals, see pp. 39-41 infra, can be fully met only if
withdrawal of state controls over abprtion is perceived as an affirmation of basic
rights rather than as a prudential concession that might be reversed later. Cf.
Tribe, Policy Science: Analysis or Ideology?, 2 Phil. & Pub. Aff. 66, 87-89 &
nn-54. 56 (1972).
3B Constituent pressures, and an inevitable disinclination to foreclose one's
own options, might be expected to operate here almost as powerfully as an un-
willingness to apportion oneself out of office no doubt operates in that sphere of
judicial review. See Baker v. Carr, 369 U.S. 186 (1962). See also Lewis, Legislative
Apportionment and the Federal Courts, 71 Harv. L. Rev. 1057 (1958).
140 See, e.g., Lochner v. New York, 198 U.S. 45, 56-57 (1905).
141 See, e.g., Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 519-20, 533-34
325
32 HARVARD LAW REVIEW [Vol. 87:1
mode of adjudication more alert to questions of roles and their
proper allocation could hardly have failed to perceive its obliga-
tion to explain the role it assumed in producing such factual
edicts. In contrast, the judiciary's function in confining a legis-
lature's claims as to the reach of its own role is altogether tradi-
tional and leaves little mystery as to the institutional propriety
of a conclusion that previability abortion decisions lie beyond
the legislature's lawful grasp.
4. Toward a Personal Question Doctrine. — The first amend-
ment concern for religious-political disentanglement thus provides
a general frame of reference which, in the setting of the con-
temporary social experience with abortion, indicates that defining
and applying the criteria for permissible abortion should not be a
governmental function before viability. Just as one can regard
the delegation doctrine as resting on the principle that certain
categories of decisions ought to be made by politically accountable
bodies rather than by wholly unaccountable decisionmakers,142
and just as one can understand the political question doctrine as
reflecting the notion that some sorts of decisions ought to be
"unprincipled on principle" and hence should be remanded to a
political discretion unchecked by judicial review,143 so too the
conclusions thus far reached might be expressed as a "personal
question" doctrine — a doctrine embodying the concept that
some types of choices ought to be remanded, on principle, to
private decisionmakers unchecked by substantive governmental
control.144
(1924) (Brandeis, J., dissenting) ; Pollock, The New York Labour Law and the
Fourteenth Amendment^ 21 L.Q. Rev. 211, 212-13 (1905). Nor does the particu-
laristic "interest-balancing" surface of Roe suggest, as a role-allocation analysis
could, any basis for the Court's failure to defer to the legislatively struck balance
in that case. See also note 25 supra.
142 See A. Bickel, The Least Dangerous Branch 181 (1962); cf. Columbia
Broadcasting Sys. v. Democratic Nat'l Comm., 93 S. Ct. 2080, 2087-90 (1973) ;
McGautha v. California, 402 U.S. 183, 287 (197O (Brennan, J., dissenting). See
generally Leary v. United States, 39s U.S. 6 (1969) (it Congress wishes to make
mere possession of narcotics a crime, it must do so explicitly and cannot employ
attenuated presumptions to circumvent that obligation).
143 See Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L.
Rev. 1265, 1302-03 (1961).
144 Cf. Application of President & Directors of Georgetown College, 331 F.2d
1010, 1015 (D.C. Cir. 1964) (Burger, J., dissenting), cert, denied, 377 U.S. 978
(1964). See also the recent suggestion by some of Roe's critics that the Court
should have declared "when life begins" to be a political question, Conley &
McKenna, supra note 97, at 21, which would of course have triggered all the
problems of entanglement discussed in this Foreword.
Completeness requires one to note that, if governmental power to decide which
abortions in early pregnancy are permissible leads to dangerously divisive religious
involvement, then the solution I have inferred from the Constitution is but one
326
I973] THE SUPREME COURT — FOREWORD 33
C. The Protected Role of Private Choice: Group and
Individual Rights
The next task is to consider whether the Constitution can
offer any significant guidance at the second level of role allocation,
the level which asks what group or individual outside govern-
ment should be empowered to make the decision in question.
A role analysis indicating that a choice should be left in the
private domain will occasionally point directly to certain groups
as the preferred decisionmakers, as in the case of decisions about
a private association's internal structure. Occasionally the a-
nalysis will point directly to individuals, as in the case of suffrage.
At times, although the articulation of group rights will help in the
initial identification of where a power of choice should be located,
a focus on individual rights will ultimately carry the analysis a
step further, as the case of abortion will illustrate.145
of two equally logical responses. The other would be for the Court to hold that
the Constitution itself settles the precise conditions under which abortion is per-
missible. But the problems with any such solution seem insurmountable. First, it
would demand substantial loosening of the state action requirement for the Court
to hold that the Constitution either compels or forbids the private taking of a
fetal life without any affirmative involvement by the state. But see 410 U.S. at 157
& 157-58 n.54. Second, even if the state action problem were overcome, and even
if one could properly regard the fetus from the beginning of pregnancy as a
"person" within the meaning of the fourteenth amendment, see 410 U.S. at 157,
all that would follow is that "one right granted special protection by the Four-
teenth Amendment was in conflict with what the Court felt was another; it would
not tell us which must prevail." Ely 926 n.48; see note 86 supra.
One context in which it might nonetheless be constitutionally relevant to decide
whether a fetus is a "person" for fourteenth amendment purposes would be an
equal protection challenge arguing that, by outlawing infanticide but not abortion,
a state deprives fetuses of the equal protection of its laws, protection to which
only "persons" are entitled under the fourteenth amendment. See, e.g., Louisell &
Noonan 246-47. As to nonviable fetuses, the state's response would presumably
be that, even if they were deemed to be persons, there are compelling justifications
for giving them less protection than infants; among other things, their de-
struction can be prevented only at the cost of a vastly greater imposition on other
persons (i.e., the women who carry them) than is required for the protection of
infants. Cj. Thomson, supra note 86. With respect to viable fetuses, however, no
parallel distinction would be available. See note 24 supra. But see note 118 supra.
145 The establishment clause doctrine developed in the preceding section does
not fully resolve the allocation problem at this level since neither logic nor ex-
perience strongly suggests that the legislative consideration of how to allocate
private decisional roles with respect to abortion would be pervaded by intrinsically
religious controversy of the fort that arises when the basic permissibility of abortion
is considered. Cf. note 182 infra.
Moreover, some possible decisional arrangements may arise without any affirm-
ative involvement whatsoever by the state in the allocation of roles and hence will
fall outside the reach of constitutional limitations on governmental action, although
others will require such involvement and will thus be subject to whatever limita-
327
34 HARVARD LAW REVIEW [Vol. 87:1
i. Associational Integrity: The Role of the Family. — The
most promising source of relevant doctrine in this context is the
first amendment. The rights secured by its several guarantees
are sometimes assimilated to an atomistic conception of rights-
holders as "independent centers of consciousness, each pursuing
its own gratification and confronting the others as beings stand-
ing-over-against the self." 14,i But just as rights of privacy can
be understood as contexts for intimacy and sharing rather than
as charters of isolation,147 so too a central mission of the first
amendment can be perceived as the fostering of communities and
associations characterized by shared understandings and values.
Although the amendment speaks of "assembly" rather than "as-
sociation," the Court has long regarded the first amendment and
its fourteenth amendment due process embodiment as protecting
from governmental intrusion the integrity and vitality of human
association generally.148
No doubt one of the most basic forms of human association in
our society is the family, and the idea of "family" as the most
powerful and intimate center of human feeling and trust runs
through a long series of familiar constitutional decisions. The
tions the Constitution is held to impose upon the permissible range of role alloca-
tions in this area.
For example, if the medical profession were to arrive at a universal under-
standing that it is unethical to accept money in return for performing an abortion,
so that the only abortions would be those that a doctor wished to perform as a
"public service," current doctrines of state action might well fail to make the state
responsible for the resulting allocation of decisional power even if a state agency
with the statutory authority to do otherwise had expressly refused to overturn the
medical policy described. Cf. Columbia Broadcasting Sys., Inc. v. Democratic Xat'l
Comm., 93 S. Ct. 2080, 2095 (1973), noted p. 175 infra. But see Public Util.
Comm'n v. Pollak, 343 U.S. 451 (1952). On the other hand, if a woman seeks an
abortion that a licensed physician would have given her but for the interposition
of a state rule conferring a veto power upon some other person or institution, it
seems clear under current doctrine that the state's action in enforcing or threatening
to enforce the rule would be deemed responsible for denial of the abortion. Cf.
Shelly v. Kraemer, 334 U.S. 1 (1948).
146 R. Wolff, Poverty of Liberalism 142 (1968).
147 Compare C. Fried, An Anatomy of Values 137-52 d97o), with Miller,
Privacy in the Corporate State, 22 J. Pub. L. 3 (1973)-
148 See, e.g., Healy v. James, 408 U.S. 169 (1972); BRT v. Virginia ex rel.
Virginia State Bar, 377 U.S. 1, 5-6 (1964) ! NAACP v. Button, 371 U.S. 415. 429-31
(1963) ; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958). However,
for fragmentary indications that the Court might limit special associational pro-
tections to relatively traditional human groupings, see Wisconsin v. Yoder, 406
U.S. 205, 215-16, 235 (1972); Griswold v. Connecticut, 381 U.S. 479. 486 (1965)-
For hints that less conventional living arrangements might be equally protected,
see United States Dep't of Agriculture v. Moreno, 93 S. Ct. 2821, 2826 & n.7,
2828-31 (1973), discussed at note 223 infra; Eisenstadt v. Baird, 405 U.S. 438, 453
(1972).
149
328
I973] THE SUPREME COURT — FOREWORD 35
Court has insisted that parents have the right, free from state in
terference, to enable their children to learn a foreign language;"
to send their children to a private school;150 or to withdraw them
from school altogether for religious reasons after they have ac-
quired a basic education 151 — thus affirming repeatedly a "pri-
vate realm of family life which the state cannot enter." 152 The
central place of marriage in our constitutional scheme has like-
wise been stressed — from the Court's emphasis on marital pri-
vacy 153 and its holding that due process and equal protection
both preclude a state prohibition against interracial marriage,154
to its conclusion that the marital relationship is so basic that the
state cannot deny a divorce to a person who is unable to afford
the required court fees.155
But it is difficult to see lsa
how recognition can be given to the rights previously accorded
to home establishment, rearing and education of children,' with-
out acknowledging the impressive sociological, economic and
educational effect that family size has upon these considerations.
A decision to bear a child [and] hence to add to the family unit,
inevitably affects all facets of family life and each and every
member of the family.
Particularly if one views "rights" as elements of human roles
and relations,157 the right "to determine the scope, dimension and
extent of [one's] family unit" 158 — a family's knowledge that it
is empowered to settle its own composition 159 — seems altogether
149 Meyer v. Nebraska, 262 U.S. 390 (1923).
150 Pierce v. Society of Sisters, 268 U.S. 510 (1925).
151 Wisconsin v. Yoder, 406 U.S. 205 (1972).
152 Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
153Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
154 Loving v. Virginia, 388 U.S. 1,12 (1967).
55 Boddie v. Connecticut, 401 U.S. 371 (1971), discussed at pp. 45-46 infra.
S"YWCA v. Kugler, 342 F. Supp. 1048, 1081 (D.N.J. 1972) (Garth, J.,
concurring in part and dissenting in part).
157 See Tribe, Policy Science, supra note 138, at 85-93.
58YWCA v. Kugler, 342 F. Supp. 1048, 1081 (D.N.J. 1972) (Garth, J., con-
curring in part and dissenting in part).
59 The word "composition" is chosen deliberately, for any notion that the
only associational right of the family is a right to determine its own size without
regard to the major characteristics of its members, see Louisell & Noonan 234-35 ;
Stone, Abortion and the Supreme Court: What Now?, in Modern Medicine, Apr.
30, 1973. at 32, 37, seems questionable. In this connection, thinking in "freedom
of association" terms may be illuminating: the role of choosing one's associates
implies some voice in deciding who they are as well as how many of them one
will have. Just so, the family's capacity to define itself as a group could be greatly
eroded by having to raise certain severely disabled babies, perhaps causing exist-
ing children to be neglected or future children to be precluded altogether. Until
pregnancy has advanced so far that the state itself can permissibly decide to
329
36 HARVARD LAW REVIEW [Vol. 87:1
indispensable.100 This right to family self-definition is on its face
incompatible with conferring upon any outsider a decisional role
in the abortion choice.161
As with other first amendment rights and roles, however, this
one may be compromised by compelling justifications for allocat-
ing the role in question in a different way.102 But, as I have tried
protect the fetus from abortion, a concern for the family's associational integrity
thus cannot be limited to considerations of size.
160 See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). The Court may have
had in mind an associational concept something like the one developed here when
it sought to distinguish the commercial dissemination of obscenity to consenting
adults, which it held essentially unprotected under the first and fourteenth amend-
ments, from the activities protected by Roe and by Griswold v. Connecticut, 381
U.S. 479 (1965). As the Court put it in Paris Adult Theatre I v. Slaton, 93 S. Ct.
2628, 2640 n.13 (1973) (emphasis added), "the constitutionally protected privacy
of family, marriage, motherhood, procreation, and child rearing is . . . concerned
with . . . a protected intimate relationship . . . [and] extends to the doctor's office,
the hospital, the hotel room, or as otherwise required to safeguard the right to
intimacy involved."
An emphasis on intimacy would seem to imply that the relevant family is the
one in which the woman seeking an abortion has the role of mother, wife, or lover
rather than the one in which she has the role of child. Among the questions left
open in Roe, however, was whether a parent can be empowered to prevent an
abortion requested by an unmarried minor child. See 410 U.S. at 165 n.67. For
a negative answer relying on statutory grounds, see Ballard v. Anderson, 4 Cal. 3d
873, 484 P.2d 1345, 95 Cal. Rptr. 1 (197O (en banc); for a similar answer
grounded in due process, see Coe v. Gerstein, Civil No. 72-1842 (S.D. Fla., Aug.
9> 1973) (state cannot delegate to parents or husbands an authority it does not
possess). I would hope that, in ultimately resolving both this issue and its con-
verse— whether a parent can force abortion upon an unmarried minor child, see
In re Smith, 16 Md. App. 209, 295 A.2d 238 (Md. Ct. Spec. App. 1972)— the
Court will display more sensitivity to the independent rights of the child than is
suggested by Meyer v. Nebraska, 262 U.S. 390 (1923), or Pierce v. Society of
Sisters, 268 U.S. 510, 534-35 (1925) (stressing parents' interests while conspicu-
ously overlooking the claimed rights of the children involved, see id. at 515, 518,
532). See Wisconsin v. Yoder, 406 U.S. 205, 245-46 (Douglas, J., dissenting).
161 To suppose that contraception by itself can preserve the right to family self-
definition, see Louisell & Noonan 234-35; Cf- Stone, supra note i59> at 36, assumes
that contraception efforts never fail and overlooks the potential relevance of such
changed family circumstances as separation, illness, and economic collapse during
pregnancy. Moreover, to suppose that giving up a child for adoption can save a
family from unwanted parenthood ignores the cultural and psychological pressures
that make it difficult to abandon one's offspring as well as the legal constraints
society imposes upon such a choice. Thus, to say that an outsider's veto over a
family's abortion choices would not affect its capacity for self-definition over-
looks the realities both before pregnancy begins and after it ends.
162 Indeed, it would have been possible to begin the role analysis by observing
that interference with a family's abortion choices infringes upon associational
rights in a manner requiring compelling justification. Cf. note 83 supra. Such a
justification would have been found in the avoidance of infanticide. But the
necessity of defining infanticide would have posed problems under the entangle-
ment doctrine developed above, until the point of viability provided a secular
330
1973] THE SUPREME COURT — FOREWORD 37
to show, the state itself — for reasons independent of the family's
rights of association — cannot constitutionally control the pre-
viability abortion choice. Thus, in order to be legitimate in this
context, any argument in favor of conferring veto power on some-
one outside the family must be based not on any substantive con-
cern about which pregnancies should be terminated, but on role-
specific reasons for preferring a decisionmaker outside the family
to one within.163 But the only imaginable reasons for such a
preference would entail a belief that the family is too profoundly
affected by the choice, or too inexpert in the factors relevant to
a sound judgment, to be as capable a decisionmaker as a less
personally interested and more expert outsider would be.
To be sure, there is much in the Court's opinions in Roe v.
Wade and Doe v. Bolton that can be read to suggest a desire to
make the ultimate decision that of a medical expert.164 And much
of the early pressure for liberalized abortion laws was grounded
in a desire "to preserve the dignity, rights, and freedom of action
of the medical profession." 1G5 But any notion that the doctor, or
some other disinterested expert, is in a better position than the
woman and her family, by virtue of such disinterest and expertise,
not only to provide advice and consultation but also to make the
final choice with respect to whether the family should have and
raise a child,106 amounts to nothing more than a denial of the
underlying first amendment premise that groups should ordinarily
have the role of making their own ultimate associational choices,
informed and perhaps influenced, but not forced, by others.167
touchstone. In general, pursuing the model of roles along several different paths,
and testing the consistency of the results derived, should furnish a partial check
against the model's erroneous application.
83 After viability, the state's power to prevent fetal destruction, see pp. 28-29
supra, could presumably be delegated subject to appropriate restrictions. See p. 32
& note 142 supra, p. 40 & note 178 infra.
04 Justice Blackmun's opinion for the Court in Roe flatly states that until
the end of the first trimester "the abortion decision and its effectuation must be
left to the medical judgment of the pregnant woman's attending physician," 410
U.S. at 164, and insists that, up to the point of viability, "the abortion decision in
all its aspects is inherently, and primarily, a medical decision." Id. at 166. Writing
for the Court in Doe, Justice Blackmun likewise places the medical practitioner at
the center of his opinion. There, the Court holds that a requirement of com-
mittee approval not only is "unduly restrictive of the patient's rights and needs,"
id. at 198, but also impermissibly limits 'the physician's right to administer" the
care his best judgment directs, id. at 197, and that "required acquiescence by co-
practitioners has no rational connection with the patient's needs and unduly in-
fringes on the physician's right to practice." Id. at 199.
"5 Finnis, Three Schemes of Regulation, in The Morality of Abortion 172,
188 (J. Noonan ed. 1970).
168 Cf. notes 128, 161 supra.
87 There may, of course, be rare instances in which the doctor's view (1) rests
331
38 HARVARD LAW REVIEW [Vol. 87:1
There seems, therefore, to be no escape from the conclusion
that, as to previability abortions, the associational integrity pro-
tected by the first and fourteenth amendments precludes forcing
an unwanted child upon a family on the ground that the doctor,
or anyone else, "knows best." 1C8
2. Individual Autonomy: The Role of the Woman. — Unlike
the opinion of the Court, that of Justice Stewart unambiguously
identifies the right protected by Roe as "the right of a woman to
decide whether or not to terminate her pregnancy." 109 In some
instances, the conclusion that the right belongs within the family
takes the analysis as far as Justice Stewart's opinion would go.170
But both the Court's opinion in Roe and the analysis thus far
pursued in this Foreword leave open the question of whose wish
must prevail if there is disagreement within the family.171 Even
here, the Constitution provides relevant guidance.
on a reasonable and truly expert medical judgment to the effect that (2) abortion
would cause the woman serious physiological or psychological damage (3) sub-
stantially exceeding the damage likely to be inflicted by the coerced carrying,
delivery, and upbringing of an unwanted child, where (4) the woman cannot be
persuaded to follow the doctor's advice, and in which (5) the state cannot itself
proscribe abortion inasmuch as the fetus is not yet viable, but where (6) the
doctor would, if empowered to do so, override the wishes of the woman and her
family. But to allocate veto power to doctors in order to accommodate this
remarkably unlikely combination of circumstances would be to confer upon the
medical profession a penumbral authority so wide and unaccountable, and so
inherently unconfinable to the precise conditions thought to warrant it, as to
engulf the family's rights of association in return for the most marginal of gains.
Cf. p. 30 supra.
168 Nor should the Court's decision to cast Roe and Doe in medico-technocratic
terms be thought to undermine a reading of those cases as ensuring that the
abortion decision is to be an intrafamily one. Given the Court's holding that a
state cannot require first-trimester abortions to be performed in a hospital, Doe v.
Bolton, 410 U.S. 179, 19s (1973), and given the reality that the freestanding
abortion clinics thereby authorized will almost surely regard the family's or
woman's own decision as dispositive, see Stone, supra note 159, at 36, the Court
is unlikely to have intended any real medical veto over the choice to abort.
Moreover, the Court makes clear that even the "medical judgment" called for
"may 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." Doe
v. Bolton, supra, at 192.
Perhaps the Court simply believed that the public acceptability of its result
would be enhanced if it couched the abortion holding in medical rather than
ethical terms. Or perhaps the language chosen reflects little beyond the medical
interests and associations of particular Justices. In no event does the medical
terminology alter the substantive result.
169 410 U.S. at 170.
170 Examples would include those cases in which the woman has no family, or
where no one in her family will take issue with her decision, or where the family
comes to a choice by a group process that arrives at a truly shared position.
171 See 410 U.S. at 165 n.67.
332
THE SUPREME COURT — FOREWORD 39
The central objection to conferring a veto power over an abor-
tion that a woman seeks and a physician is willing to perform, if
one is not to rely on any supposed sanctity of the doctor-patient
relationship, must surely be the impact of such action in depriving
the woman of effective control over reproduction and, in many
over her life as a whole. The Presidential Task Force of
the Citizens Advisory Council on the Status of Women reached a
conclusion shared by many when it said that "the right of a woman
to determine her own reproductive life is a basic human right." m
But although courts have in extreme situations affirmed the con-
stitutional fundamentality of such reproductive autonomy,173 they
have also sustained severe intrusions into that sphere.174 More-
over, unlike the protection for the autonomy of childraising deci-
sions as a facet of first amendment family association, any special
solicitude for a general "right to do with one's body as one
pleases," 175 or even for a more limited "right to control one's
reproductive processes," would be uncomfortably reminiscent of
immutable natural-law conceptions.176
Rather than appealing to the immutable order of the world,
the analysis I propose would ask whether the state, itself ex-
cluded from a decisional role in previability abortions by the
prohibition against religious entanglement, can permissibly as-
sign that role to a family member other than the woman herself.
The argument in favor of an affirmative answer with which
172 Task Force Report on Family Law and Policy 31 (1968).
173 See, e.g., Skinner v. Oklahoma, 316 U.S. 535 (1942) (invalidating under the
equal protection clause a state statute which sterilized larcenists while imprisoning
embezzlers).
174 See, e.g., Buck v. Bell, 274 U.S. 200, 207 (1927) (upholding compulsory
sterilization allegedly to prevent "future generations of imbeciles"). See also
Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson, 42 N.J. 421, 201 A. 2d
537, cert, denied, 377 U.S. 985 (1964) (upholding compulsory blood transfusion
to fetus over mother's religious objection).
175 410 U.S. at 154.
78 It is true that the women's rights movement drew initially upon trends in
natural law thought, see, e.g., B. Wright, American Interpretations of Natural
Law 176-79 (1931), but the dangers of wedding those two intellectual currents are
manifest. For example, in a decision sustaining a state ban on women lawyers,
Justice Bradley expressed the view that "the noble and benign offices of wife and
mother" were rooted in the "constitution of the family organization, which is
founded in the divine ordinance, as well as in the nature of things . . . ." Brad-
well v. State, 83 U.S. (16 Wall.) 130, 141 (1873) (concurring opinion). See also
In re Goodell, 39 Wis. 232, 245 (1875). It was as "a result of notions such as
these" that "our statute books . . . became laden with gross, stereotyped dis-
tinctions between the sexes," with the consequence that "throughout much of the
19th century the position of women in our society was in many respects com-
parable to that of blacks under the pre-Civil War slave codes." Frontiero v.
Richardson, 411 U.S. 677, 685 (1973) (Brennan, J., joined by Douglas, White,
and Marshall, JJ.), noted p. 116 infra.
333
40 HARVARD LAW REVIEW [Vul. 87:1
a court is most likely to be confronted in the foreseeable future
would claim a man's "right" to insist that the woman he has
impregnated not only carry to term and deliver, but also raise,
his child. But granting a man the power to force someone to carry
and care for his child despite her unwillingness to use her body
and life for that purpose would raise the specter of the legally
enforced physical and psychological domination of one group in
society by another. A woman in contemporary America who is
coerced into submitting herself, at the insistence of a man em-
powered by law to control her choice, to the pains and anxieties of
carrying, delivering, and nurturing a child she did not wish to con-
ceive or does not want to bear and raise, is entitled to believe that
more than a play on words has come to link her forced labor with
the concept of involuntary servitude. It would, of course, be far-
fetched to suggest that the thirteenth amendment's prohibition of
"slavery" and "involuntary servitude" confers upon women a
right to abortion so as to avoid compelled motherhood. But it
would be equally insensitive to the deepest meaning of that char-
ter of emancipation completely to deny its relevance as a source
of guidance in assessing an allocation of roles that embodies the
coercive domination of one group by another.177
To give men the unreviewable power to sentence women to
childbearing and childraising against their will is to delegate a
sweeping and unaccountable authority over the lives of others.178
177 The thirteenth amendment's relevance is underscored by the historical
parallel between the subjugation of women and the institution of slavery. See
note 176 supra.
178 Cf. People v. Belous, 71 Cal. 2d 954, 972-73, 458 P. 2d 194, 206, 80 Cal.
Rptr. 3S4, 366 (1969), cert, denied, 397 U.S. 915 (1970) (abortion statute imper-
missibly delegated authority to physician). See generally McGautha v. California,
402 U.S. 183, 252 (1971) (Brennan, J., dissenting) (if a state cannot success-
fully articulate policies as to when capital punishment should apply, it is forbidden
to delegate the decision to a jury's unguided whim). See also Furman v. Georgia,
408 U.S. 238 (1972) (discretionary imposition of death penalty violates eighth
and fourteenth amendments).
If it is said in response that Roe in effect delegates to each pregnant woman an
unaccountable power over the life or death of the fetus she carries, cf. Ely 934-35
("compared with the unborn, [women] do not" deserve special judicial protection),
the reply must be that this argument has significant force only on the premise that
the fetus in early pregnancy is entitled to treatment as a human being — a
premise which, because of religious entanglement, cannot constitutionally serve as
the predicate for any governmental policy or choice.
Perhaps concerned with the dangers of unaccountable power over women's
lives, the Court in the abortion opinions is at pains to emphasize that the physician
to whom responsibility is entrusted by Doe is accountable to his patient for her
"physical and mental welfare," 410 U.S. at 196, and that if the physician fails to
serve her medical needs "professional censure or deprivation of his license are avail-
able remedies." Id. at 199. See also Roe v. Wade, 410 U.S. 113, 166 (1973)- More
realistically, perhaps, the woman is assured attention to her needs by the practical
334
,973] THE SUPREME COURT — FOREWORD 41
Any such allocation of roles would operate to the serious detriment
of women as a class, given the multitude of ways in which un-
wanted pregnancy and unwanted children burden the participation
of women as equals in society. Even a woman who is not pregnant
would inevitably be affected by her knowledge of the power rela-
tions thereby created.179
Quite a different argument would be presented if the prospec-
tive father were truly to undertake the burdens of parenthood
himself rather than expecting the unwilling mother to bear all or
most of those burdens. In such a case, the state might wish to
confer a veto over abortion on the theory that the man's right to
raise his own child is important enough to justify the burdens
of coerced pregnancy for the woman. Although the prospective
father's claim should almost certainly be subordinated to the
woman's decision to terminate her pregnancy if they are not mar-
ried,180 resolution of the issue raised if the parties are already
married or otherwise committed to one another in a long term
relationship will be complicated by arguments as to the alternative
of adopting a child, the expectations with which a state may pre-
sume that its citizens enter upon marriage, and the obligations it
may attach to the marital relationship.181
fact that the real decision, so long as only an agreeable doctor is required, will be
her own. NTo comparable assurance could be offered were the power of decision
delegable by state law to the woman's parents, to her husband, or to the prospec-
tive father.
179 For a classic discussion of social roles, including the patterns of expecta-
tions and interests implicit in their structure, see R. Dahrendorf, Homo Socio-
logies: On the History, Significance, and Limits of the Category of Social Role,
in Essays in the Theory of Society 19, 36, 79-82 (1968). Had the Court con-
ceived the question before it in role-allocation terms, it might not have dismissed
so readily the complaints of those plaintiffs who indicated that they were presently
injured by the Texas law despite their lack of current pregnancy, see 410 U.S. at
127-29, and it might at least have recognized the continuing effect on roles as a
potential basis for its finding of nonmootness as to certain other plaintiffs. Id. at
125.
For an expression of skepticism about whether the Court's decisions in Roe and
Doe will in fact transfer real decisionmaking power from those who now hold it,
see Stone, supra note 159, at 37. But cf. R. Dahrendorf, supra, at 48-51; Cox,
The Supreme Court, 1Q65 Term — Foreword: Constitutional Adjudication and the
Promotion of Human Rights, 80 Harv. L. Rev. 91, 97 & n.41 (1966).
180 See Jones v. Smith, 278 So. 2d 339 (Fla. App. 1973) (putative potential
father has no right to restrain woman from terminating first-trimester pregnancy
resulting from their cohabitation notwithstanding his expressed desire to marry
the woman and to assume all obligations for care and support of the unborn child).
But cf. Stanley v. Illinois, 405 U.S. 645 (1972) (invalidating presumption that all
unwed fathers are unfit parents).
Hl Although a Canadian court has enjoined an abortion at the request of a
husband, see NY. Times, Jan. 29, 1972, at 4, col. 4, at least two courts in the
1 States have ruled against the husband's veto. See Coe v. Gerstein, Civil
-1842 (S.D. Fla., Aug. 9, 1973); Coe v. District of Columbia Gen. Hosp.,
335
42 HARVARD LAW REVIEW [Vol. 87:1
D. The Required Role of the State: Ensuring Minimal Access
Vastly more important as a practical matter than the pos-
sibility of a father's veto 1S2 is the economic issue: what of women
too poor to exercise the abortion choices constitutionally entrusted
to them by Roe and Doe? The Court's plain concern in cases like
Roe and Griswold v. Connecticut 1S3 has not been with affirmative
access but with freedom from governmental intrusion.11*4 Just as
the Court in Doe would have accepted "no argument that because
the wealthy can afford better physicians, the poor should have
non-physicians made available to them," lsr> it would certainly
have rejected an argument that the state must remove the dollar
sign from medicine by making the quality of care received in-
dependent of financial resources. Whatever one may think of
fully socialized medicine, the Burger Court will not hold that it is
constitutionally required.
The role-allocation concept developed in this Foreword en-
ables one to accept this conclusion but to argue nonetheless that
minimal access to abortion might be constitutionally guaranteed.
Perhaps the best way to make the argument is to begin with the
case that might be regarded as its antithesis: San Antonio Inde-
pendent School District v. Rodriguez ,1SG which sustained against
equal protection attack public school finance schemes using local
property taxation as a base and thereby forcing districts with lower
property values to make more effort than others in order to raise
the same amount of money per pupil for educational purposes.
The Rodriguez Court concluded that education is not a "fun-
damental right or liberty" for purposes of subjecting its distribu-
tion by the state to strict judicial scrutiny under the equal protec-
No. 1477-71 (D.D.C., June 5, 1972), noted in Boston Globe, June 6, 1972, at 5,
col. 1. A state might nonetheless attempt to codify the childbearing obligations
attendant upon marriage unless the parties specify otherwise. Exploring the many
issues involved in giving prospective fathers a veto over previability abortions is
beyond the scope of this Foreword. After viability, however, even a state which
chooses not to forbid abortion altogether could presumably confer upon potential
fathers the power to prevent fetal destruction, though not fetal separation as such.
Cf. p. 29 supra.
182 The pressure to enact and enforce laws in this area comes principally from
groups who regard fetal life as sacred, not those who are concerned with the values
of fatherhood. But see Pastoral Message of the Administrative Committee, Na-
tional Conference of Catholic Bishops, Feb. 13, 1973, in 19 Cath. Lawyer 29, 31
(1973). The nature of intrafamily decisionmaking may in any event be quite
impervious in all but the rarest cases to formal rules about who may decide which
questions.
183 381 U.S. 479 O965).
184 See note 83 supra.
185 410 U.S. at 201.
188 411 U.S. 1 (1973), noted p. 105 infra.
336
1973] THE SUPREME COURT — FOREWORD 43
tion clause,1ST because there is no "right to education explicitly or
implicitly guaranteed by the Constitution." 18S Purporting to dis-
tinguish Roe and related cases, the Court said that "the right of
procreation," unlike education, "is among the rights of personal
privacy protected under the Constitution." 189 Yet the Court in
Roe had cited Pierce v. Society of Sisters 190 and Meyer v. Ne-
braska m for its conclusion that the "right of personal privacy
. . . has some extension to activities relating to . . . child rear-
ing and education," 192 a conclusion on which the Roe Court ex-
panded in affirming the woman's right to decide "whether or not
to terminate her pregnancy." 193 Did the Rodriguez Court silently
overrule Meyer and Pierce shortly after citing them with ap-
proval? 194
The answer, I think, is not hard to find. Education and pro-
creation are both "fundamental" in the sense that the Constitu-
tion severely limits the power of government to usurp the family's
central decisionmaking role with respect to either. Nothing in
Rodriguez contradicts that view. On the contrary, the Court
praises the values of maintaining a link between education and
the home so as to allow parental "control over decisions vitally
affecting the education of one's children . . . ." 195 Indeed, it is
the value of maintaining such parental control that the Court
identifies as the "legitimate state purpose" furthered by the local
tax scheme which Rodriguez upholds.190
But the fundamentality of both education and procreation
as a matter of role-allocation between family and state need not
imply their fundamentality for purposes of role-allocation between
legislature and court — that is, for purposes of deciding how
"strictly" the judiciary should scrutinize the legislature's perform-
ance of a concededly appropriate role. Since the legitimacy of
legislative decisionmaking with respect to the financing of public
187 41 1 U.S. at 29-44.
188 Id. at 33-34-
189 Id. at 34 n.76.
190 268 U.S. 510 (1925).
191 262 U.S. 390 (1923).
92 410 U.S. at 152-53- See atso United States v. Orito, 93 S. Ct. 2674, 2677
(1973)-
193 410 U.S. at 153.
194 See 411 U.S. at 30.
95 Id. at 49, quoting Wright v. Council of the City of Emporia, 407 U.S. 451,
469 (1972).
"fl4ii U.S. at 49-50, 54-55. Justice Powell's separate opinion in Keyes v.
School Dist., 93 S. Ct. 2686, 2715-17 (1973), is even more explicit in stressing the
centrality of neighborhood school systems to "the interest of the parent in the
enhanced parent-school and parent-child communication allowed by the neighbor-
hood unit . . . ."
337
44 HARVARD LAW REVIEW [Vol. 87:1
school education was not questioned in Rodriguez, the Court was
being asked to supervise the performance of a role undeniably
belonging to the state — a request it predictably construed as
seeking "judicial intrusion into otherwise legitimate state activ-
ities." 197 Obviously, the constitutional considerations favoring
the removal of a decisional role from government and its location
in the private sphere — such concerns as religious disentangle-
ment and associational integrity — may have nothing whatsoever
to do with the issue of whether an area of decision related to that
role should be partially shifted from state legislatures to the
federal judiciary by the invocation of "strict review" in the con-
text of an equal protection claim. The Rodriguez Court's attempt
to distinguish Roe and Skinner v. Oklahoma 198 because they both
involved procreation rather than education 199 was therefore mis-
guided; they were distinguishable because they involved the ques-
tion of who should make reproductive decisions, not the question
of what criteria should be used in making and reviewing properly
governmental decisions about the distribution of public resources
related to sexual reproduction. The distinction is important be-
cause the "fundamental" nature of a role in the sense of its con-
stitutional immunity from governmental interference does not sup-
port strict judicial scrutiny of every governmental program which
distributes benefits relating to that role.200
Thus, the role-allocation arguments advanced in this Fore-
word would not support equal protection strict scrutiny of vary-
ing support levels built into state financing schemes for publicly
funded medical procedures which include abortions. But it need
not follow that the Constitution guarantees indigent women.no
affirmative access whatsoever to abortions for which they are un-
able to pay, assuming that affirmative governmental obligations
can ever be justified.
There have, of course, been theoretical attempts to provide
such justification.201- The central problem to be solved by any such
197 411 U.S. at 36.
1983i6 U.S. S3S (1942); see note 173 supra.
199
'411 U.S. at 33-3*4. See also Lee, supra note 25, at 476-77-
200 See p. 50 & note 227 infra. For an analysis which assumes that one can
define a single set of fundamental rights, valid for all constitutional purposes, see
Goodpaster, supra note 7, at SIS~l6-
201 See, e.g., Michelman, supra note 75- See also Black, supra note 77; Karst
& Horowitz, Reitman v. Mulkey: A Telophase of Substantive Equal Protection,
1967 Sup. Ct. Rev. 39; Sager, Tight Little Islands: Exclusionary Zoning, Equal
Protection, and the Indigent, 21 Stan. L. Rev. 767 (1969) •
And even in Rodriguez, the Court leaves open the possibility that "some identi-
fiable quantum of education" might be held "a constitutionally protected prerequi-
site to the meaningful exercise" of such other rights as the "rights to speak and to
vote." 411 U.S. at 36. Whether the Rodriguez Court was right to conclude that
338
i973] THE SUPREME COURT — FOREWORD 45
attempt is to find sources of constitutional guidance in answer to
the question: "why abortion and not golf?" 202 Why should some
needs be singled out as justifying a constitutional demand for
positive state action while others are relegated to governmental
discretion and the impersonal verdict of the market?
Some help in answering this question may be found in the
concept of role-allocation. For although it may be possible to
derive a structure of affirmative obligation from purely individu-
alistic moral premises,203 the idea that constitutional rights re-
flect protected social roles 204 rather than merely define "holes" in
the fabric of state power seems a particularly suitable framework
in which to articulate as obligatory those affirmative roles of
government without which the social roles protected by limits on
public authority could be emptied of significant content and re-
duced to the kinds of abstract liberty that courts enshrined in the
Lochner era of the idealized minimal state.
Having concluded that government cannot usurp the woman's
role of personal decision with respect to early abortion, one might
ultimately be able to conclude that government must assume,
directly or indirectly, the affirmative role of providing access to
the means of preventing unwanted pregnancy and of terminating
it if it occurs.205 And the result of thus completing the role-allo-
cation conception, by extending it to include obligatory as well as
forbidden roles for the state, would be to make the individual,
viewed as a social being, the repository of affirmative as well as
negative freedoms.206
That the drawing of such a link between forbidden and man-
datory governmental roles is not wholly alien to the Court's juris-
prudence emerges from a consideration of several recent decisions
bearing on the marital relationship. Having held that the selec-
tion of a marital partner 207 and the shaping of marital inti-
the required minimum (if any) had been met in the case before it is a question
I do not consider here.
202 Cf. Michelman, supra note 75, at 59.
""See id. at 9, 15-16; cf. Nagel, Rawls on Justice, 82 Phil. Rev. 220, 227-28
(1973).
04 By "protected social roles" I mean in this context not simply roles barred to
government (for example, by the establishment clause), but roles as to which there
exist affirmative grounds (for example, freedom of association) for entrusting them
to a particular category of individuals or groups.
The idea of an affirmative duty as part of a "role" obviously requires a
conception of roles broad enough to encompass obligations as well as powers of
choice. For such a conception, see R. Dahrendorf, supra note 179, at 36-37, 39-42
& n.is.
100 See generally I. Berlin, Two Concepts of Liberty, in Four Essays on
Liberty 118 (1969).
207 Loving v. Virginia, 388 U.S. 1, 12 (1967).
339
46 HARVARD LAW REVIEW [Vol. 87:1
macies 20S are essential elements of a decisionmaking role as to
which governmental intrusion is constitutionally circumscribed,
the Court concluded in Boddie v. Connecticut 209 that government
cannot withhold, from those too poor to afford the filing fees for
a divorce, the means of dissolving a marital relationship in ac-
cord with whatever substantive controls government may be em-
powered to impose on such dissolution. It is true that the Court
in Boddie also relied upon the state's monopoly over the lawful
means of dissolving a marriage, a circumstance which meant that
state denial of access to a divorce court would compel the con-
tinued marriage of the persons involved.210 But the state's active
involvement in the resulting plight of the individuals thus dis-
abled may not be essential to the Court's conclusion. Indeed, in
treating as vital to its holding "the basic position of the marriage
relationship in this society's hierarchy of values" 2n and the
importance of divorce as an "adjustment of a fundamental human
relationship," 212 the Boddie Court gave credence to the view that
inability to terminate a fundamental relationship might repre-
sent a constitutionally cognizable evil to some degree independent
of the state's responsibility for causing the situation.213
208Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965).
209 401 U.S. 371, 374 (WO.
210 Id. at 376.
211 Id. at 374-
212 Id. at 383.
213 Unlike the evil of being treated in a racially, sexually, or economically dis-
criminatory way, which is crucially affected by the degree to which the state itself
is actively involved in the stigmatizing decision, the evil of being disabled from
making choices constitutionally entrusted to the individual seems largely in-
dependent of the degree or character of affirmative state involvement. See
Michelman, supra note 75, at 11 ("If we can see and feel that the hardship is
poignant or the disadvantage dire, the government's noninvolvement then may
come not as relief but as reproach."). The Court's emphasis on the centrality
of marriage in its refusal to extend Boddie beyond marriage and divorce, Ortwein
v. Schwab, 410 U.S. 656 (1973) (administrative welfare termination) ; United States
v. Kras, 409 U.S. 434 (1973) (judicial discharge in bankruptcy), noted p. 57 infra,
nonetheless seems misplaced, for even if affirmative duties of governmental support
attach peculiarly to roles that are constitutionally protected against state interference,
there is no reason to suppose that access to courts for judicial redress of private
wrongs is any less important, or should be any less entitled to constitutional
protection, than access to courts for judicial enforcement of "constitutional rights."
Fundamentality of an interest for the purpose of private/public role-allocation,
and hence its enshrinement as a constitutional right entitling its holder both to
autonomy and to support with respect to its exercise, may rest heavily on a judg-
ment that certain choices ought not to be left to government's discretion (whether
because government is thought especially likely to abuse power in the designated
area, or because of feared religious entanglement, or for some other reason) , and may
import no judgment whatsoever that judicially vindicating legal protection for such
choices against private interference — or vindicating protection conferred by non-
340
i973] THE SUPREME COURT — FOREWORD 47
Were Boddie extended in the direction thus suggested, the
parallel with abortion would be most striking. For Roe recognized
in the decision whether to carry a fetus to term no less central an
aspect of constitutionally protected zones of personal and family
autonomy than is involved in the decision whether to prevent con-
ception or the decision whom to marry. And if government must
guarantee access to the means of terminating an undesired mar-
riage insofar as such termination is constitutionally protected,214
it is hard to see why it must not also guarantee access to the
means of terminating an unwanted pregnancy insofar as the
Constitution protects that choice.215
Before the Supreme Court's decision in Roe, a three-judge
federal court invalidated as unconstitutional New York's policy
of withholding Medicaid assistance for nontherapeutic abortions,
a policy that had been defended on the ground that elective ter-
mination of pregnancy is not "necessary and medically indicated
care." 216 The court concluded that New York's statutory legal-
constitutional law upon other choices against interference, private or public — is
less important, even to the constitutional scheme itself, than is judicial vindication
of protection constitutionally decreed. To suppose the contrary, see, e.g., Good-
paster, supra note 7, at 483 & n.o, is to make the same kind of error that is made
when one treats fundamentality for private/public role-allocation purposes as
implying fundamentality for legislative/judicial role-allocation purposes. See pp.
43-44 supra. See also note 229 infra.
214 Perhaps the obligation recognized by Boddie was dependent upon the
"state monopoly" factor insofar as Boddie extended to divorces the state allowed
but had no constitutional obligation to permit. It is only as applied to such divorces
as the state might be constitutionally obliged to allow that my argument requires
me to find a corresponding affirmative duty independent of state monopoly.
215 Although it is true that what the state must tolerate it is occasionally
forbidden to support, see, e.g., Committee for Pub. Educ. v. Nyquist, 93 S. Ct.
29SS (i973) (aid to parents of parochial school children violates establishment
clause) ; cf. Norwood v. Harrison, 93 S. Ct. 2804 (1973) (state aid to private segre-
gated academies violates equal protection) , the only plausible constitutional objection
to state funding of abortions would be the obvious religious one. But the obliga-
tion of religious neutrality, see Kurland, Of Church and State and the Supreme
Court, 29 U. Chi. L. Rev. i, 6 (1961), can hardly require government to avoid
supporting every action to which some religion objects, an avoidance which would
itself violate the establishment clause. See Epperson v. Arkansas, 393 U.S. 97
(1968), discussed note 103 supra. On the contrary, in the abortion context gov-
ernmental neutrality demands simply that public programs and policies treat
abortion as they would any other medical procedure equally important to the
patient. See Hathaway v. Worcester City Hosp., 475 F.2d 701 (1st Cir. 1973)
(Roe invalidates municipal hospital's refusal to perform any sterilizations) ; cf.
Doe v. Bellin Memorial Hosp., 479 F.2d 756 (7th Cir. 1973).
216 Klein v. Nassau County Medical Center, 347 F. Supp. 496, 497 (E.D.N.Y.
1972). The Supreme Court vacated the appeals of the institutional defendants in
Klein for further consideration in light of Roe and Doe but summarily affirmed in
the appeal taken by the guardian ad litem for the unborn, whose claim was that
Klein violated the rights of the fetus, see id. at 501. 93 S. Ct. 2747, 2748 (1973)-
341
48 HARVARD LAW REVIEW [Vol. 87:1
ization of early abortions deprived the state's authorities of any
legitimate basis for treating the abortion choice as a disfavored
one.217 The court also observed that the state's position may well
be deemed to infringe "a still more fundamental right" in its inter-
ference with "the pregnant woman's interest in freely determin-
ing whether or not to bear a child," 218 and, in any event, "would
deny indigent women the equal protection of the laws" inasmuch
as "[t]hey alone are subjected to State coercion to bear children
which they do not wish to bear" while women "able to afford the
medical cost . . . have complete freedom to make the choice in
the light of the manifold of considerations directly relevant to the
problem . . . ." 219 Although traditional equal protection analy-
sis would hardly support the court's conclusion that lawful elec-
tive abortions cannot be rationally distinguished from therapeutic
ones for purposes of state aid,220 a parallel conclusion might none-
theless follow from the basic due process-minimum protection
principle suggested by my reading of Boddie: that some degree of
affirmative governmental obligation extends to whatever services
are reasonably required for the performance of a constitutionally
protected role.221
Thus, even assuming that various institutional considerations,
perhaps including the eleventh amendment, would stand in the
way of direct enforcement of such an obligation by the federal
judiciary against a state unwilling to institute any program whatso-
ever to help meet the medical needs of the poor,222 no such diffi-
culties would prevent giving at least partial recognition to the
obligation (1) by judicially insisting that the need for an abor-
tion, within an existing governmental program of medical aid,
must be determined by women and their doctors; (2) by holding
that eligibility requirements under a governmental subsistence
program cannot be used for any purpose other than determining
need;223 and (3) by requiring that need be assessed on a particu-
217 347 F. Supp. at 500.
218 Id.
219 Id.
220 Applying a rationality test, see p. 44 supra, p. 50 & note 227 infra, one could
not ignore the important respects in which even lawful nontherapeutic abortions
differ from, for example, surgical operations required to save life or to avoid per-
manent physical disability.
221 The Klein court relied on Boddie only for the conclusion that the state
limitation on Medicaid singled out the indigent in a discriminatory way violative
of equal protection. 347 F. Supp. at 501.
222 Cf. Michelman, supra note 75. at 39.
223 In United States Dep't of Agriculture v. Moreno, 93 S. Ct. 2821 d973),
noted p. 125 infra, the Court held that Congress cannot, consistent with fifth
amendment due process, exclude from participation in the federal food stamp pro-
gram every household containing one or more "unrelated" persons. Although the
342
1973] THE SUPREME COURT — FOREWORD 49
larized basis rather than in accord with general rules of thumb.224
If the developing concept of minimum protection were thus
shaped so as to reflect an underlying governmental duty when-
ever failure to meet a need would preclude the exercise of a role
affirmatively entrusted to someone by the Constitution, then it
would appear to follow that no woman could be denied public
assistance for a lawful abortion which she says she cannot other-
wise obtain (providing such assistance is made available for other
medical services) unless it had been determined in an appropriate
Court seemed prepared to accept as "clearly legitimate" the "governmental interest
in minimizing fraud," 93 S. Ct. at 2826, it rejected as "wholly unsubstantiated"
the Government's arguments concerning the greater probability of fraud in un-
related households and the increased difficulty of detecting it in such households,
id., and said that, in any event, (1) other statutory provisions were specifically
aimed at the problem of food-stamp fraud, and (2) the statutory exclusion was
underinclusive in that unrelated persons with the financial means to do so could
alter their living arrangements and thereby escape the exclusion. Id. at 2827.
But these considerations typify the "strict review" the Court purported to be
avoiding, not the minimal requirement of "some rational connection" that the
Court continues to claim is its guide to decision in such cases, id. at 2825; see id.
at 2830 (Douglas, J., concurring); id. at 2831-32 (Rehnquist, J., dissenting), or
even the somewhat tightened requirement of Professor Gunther's "newer equal
protection." See Gunther 21, 24, 34-35. A more satisfactory justification for
Moreno would be a substantive due process insistence on making basic eligibility
criteria turn on need alone, cf. Ely, supra note 29, at 1224-28, requiring govern-
ment to use alternative mechanisms in order to control fraud and other abuses,
even if government retains substantial discretion in deciding how need is to be
measured. See Dandridge v. Williams, 397 U.S. 471 (1970).
224 In United States Dep't of Agriculture v. Murry, 93 S. Ct. 2832 (1973),
discussed at p. 128 n.22 infra, the Court invalidated a federal provision rendering
ineligible for food stamps any household containing a member over 18 years of age
who had been claimed as a tax dependent by a taxpayer not himself eligible for food
stamps. Despite the obviously tenuous character of the link between this eligibility
rule and either the household's need or the risk of fraud, calling the link "irrational,"
as Justice Douglas did for the majority, stretches the meaning of that concept
past the breaking point. Cf. United States Dep't of Agriculture v. Moreno, 93 S. Ct.
2821, 2830 (1973) (Douglas, J., concurring); Vlandis v. Kline, 93 S. Ct. 2230,
2242-44 (Rehnquist, J., dissenting, joined by Burger, C.J., and Douglas, J.). It
was plainly Congress' reliance on an "irrebuttable presumption often contrary to
fact," 93 S. Ct. at 2836, that troubled the Court; however closely Congress' rule
might approximate need as a statistical matter, denying food stamps to an in-
dividual "without any opportunity ... to prove present need denied . . . due
process of law." Id. at 2837 (Stewart, J., concurring) (footnote omitted). Since
Justice Rehnquist was obviously right to insist that Congress had enacted a sub-
stantive limitation rather than an evidentiary shortcut and was entitled to have
its law reviewed on that basis, id. at 2840-41 (dissenting opinion), one should treat
Murry — despite the Court's effort to make the decision appear purely procedural
— as a holding that, once government has set eligibility requirements which them-
selves express plausible conceptions of need, no one who meets those requirements
can be denied benefits under an existing program of support for basic subsistence
without a particularized determination that the person does not in fact need the
benefits in question. But see Dandridge v. Williams, 397 U.S. 471 (1970).
343
So HARVARD LAW REVIEW [Vol. 87:1
hearing that she could in fact obtain an abortion without govern-
mental help.225 For purposes of this Foreword, however, I need
not insist on so precise a formulation. It is enough, it seems to
me, to observe that the role-structuring form of substantive due
process appears capable of channeling minimum protection con-
cepts into fairly concrete affirmative protections as well as gener-
ating quite specific negative guarantees.
VI. Comparing Role-Allocation with
Alternative Models
It should be stressed that the role-allocation model of substan-
tive due process imports no general demand for strict judicial
supervision of all laws affecting an expanding list of "fundamental
interests." This due process model, unlike the "second-guessing"
variety that the Court in 1970 said had "long ago passed into
history," 226 asks the courts to establish the inner and outer
boundaries of governmental power — the areas of mandatory
action and of forbidden interference — but, within those function-
ally related boundaries, calls upon courts to review lawmaking
processes no more strictly than other considerations may re-
quire.227
Role-allocation as I have sought to describe it in this Foreword
differs from "interest-balancing" of the sort the opinion in Roe
appears to have pursued not because it avoids the need to balance
conflicting considerations, for it plainly does not. It differs pri-
marily in that the interests or arguments it "balances" are those,
225 1 do not explore here the converse, and more complex, possibility that
government might also have an affirmative duty, in connection with existing
subsistence or medical aid programs, to facilitate a woman's choice to bear and
raise a child rather than to have an abortion.
226Dandridge v. Williams, 397 U.S. 471, 48s (1970). One might suppose, from
the shift between the quoted observation by Justice Stewart in Dandridge in 1970
and his explicit acceptance of Roe in 1973 as one of "a long line of . . . cases
decided under the doctrine of substantive due process," 410 U.S. at 168, 170, that
the Justice, and perhaps some of his brethren on the Court, are prepared — or
resigned — to turn the clock back to 1937. I hope I have at least succeeded in
showing how the decisions of 1973 might be pointed in a different and less trouble-
some direction.
227 Specifically, equal protection strict scrutiny within those boundaries should
turn, I believe, on whether the particular decisions as to which such review is
proposed (1) operate to the disadvantage of groups whose interests are insuffi-
ciently represented by legislative processes and hence deserve special judicial
solicitude, or (2) operate to distribute benefits or burdens in a manner sufficiently
at odds with constitutionally grounded norms to require governmental justification.
But I see no reason to recognize a general obligation of strict scrutiny simply
because interests "fundamental" in some other context are unequally affected by
a state's distributions or distinctions. See pp. 43-44 supra.
344
i973] THE SUPREME COURT — FOREWORD 51
and only those, which bear directly on the merits of alternative
allocations of roles. It thus avoids balancing interests in a manner
that goes only to the merits of exercising various roles in par-
ticular ways — the values associated with specific outcomes viewed
in relative isolation,228 assessed from the perspective of existing
groups with already defined roles and interests. Insofar as the
values connected with one or another outcome bear on the role-
allocation problem itself, those values must of course be consid-
ered; that abortion destroys something which could otherwise
have matured into a human child, and that governmental control
could often prevent such destruction, cannot be ignored in deter-
mining who should have the power to make or veto the abortion
choice. But a focus on specific outcomes uninformed by an ex-
plicit consideration of the roles whose exercise generates them,
and unaccompanied by attention to the many other consequences
flowing from the exercise of such roles and from their assignment
in a particular way, distorts and impoverishes constitutional
analysis.
A particularistic and outcome-dominated focus significantly
reduces the likelihood that a court will perceive the full bearing of
the constitutional provisions and doctrines which a more role-
conscious perspective would reveal as relevant to deciding which
interests can, and which cannot, justify a specific allocation of
roles. The fact that governmental control over abortion in early
pregnancy cannot be justified by an invocation of the state's duty
to protect living human beings from destruction, for example,
emerges far more clearly from an analysis of what allocating this
role to government does to the relations between church and state
than it could from any analysis of the pros and cons of early
abortion itself. Similarly, the conclusion that delegating control
over early abortion to medical or other "experts" outside the
family cannot be justified by invoking arguments about the
family's self-interest and lack of expertise emerges with far greater
clarity from an analysis of how the family's claims in this area are
rooted in a constitutionally recognized associational integrity than
it could. from any discussion of the comparative costs and bene-
fits of permitting or disallowing a particular family's choice in
favor of abortion.
More generally, whether or not the Court in Roe had any-
28 By the time a case is under adjudication, the contending parties will
typically be arguing in the context of a specific exercise of the roles in question.
In Roe, for example, the contest between the woman and the state arose when
she sought to have an abortion and the state attempted to stop her. Given this
configuration, it is not difficult to see why the Court in essence equated the woman's
claim with the reasons for abortion and the state's claim with the reasons against it.
345
52 HARVARD LAW REVIEW [Vol. 87:1
thing like role-allocation in mind as it struggled with the com-
bined mysteries of birth, sex, and death, it seems clear that in
seeking to weigh only the benefits and detriments of early abor-
tion as such, the Court limited and clouded the horizon of its
inquiry by collapsing the considerations bearing on The Abortion
Decision into those involved in the abortion decision. The Court
thus excluded from analysis such considerations as the degree of
religious involvement in legislative processes and the values of
familial integrity. Most importantly, the Court failed to recognize
the large implications that the very fact of being assigned the de-
cisionmaking role would have even for families and women who
are not then in a position to exercise it.229
VII. Afterword
Unlike the aim of the Court in the Lochner era — to spin out
the theorems of a moral and economic geometry from postulates
rooted in the unalterable nature of the world — the aim I would
urge upon the judiciary is considerably more modest: to par-
ticipate, with sensitivity to its own role and its limits, in the on-
going social process of structuring the roles of others in accord
with the contemporary significance of our collective past, called
the Constitution. One can only hope that the legal profession,
which put substantive due process on the misdirected track it rode
for nearly fifty years before derailing at the West Coast Hotel in
1937,230 is now sufficiently independent of any particular group
in the "established order" to facilitate the transition I envision
229 A role-oriented perspective, too, may cause distortions. In applying it, one
must be careful not to blur the line between roles as potentially distinct as that
of vetoing abortions and that of commanding them. Cf. note 58 supra. Had
Roe been resolved the other way, for example, so that government would be able
to decide whether or not to prevent previability abortions, it would have been
a mistake to suppose that government had thereby acquired as well the authority
to decide whether or not to compel such abortions. And the fact that Roe disables
government from deciding whether to veto previability abortion choices does not
imply that, after Roe, the role of encouraging contraception as a substitute for
abortion (and of regulating fetal experiments to limit pro-abortion incentives) is
closed to government. Particularistic interest-balancing may lead one to suppose
that less is at stake in a decision than is in fact the case ; role-allocation may engender
the opposite error.
230 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (i937) ; see note 11 supra.
It was often with remarkably little self-delusion that leaders of the bar in the
late 19th century had marked out the course by which those "who believe in the
old order of things, and dread the establishment of the new," could rely "upon
the popular reverence for . . . constitutional declarations" to defend "against
the inordinate demands of socialism." Tideman, The Doctrine of Natural Rights
in Its Bearing Upon American Constitutional Law, in Report of the Seventh
Annual Meeting of the Missouri Bar Association 117 (1887), quoted in A.
Paul, supra note 35, at 27. See also A. Paul, supra, at 22-27.
346
1973] THE SUPREME COURT — FOREWORD 53
from a retrogressive and autocratic version of due process to a
conception more consistent with human progress.
In the end, of course, there can be no guarantee as to where de-
cisions like Roe will lead. But at least the essence of Roe, unlike
that of Lochner, entails an allocation of roles that can be traced —
albeit with the uncertainties inevitable in all such matters — to
premises grounded in the Constitution. Once they are persuaded
that this is so, judges should feel little anguish that they cannot
also, with Felix Frankfurter's ideal, "pierce the curtain of the
future" 231 in order to make history theirs 232 — that they cannot
always "give shape and visage to mysteries still in the womb of
time . . . ."233
231 Frankfurter, The Judicial Process and the Supreme Court, in Of Law and
Men 31, 39 (P. Elman ed. 1956).
232 See Linde, Judges, Critics, and the Realist Tradition, 82 Yale LJ. 227
(1972); cf. A. Bickel, The Supreme Court and the Idea of Progress passim
(1970).
233 Frankfurter, supra note 231, at 39.
347
Professor Tribe. I will simply try to summarize the major argu-
ments as 1 see them. I expected to be testifying this morning on con-
stitutional amendments to overturn the Supreme Court's abortion
decision. When I received the actual text of the amendments pro-
posed by Senators Buckley and Helms, I was therefore surprised
that they quite clearly would not do that, and in this respect Pro-
fessor Ely and I are in agreement. The reason can he quite simply
summarized. Basically, what these amendments seek to do. is to de-
termine as a matter of Federal constitutional law that fetuses are
persons from the moment of conception and that no government
may therefore deny them due process or equal protection.
But if anything is clear about the abortion controversy, it seems
to me one thing is. That no amount of constitutional redefinition of
fetuses as persons can alter the biological reality that they are per-
sons of a rather special sort — persons that in the early phase of
their development cannot survive without using the body of some-
one else.
And that, of course, is the source of the entire constitutional con-
troversy surrounding abortion. It was the Court's conclusion thai
the dependence of the fetus on the woman prior to viability — prior
to the time the fetus could survive independently — makes it not only
reasonable, but mandatory, that the ultimate choice whether or not
to continue the pregnancy should be the woman's. And in no way
does that conclusion rest on an argument about the personhood of
the fetus. That is, one could easily conclude, with these amend-
ments, that the fetus is a human being, a full person from the mo-
ment of conception, and still say that to deny such a person protec-
tion from the woman's choice until the point of viability is a rea-
sonable policy, entirely consistent with due process and equal pro-
tection.
And so, as I read the text of these amendments, the upshot is
that thev would not achieve their intended result. They would con-
fuse the law, leaving it rather obscure. They might have some un-
predictable consequences, but it would take an extremely strained
reading of these amendments to use them as I think they were in-
tended to be used.
Xow, that leads me to what I take to be a rather fundamental
question— namely : Why? Why is it that amendments carefully
drafted to overturn a much controverted decision of the Supreme
Court would not in fact have that effect?
I take it the reason was not stpidity. Nor wat it laziness on the
part of the draftsmen. Tt seems to me that the only plausible reason
is that the underlying issue is too intensely personal, too highly
controversial, and too religiously divisive, to lead to an;. Jsful
public formula for its resolution at this point in our history. [I
for that reason, I suspect, that one finds the rather rague and gen-
eral language of these amendments as some sort of compromise
which in the end I think misfired.
But those considerations— the intense controversy, and the ines-
capable involvement of religious views on the profoundly difficult
348
and troublesome moral question of when abortion is or is not per-
missible those are traditional reasons under our constitutional law
for regarding an area as an inappropriate one for governmental
decision.
The first amendment, which I take it these resolutions do not seek
to undo, mandates the separation of church and state. And one of
the deepest values involved in that separation is the decision that
intensely personal, religiously divisive decisions, ought to be made
not by government, but by private individuals in the context of the
family and of the intimate human group.
1 1 is for that reason, as I have argued at much greater length in
the article published on the subject last year, that Roe v. Wade, the
Supreme Court's decision delegating these areas of choice to the
woman and her family, is constitutionally -defensible.
But what emerges is the rather paradoxical conclusion that, how-
ever proper it may ordinarily be to try to overturn a Supreme Court
decision by constitutional amendment, here the very facts that make
the decision a defensible one also make it implausible that an amend-
ment could successfully solve the problem by generating any kind of
public consensus.
Now that does bring one to the question: What is there about the
Court's decision that makes it defensible? Why is Professor Noonan,
wrong in my view, in characterizing Roe v. Wade as a decision in
which the Supreme Court somehow unmade human beings?
It seems to me there are two basic reasons for not viewing the
decision that way. The first I have already touched on: It is the
intrinsic involvement of religion in the controversy.
Xow. by no means would 1 want to suggest that it is wrong for
religious groups to take public stands. What I suggesting is that the
desirability of separating church and state argues strongly for getting
the state out of the business of regulating areas which have become
so powerfully divisive in religious terms that there remains no way
of resolving them by appealing to generally shared secular agree-
ments.
The ultimate conclusion, then, is that the decision is not for gov-
ernment, but for the family, for the woman, for her doctor, for
those in the intimate group that are likelv to be most deeply affected
by the decision. At that level— in terms of traditional constitutional
doctrine, as my coleague, Professor Heymann will suggest— it is
simply wrong to see Roe v. Wade as a major departure from prece-
dent. L r
Although 1 did not want to talk very much about the aspect of
family, I cannot resist some comments on Professor Xoonan's testi-
mony in that regard, because what he had to say seems to me most
striking.
He said that one of the effects of this decision, one of the reasons
tor amending on,- most fundamental law to overturn it— although, as
I have said, the proposed amendments might well not have that effect
that the .supreme Court, in Roe v. Wade, destroyed the family
t>3 i. ringing about a situation where the father no longer has a pro-
tectable, legal interest in his offspring
349
Now, we lawyers sometimes tend to use our own forma of jargon
to make an argument which, when removed from its legal trappii
has a rather different sound. What is Professor X lan's "protect-
able legal right" of the father?
I assume what Professor Noonan is talking about is that the deci-
sion has the disastrous effect of prevening the father from going to
court to prevent his wife from having an abortion— to force her,
that is, to carrying a child through pregnancy to full term.
Now, I find it remarkable that anybody could equate the values of
family autonomy and harmony with this scenario of a lawsuit in
which the father is going to court to get an injunction against his
wife to prevent her from having an abortion!
At this point, the opponents of the Supreme Court decision often
invoke the precedent of Dred Scott, the infamous decision of the
Supreme Court involving black Americans and concluding that they
are not truly citizens.
It seems to me, if one is concerned with the parallel of slavery and
with the relevance of the 13th amendment — the Emancipation
Amendment— that a more plausible parallel is to focus on the im-
pact on the woman who, in the name of family integrity and har-
mony and autonomy, is supposed to carry a child to term against her
will and then give birth to it.
It seems to me that a woman in contemporary America who is
forced into submitting herself, at the insistence of a man empowered
by law to control her choice, to the pains and anxieties of carrying
and delivering and nurturing a child that she did not wish to con-
ceive or does not want to bear and raise, is entitled to believe that
more than a play on words links her forced labor with the concep-
tion of involuntary servitude that the 13th amendment was designed
to eliminate in our society.
Now, no less than anyone else do I see a terrible moral dilemma in
the decision to place a woman's reproductvie autonomy and her
bodily integrity above the survival, the very life, of a fetus who
surely at some point be a fully developed human being whatever one's
views of when humanity begins. But for me the implication of the
moral difficulty of that choice is not that there should he a solution
by law, but that the choice should he a personal one.
Now, Professor Xoonan concludes by saying that three things
at issue here; I think I agree with him. but I come out the oppos
way on all of them.
He savs first. Federal-State relations are at issue. I agree, hut with
my colleague Professor Ely I say that this is not a matter on winch
a uniform Federal formula is appropriate. Where Professor Ely and
I disagree is that he would make the formula one adopted by the
States, while I would make it one adopted by the individual family.
Then Professor Noonan says family automony and structure are
at issue. I agree, hut it seems to me that this points in favor of the
Supreme Court's decision, not in favor of giving any central govern-
ment the power to tell families when they may and may not abort.
Pie says, finally, that the role of government in decisions aboul
life is at issue. I agree. Hut 1 think that when those decisions become
350
sufficiently attenuated, controversial, personal, intimate, religious,
then the appropriate role of government is inaction. The appropriate
solution is to delegate the problem to private choice, neither to rele-
gate it to solution by individual State legislatures nor to seek resolu-
tion in the uniform formula of some public law, be it a statute or a
constitutional amendment which in the end is doomed to fail.
[The prepared statement of Professor Tribe follows:]
Testimony of Laurence H. Tribe, Professor of Law, Harvard University
S.J. Res. 119 and 130 have been proposed as constitutional amendment to
overturn the Supreme Court's abortion decision, Roe v. Wade, 410 U.S. 113
(19"<3). Having studied the text of the proposed amendments, I am surprised
to find that neither of them would be likely to achieve that objective, and
that both could well have consequences which even their sponsors would
regret. I have asked myself why the proposed amendments are so oddly mis-
directed even from their sponsors' own perspectives and have concluded that
the reasons go to the very heart of the abortion controversy and of the diffi-
culty of resolving it at this point in our history through public processes — a
difficulty the Supreme Court properly recognized when it entrusted deci-
sions about early abortion to the private choices of women and their doctors.
I. THE PROBABLE CONSEQUENCES OF S.J. RES. 119 AND 130
Each resolution begins with a Section 1 which would in effect declare
fetuses to be "persons" and thereby prevent any state, or the United States,
from depriving any fetus of its life without due process of law, or denying
to any fetus the equal protection of the laws. (S.J. Res. 130, Sec. 1 seeks to
prevent such acts directly, by providing that "neither the United States nor
any State shall deprive any human being, from the moment of conception, of
life without due process of law; nor deny to any human being, from the
moment of conception, . . . the equal protection of the laws." S.J. Res. 110.
Sec. 1 seeks to achieve the same end indirectly, by providing that the word
"person", as used in the existing due process and equal protection clauses
of the fifth and fourteenth amendments, "applies to all human beings, in-
cluding their unborn offspring at every stage of their biological development,
irrespective of age, health, function, or condition of dependency.")
But a legislature Or court which entrusts women and their doctors with
the responsibility of deciding whether or not to abort a pre-viablk fetus (one
not yet able to survive outside its mother) cannot plausibly be said to have
deprived any fetus of its life without due process, or in violation of equul
protection; By concluding that early abortion decisions should be privately
made. a legislative or judicial body permits but does not cause the death of
any fetus, and hence does not "deprive" any fetus of life without due process.
Nor <b»es such an allocation of choice to private parties deny equal protection
to pre-viable fetuses; insofar as it affords less protection to the pre-viable
fetus than to the viable fetus or to the newborn infant, the resulting inequal-
ity is obviously justifiable as a constitutional matter (i.e., is "compellingly"
justified) in terms of the vastly greater physical burden that protecting the
still dependent fetus would impose on its mother. Even one who believes deeply
that this added burden does not warrant putting the life of a pre-viable fetus
in its mother's hands would be hard pressed to demonstrate that a contrary
judgment is so impermissible as to violate equal protection or due process.1
The upshot is that neither S.J. Res. 119, Sec. 1. nor S.J. Res. 130, Sec. 1.
would lie likely to overturn judicial or legislative action (such as the Roe v.
1 This point Is more fully developed in Tribe, The Supreme Court, 1972 Term —
•"</ -/ Model of Rolrs in the Due Process of Life and Law, 87 HARV.
I.. REV. 1. ::ii :;:: a. Ill (1973) [hereinafter cited as Toward a Model of Roles].
blng a contrary conclusion in order to effectuate the supposed "intent" of the
amendments would not only raise all of the usual difficulties of divining intent from
ambiguous evidence bul would also require stretching settled constitutional doctrines
r as to threaten highly disturbing consequences in areas having nothing at all
to do with abortion or the "right to life."
351
Wade decision or New York's statutory liberalization of its own abortion
laws) treating decisions about pre-viability abortion as matters of private
conscience. And the same analysis applies to S.J. Res. 130, Sec 2 which would
forbid governmental killing of any fetus (among others) on account of "ill-
ness, age, oi incapacity" but would probably not forbid governmental choices
leaving the matter in private hands.
Put most smply, making fetuses "persons" under the Constitution does not
necessarily imply that women have no right to decide whether to terminaU
an early pregnancy. For no amount of constitutional redefinition can alter
the biological fact that, prior to viability, fetuses— even if they are demed
"persons"— are persons of a very special type: namely, persons whose con-
tinued survival and development can be assured only by using bodies of other
persons.2 What one believes about the morality of using someones body against
her will, or (conversely) the morality of placing bodily integrity abovi
human survival, cannot be settled simply by deciding that fetuses arc persons
and thus not to be killed by government without "due process" or "equal
protection". For the nagging question, which remains unanswered by the
mere characterization of the fetus as one kind of being or another, is what
due process and equal protection require of government in the special situa-
tion of persons linked to one another in the unique way of mother and fetus.
Would due process and equal protection require that government protect the
life of the dependent fetus (the unborn "person") over the bodily and psychic
integrity of the mother? I know of no constitutional principle that point-.
to an affirmative reply. On the contrary, the precise constitutional conclusion
of Roe v. Wade — that government cannot intervene to protect the pre-viable
fetus if the mother objects — need not be disturbed in the slightest by guaran-
teeing to such a fetus all the constitutional rights of personhood. (Any con-
trary implication in the Roe opinion, 410 U.S. at 157-158 n. 54, is pure dictum.)
If the proposed constitutional amendments would not themselves overturn
Roe v. Wade, one might exi>ect that the enabling sections of the amendments
would at least empower legislatures to bring about Roc's demise. But an
inspection of those sections suggests otherwise. The concluding Section 3 of
each resolution simply authorizes legislatures to enact laws protective of
fetal life; it does not empower them to enact laws which violate any other
person's constitutional rights in the course of providing such protection. Since
Sections 1 and 2 probably would not be construed to overturn the Supreme
Court's holding that the woman's constitutional rights include the right to
decide whether or not to abort a pre-viable fetus, it follows that Section .'<
would be unlikely to authorize the passage of legislation inconsistent with
Roe v. Wade.
Finally, S.J. Res. 119, Secion 2. by specifying that the proposed amendment
is not to apply at all w-hen continued pregnancy clearly threatens the mother's
life, strangely appears to give the viable fetus even less protection than the
Court in Roe v. Wad<i suggested states might today constitutionally extend :
Nothing in Roe prevents states from forbidding the killing of a viable fetus
simply because its separation from the mother is required to save her life:
but Section 2 of S.J. Res. 119, by authoritatively declaring the "right to life"
Sections 1 and 3 inapplicable in all such cases, might be construed to reach
that unfortunate result.
II. THE REASONS FOR BOTH RESOLUTIONS' FAILURE
The resolutions under consideration would fail to achieve their own objec-
tives not because their sponsors have lacked intelligence or resourcefulnes.
The reason for their failure. I believe, is that the underlying issue is too
intensely personal and controversial to yield to successful public resolution
at this point in our history: I suspect that no form of words truly resolving
it could generate substantial agreement, much less the sort of consensus
properlv required before we amend our most fundamental law: ami. if tin-
proposed amendments were to be ratified by three-fourths of the state legis-
latures, the reason would almost certainly be their remarkable avoidance i i
the intensely heated controversy they purport to confront.
2 See Thomson, A Defense of Abortion, 1 Phil. & Pub. Aff. 47 1971).
352
It is precisely in areas so intimate, where public attitudes are so deeply
and religiously divided, thai private choice can be most plausibly defended as
«,ur Constitution's way of reconciling the irreconcilable without dangerously
embroiling church and state in one another's affairs. In a 1970 opinion, the
late Justice Harlan observed that "the continuing debate respecting birth
control and abortion laws" typifies the very "risk of politicizing religion"
and of creating "political fragmentation on sectarian lines" which the first
amendment's separation of church and state was designed to avoid.3 When
the Court in Roe v. Wade recognizes the highly charged and distinctly sec-
tarian religious controversy that the abortion debate has come to stir,4 it
advances an argument which not only supports the basic allocation of deci-
sional responsibility mandated by Roe — the allocation of responsibility to
women and their doctors c— but also suggest the danger, and the likely futil-
ity, of seeking now to overturn that allocation by constitutional amendment.
Ordinarily, one who agrees that a particular Supreme Court decision cor-
rectly construes the Constitution remains free to support an amendment to
Mini that decision's effect. But the peculiarity of Roe v. Wade, as 1 have
suggested here, is that it defensibility as a matter of constitutional inter-
polation rests on a premise whose acceptance would argue against efforts to
overurn Roe at this time through the amendment process.
III. THE COMPARATIVE SUCCESS OF ROE V. WADE
In contrast to the predictable failure of S.J. Res. 119 and 130 to formulate
a public abortion rule that could achieve its proponents' aims while winning
general public acceptance, the Supreme Court's decision in Roe v. Watle
powerfully illustrates the comparative advantage of constitutional adjudica-
tion over the far less flexible process of constitutional amendment. I have
in mind the fact that the Court in Roe v. Wade made fetal viability the
point beyond which governmental power to protect a fetus overrides a
woman's right to control her own reproductive processes. Since the killing of
a viable fetus — one able to survive after removal from the womb — cannot
be distinguished in any operational way from infanticide, viability marks a
point after which a state, wishing to avoid acting on controversial religious
premises, could properly conclude that permitting abortion would be tanta-
mount to permitting murder in its most widely accepted secular sense.6 More
important still for our purposes, viability lias a variable character: as med-
ical technology advances, the fetus is likely to become viable — capable of
survival outside the womb — at points ever closer to conception itself. That
the impact of Roe v. Wade as a limit on state power to protect the unborn
may hence be expected to diminish with time has seemed to me entirely
appropriate in a constitutional framework that must necessarily evolve
through history.7 But more can be said. For the overriding objection to the
Court's abortion decision as ;i moral matter must surely be its subordination
of one functional "minority" (the unborn) to another (women). If this is
nid if Roe must In- seen as purchasing the partial liberation of one groir
with the enslavement (or worse) of another, at least it must be said that
choice of viability as the cut-off makes the sacrifice temporary by adopting
a virtually "self-destructing" line; the choice of viability leaves open the
path to greater protection of the unborn once the commitment of resource
to their well-being, as evidenced in part by an acceleration of the time of
viability, makes that a more plausible and widely shared ideal.
So Ro\ v. Wade emerges as a defensible though deeply troublesome deci-
: defensible because the choice it allocates to the private sphere is pro
foundly ill-suited to public resolution in the current era, and troublesome for
thai are calculated to diminish with time — as the liberating thrusl
..■ decision becomes increasingly compatible with protecting the unborn.
an amendment overthrowing Roe is to return to the public sphere
an issue we cannot yet publicly resolve, and to do so in terms that would be
*Walz v. Taw Commission, .".!i7 U.S. 064, 605 (1970) (separate opinion of Harlan, J.).
4 4io u.S. al in;, too-61.
"oward a Model of Rotes 1S-32.
/ n Model of Roles 27-28.
'See id. at 3 n. 13, 27 n. 118.
353
long frozen in constitutional stone as they would be miscalculated from the
perspective of their own proponents.
Respect for life calls for persuasion and support; I believe thai i rcion In
the absence of meaningful public consensus, whether brought aboul by statute
or by constitutional amendment, would in the end be anything but life-en-
hancing.8
Senator Bayii. Thank you, Professor Tribe, Professor HeymannJ
STATEMENT OF PHILIP B. HEYMANN, PROFESSOR OF LAW,
HARVARD UNIVERSITY
Mr. Heymaxx. Mr. Chairman, I also have an article that I would
like to submit for the record.
Senator Bayii. We will put that in the record.
[The document referred to follows:]
8 1 have not discussed here the possible Implications of S.J. Res. 119 and 130 for
such issues as euthanasia, but it seems to me clear at the very least that omnibus
amendments of this sort, triggered by one occasion in this instance, by Roe v. Wadt
but couched in terms far more broadly applicable, represent dangerously Imprudent
uses of the amending process.
354
The Forest and the Trees: Roe v. Wade
and Its Critics
By
PHILIP B. HEYMANN
DOUGLAS E. BARZELAY
Reprinted from the
Boston University Law Review
Volume 53, Number 4, July 1973
355
THE FOREST AND THE TREES: ROE V. WADE
AND ITS CRITICS
Philip B. Heymann*
Douglas E. Barzelay**
The Supreme Court's decisions in Roe v. Wade1 and Doe v. Bolton,2
holding unconstitutional state prohibitions on abortions during the early
months of pregnancy, have already engendered much popular criticism,
and have begun to attract scholarly disapproval as well.3 Criticism is likely
to continue to center around two aspects of the cases: first, that the Court
had no business "second guessing" a legislative determination that could
not be called arbitrary or wholly irrational;4 second, that in any event the
Court failed to give sufficient weight to the state's interest in protecting
the unborn.6 It is primarily with the former question that this article is
concerned; without denigrating the moral importance of the latter, its legal
ramifications are nonetheless limited. Whether the Court had any business
so carefully scrutinizing this legislative judgment, however, is a question
that touches profoundly on its institutional role in our system of govern-
ment, and on the scope of its power in defining and protecting "funda-
mental" rights.
The thesis of this article is that the Court's opinion in Roe is amply
justified both by precedent and by those principles that have long guided
the Court in making the ever-delicate determination of when it must tell
a state that it may not pursue certain measures, because to do so would
impinge on those rights of individuals that the Constitution explicitly
or implicitly protects. The language of the Court's opinion in Roe too
often obscures the full strength of the four-step argument that underlies
its decision.
(1) Under the fourteenth amendment to the Constitution, there are
certain interests of individuals, long called "fundamental"6 in judicial
decisions, that a state cannot abridge without a very good reason.7
(2) The Court has never limited this set of "fundamental" interests to
those explicitly mentioned elsewhere in the Constitution.8
(3) One set of nonenumerated but fundamental rights, which the Court
has recognized for 50 years but has only more recently begun calling aspects
• Professor of Law, Harvard University. B.A., Yale, 1954; LL.B., Harvard, 1960.
•• B.A., Yale, 1969; J.D., Harvard, 1973.
i 410 U.S. 113 (1973).
2 410 U.S. 179 (1973). The issues decided in Doe, as well as the jurisdictional issues
present in both cases, are beyond the scope of this article.
3 Among the early critical responses are Ely, The Wages of Crying Wolf: A Comment
on Roe v. Wade, 82 Yale L.J. 920 (1973); Abortion, The New Republic, Feb. 10, 1973.
4 E.g., Ely, supra note 3, at 926 passim.
5 E.g., id. at 923-26.
6 The use of the term "fundamental" to refer to the range of individual rights pro-
tected under the fourteenth amendment goes back at least as far as 1872 and the Slaughter-
House Cases, 83 U.S. (16 Wall.) 36, 76.
7 See 410 U.S. at 155.
8 Id. at 152-55.
356
766 BOSTON UNIVERSITY LAW REVIEW
of "privacy," includes rights of individual choice as to marriage, procrea-
tion and child rearing.9
(4) Since the issue of a right to terminate a pregnancy falls squarely
within this long-established area of special judicial concern,10 the Court
was obligated to determine in Roe whether the states did in fact have a
sufficiently compelling reason for abridging the individual's freedom of
choice as to abortion.11
Elucidating the precedent and principle that support the major premises
of the Court's decision in Roe does not, by itself, fully meet the arguments
of the Court's critics.12 If they have missed the forest of precedent in the
area of marriage, procreation and child rearing, in part it may be because
the Court itself has sometimes approached the cases in this area as if they
were isolated trees. However, an equally important reason for missing the
forest may be the tendency of the Court in recent cases to impose on the
fourteenth amendment, in the name of judicial restraint, a conceptual
framework that sees the amendment's broad clauses as a compendium of
discrete and more explicit protections found elsewhere in the Constitution.
In the context of the fourteenth amendment, this particular set of lenses
discloses only the separate, specific guarantees of the Bill of Rights — and
perhaps the most obvious assumptions of democratic government. Viewed
through such a filter, the decision in Roe may indeed look strange. There
are, however, other perspectives on the proper role of judicial review under
the fourteenth amendment that pose no such difficulty in justifying the
abortion decisions yet address, just as adequately, the troublesome problem
of distinguishing "fundamental" interests from the much broader class of
interests that a state legislature may regulate without satisfying a court
that the need is compelling.
I. The Justification in Precedent and Principle
for the Abortion Decisions
A. The Court Has Long Protected "Fundamental" Interests Under the
Broad Language of the Fourteenth Amendment, Including Interests
That Are Not More Specifically Defined Elsewhere in the Constitution
The first two propositions of the four-step argument underlying the
decision in Roe are no longer seriously disputed. The minimal judicial
» id.
io Id. at 154.
u Id.
12 There are, in fact, a number of comparatively serious criticisms that might be di-
rected at the decision but that do not go to the heart of the broader issues we are con-
sidering. The Court may well have gone too far in its seeming codification of detailed
restrictions on health regulations and procedures, particularly during the first trimester
of pregnancy. The line it drew at viability is presently vague, subject to troublesome
modifications with the development of medical knowledge and technique, and, in any
event, perhaps further along during pregnancy than the mother's interest requires. Further,
the Court's ruling that, even after the fetus is viable, the state's protection of the fetus
cannot conflict with consideration of the mother's "health," which may well include men-
tal health, is wholly unexplained and undefended. These and other, less significant,
criticisms are not, however, crucial to its decision invalidating state prohibitions of abor-
tion and they are thus not relevant to the discussion of that core holding which follows.
357
ROE V. WADE AND ITS CRITICS 767
protections that are granted an individual whenever a state purports to
regulate or abridge any form of his liberty, however unimportant — pro-
tections against invidious distinctions, unfair procedures and wholly irra-
tional or arbitrary state impositions — are not the only types of protections
the fourteenth amendment accords. Some few private interests and liberties
have, throughout this century, been declared entitled to a much greater
measure of respect at the hands of state legislatures and have been afforded
a far more protective measure of judicial scrutiny and concern. Nor has
this list of interests specially protected under the vague words of the
fourteenth amendment been limited to those mentioned or plainly implied
in some other clause of the Constitution.
In 1927, Justice Brandeis was able to summarize the matter in this way:
Despite arguments to the contrary which have seemed to me persuasive,
it is settled that the due process clause of the Fourteenth Amendment
applies to matters of substantive law as well as to matters of procedure.
Thus all fundamental rights comprised within the term liberty are
protected by the Federal Constitution from invasion by the states.
The right of free speech, the right to teach, and the right of assembly
are of course fundamental rights. . . . These may not be denied or
abridged.13
The summary itself included "the right to teach," an interest that is not
specified in the Constitution. Even the right of free speech is, by the specific
terms of the Bill of Rights, protected only against federal intrusion; it
has been judicial construction, over a number of years, that has found
protection for this right in the ill-defined words of the fourteenth amend-
ment.14 The same is true of the right of assembly, as well as of other guar-
antees of the Bill of Rights.15
The special protection afforded particular rights has gone far beyond
the explicit provisions of the first eight amendments. The right of associa-
tion is not mentioned in the first amendment, but the Court has deemed
its protection implicit in the several guarantees of that amendment.16 The
Court has also treated the right to travel as fundamental, requiring a
showing of a compelling interest to support a state's burdening of the
right.17 Yet no such right is specified in the Constitution; it is apparently
13 Whitney v. California, 274 U.S. 357, 373 (1927).
14 See Malloy v. Hogan, 378 U.S. I, 5 (1964).
15 Id. at 4-7.
16 See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958).
17 See, e.g., Dunn v. Blumstein, 405 U.S. 330 (1972); Shapiro v. Thompson, 394 U.S. 618
(1969) For cases grounding the right to travel in the due process clause, see Aptheker v.
Secretary of State, 378 U.S. 500 (1964); Kent v. Dulles, 357 U.S. 116 (1958). While the Court in
Aptheker recognized that first amendment rights were implicated in the broad congres-
sional ban on issuance of passports to Communists, it had to find as a threshold matter
that the right to travel was specially protected under the due process clause of the fifth
amendment. It then went on to find a strong countervailing governmental interest, that of
national security, which would justify some restrictions on travel but not those that also
unnecessarily infringed protected first amendment rights. Zemel v. Rusk, 381 U.S. 1 (1965).
followed this same analytic pattern, citing Kent and Aptheker for the proposition that
" Ttlhe right to travel is a part of the "liberty" of which the citizen cannot be deprived with-
out due process of law under the Fifth Amendment.'" Id. at 14, quoting Kent v. Dulles,
358
768 BOSTON UNIVERSITY LAW REVIEW
enough that it has come to be recognized in a series of cases as "funda-
mental to the concept of our Federal Union."" Indeed, the Court went
even further in the instance of voting rights. While acknowledging that
there is no constitutional right, explicit or implicit, to vote in state elec-
tions, it nonetheless found a constitutionally protected right "to participate
in elections on an equal basis with other citizens in the jurisdiction""
against which state interference must be strictly scrutinized. This is so,
apparently, because the question of distribution of the franchise goes to
the heart of the legitimacy of government, posing "the danger of denying
some citizens any effective voice in the governmental affairs which sub-
stantially affect their lives."20
The consequences of recognizing certain interests as "fundamental" have
been much the same for cases arising under the due process and equal
protection clauses. An unusually strong state interest has been required
to justify particular state laws or executive action when the issue has arisen
under the due process clause. On other occasions, the consequence has
been to apply an unusually rigorous scrutiny to legislative classifications,
striking down classifications under the "equal protection" clause that would
have been entirely acceptable had there been a less important interest at
stake. Though the formulations of the appropriate standard of review have
varied,21 the import of the judicial determination that an interest is "funda-
mental" is the same in both classes of cases: some interests are judicially
protected against the political whim which suffices to determine most
matters in a democracy.22
supra, at 125; quoted in Aptheker v. Secretary of State, supra, at 505. The Court then went
on to find the restrictions on travel to certain countries justified by "the weightiest consid-
erations of national security," id. at 16, and to find that the restrictions did not sweep
overbroadly its protected first amendment areas.
18 United States v. Guest, 883 U.S. 745, 757 (1966). Whatever may be the merits of the
argument that the founders intended to protect the right to interstate travel under the
privileges and immunities clause, Ely, supra note 3, at 927, the Court has not relied on
this theory. Shapiro v. Thompson, 394 U.S. 618, 630 (1969) (footnote omitted): "We have
no occasion to ascribe the source of this right to travel interstate to a particular con-
stitutional provision."
ie Dunn v. Blumstein, 405 U.S. at 336.
20 Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 627 (1969) (footnote omitted).
21 See United States v. O'Brien, 391 U.S. 367, 376-77 (1968). The "compelling state in-
terest" standard has been invoked in both due process and equal protection cases. Compare
Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972), with Shapiro v. Thompson, 394 U.S. 618,
634 (1969), and Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 627 (1969). Usually,
however, the equal protection test is phrased in terms of "strict scrutiny." See, e.g., Harper
v. Virginia Bd. of Elections, 383 U.S. 663, 670 (1966); Gunther, The Supreme Court, 1971
Term, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a
Newer Equal Protection, 86 Harv. L. Rev. 1, 8 passim (1972).
22 Precisely how the Court treats such specially protected interests depends upon a
number of factors. See United States v. O'Brien, 391 U.S. 367, 376-77 (1968) (seeks to dis-
tinguish among degrees of impact on protected rights). See also Braunfeld v. Brown, 366
U.S. 599 (1961). But cf. Sherbert v. Verner, 374 U.S. 398 (1963).
As to the basic philosophy behind strict protection of "fundamental" rights, Justice
Jackson, speaking in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943),
of the Bill of Rights, saw in it a purpose "to withdraw certain subjects from the vicissitudes
359
ROE V. WADE AND ITS CRITICS 769
In short, the criticism that has been directed at the Court's opinion in
Roe is not and could hardly be addressed to the first two steps of its argu-
ment. It is generally conceded that there are certain interests of individuals
that a state cannot abridge without very good reason and that these inter-
ests have not been limited to those that were stated explicitly by the
Framers of the fourteenth amendment nor even to this category as supple-
mented by a judicial power to incorporate some of the first eight amend-
ments. What was said by Justice Harlan in his dissent in Poe v. Ullman23
remains true a dozen years later.
[T]wo views of the [Fourteenth] Amendment have not been accepted
by this Court as delineating its scope. One view, which was ably and
insistently argued in response to what were felt to be abuses by this
Court of its reviewing power, sought to limit the provision to a guar-
antee of procedural fairness. . . . The other view which has been
rejected would have it that the Fourteenth Amendment, whether by
way of the Privileges and Immunities Clause or the Due Process
Clause, applied against the States only and precisely those restraints
which had prior to the Amendment been applicable merely to federal
action. However, "due process"" in the consistent view of this Court
has ever been a broader concept than the first view and more flexible
than the second.24
Though it is thus clear that the fourteenth amendment must be inter-
preted more broadly than a mere protection of fair procedure, and more
flexibly than a mere license to incorporate some of the first eight amend-
ments, a crucially important question remains. At the heart of scholarly
debate in this area of constitutional law is the problem of defining the
boundaries of the judicial power to limit legislative action. Before turning
to this issue, however, let us look at the remaining steps of the Court's
argument in Roe.
B. The Court Has Long Recognized and Treated as "Fundamental" a
Realm of Private Decision as to Matters of Marriage, Procreation and
Child Rearing
The Court in Roe held that among the "fundamental" fourteenth
amendment rights is a category that encompasses protection of individual
freedom of choice in matters of marriage, procreation and child rearing.28
The line of precedent on which it relied begins almost half a century ago.
In the first of these cases, Meyer v. Nebraska,29 a state ordinance forbade
the teaching of German in any school to anyone who had not passed the
eighth grade. The Court found that the right of parents to control the
of political controversy, to place them beyond the reach of majorities and officials and to
establish them as legal principles to be applied bv the courts.
23 367 U.S. 497 (1961).
24 id. at 540-41.
25 410 U.S. at 152-53.
26 262 U.S. 390 (1923).
360
770 BOSTON UNIVERSITY LAW REVIEW
education of their children was within the concept of "liberty" under the
fourteenth amendment,27 and went on to condemn the statute, as it af-
fected a teacher and child in a private school, as inadequately related to
a legitimate state purpose. Two years later, in Pierce v. Society of Sisters,28
the fourteenth amendment "liberty of parents and guardians to direct the
upbringing and education of children under their control,"28 was invoked
to strike down a state statute requiring that children be sent to public
schools. And, in Prince v. Massachusetts,30 the Court— while sustaining
the state action— again affirmed the existence of a "private realm of family
life which the state cannot enter"31 without substantial justification.
Skinner v. Oklahoma32 involved a state law compelling sterilization of
"habitual criminals." While framing the case in equal protection terms,
the Court recognized the presence of an interest that calls for a much
stricter scrutiny than that normally given in equal protection cases: "We
are dealing here with legislation which involves one of the basic civil
rights of man. Marriage and procreation are fundamental to the very
existence and survival of the race."33 This sentiment was echoed in Griswold
v. Connecticut3* where the Court noted that "[w]e deal with a right of
privacy older than the Bill of Rights . . . ."35 In Griswold, statutes that
forbade the use of contraceptives by married couples, and the giving of
27 id. at 399.
28 268 U.S. 510 (1925).
29 Id. at 534-35. Although the Court has in recent years discerned first amendment ele-
ments in Meyer and Pierce, see Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (freedom
of thought), Wisconsin v. Yoder, 406 U.S. 205 (1972) (freedom of religion), the cases them-
selves were not framed in such terms. And, though they are products of the Lochner era,
see Ely, supra note 3, at 932 n.79, they have been a constant point of reference down to
the present day. In addition to the cases discussed in the text accompanying notes 30-47 infra,
see, e.g., United States v. Kras, 409 U.S. 434 (1973); Wisconsin v. Yoder, supra, at 232-34.
Though the Court in Yoder found in Pierce a free exercise dimension, it did not thus
limit its reading of the case; nor could it have, since the case involved not just a paro-
chial school but also a secular military academy. Id. at 239 (White, J., concurring).
so 321 U.S. 158 (1944).
31 Id. at 166:
It is cardinal with us that the custody, care and nurture of the child reside first in the
parents, whose primary function and freedom include preparation for obligations the
state can neither supply nor hinder.
This special relationship between parent and child was reaffirmed in Levy v. Louisiana,
391 U.S. 68, 71 (1968), a decision which is not otherwise explicable on normal equal pro-
tection grounds: "The rights asserted here involve the intimate, familial relationship
between a child and his own mother."
82 316 U.S. 535 (1942).
88 id. at 541. This reading of the case was expressly confirmed in San Antonio Ind.
School Dist. v. Rodriguez, 93 S. Ct. 1278, 1297 n.76 (1973): "Implicit in the Court's opinion
is the recognition that the right of procreation is among the rights of personal privacy
protected under the Constitution." Though the Court in Skinner spoke in traditional
equal protection terms, it in fact exercised a very close scrutiny of the statute involved.
Indeed, the larceny-embezzlement distinction that Oklahoma drew would not be deemed
irrational if the power of the state to punish one by a more severe prison term than the
other were in question.
84 381 VS. 479 (1965).
8B id. at 486.
361
ROE V. WADE AND ITS CRITICS 771
advice as to such use, were struck down as a violation of the marital right
to privacy. While seven of the Justices agreed as to the existence of such
a right, they divided as to its source.36 Nonetheless it is apparent that,
whatever the source, the right of a married couple to make its own decisions
about contraception was clearly linked with the zone of protection from
unwarranted government intrusion in familial and procreative affairs estab-
lished by Meyer, Pierce, Prince and Skinner.31
Two years later, in Loving v. Virginia,36 the Court reaffirmed the pro-
tected status of marital interests under the due process clause, noting that
"[t]he freedom to marry has long been recognized as one of the vital per-
sonal rights essential to the orderly pursuit of happiness by free men."89
Marriage interests were also at the core of the due process protection in
Boddie v. Connecticut,*0 in which the Court held that access to the courts
in a divorce case could not, in contrast to such access in an ordinary civil
suit, be conditioned on the payment of fees by an indigent.41
Contraception was again a central issue in Eisenstadt v. Baird,42 in which
a number of the questions left open in Griswold were raised. The Massa-
chusetts statutes, unlike those considered in Griswold, proscribed distribu-
tion of contraceptives, although not in all circumstances.43 The decision
36 Justice Douglas, for the Court, found the underpinnings of a general right to privacy
in the "penumbras" of the Bill of Rights, id. at 484-85; Justice Goldberg (with Warren,
C.J., & Brennan, J.) found the right of privacy in the marital relation to be implicit in
the constitutional scheme, and not tied to particular enumerated guarantees, seeing in the
ninth amendment an indication that the category of "fundamental" rights extended be-
yond those specifically mentioned in the Bill of Rights. Id. at 494-96. For Justice Harlan
(and apparently for Justice White), *'[t]he Due Process Clause of the Fourteenth Amend-
ment stands ... on its own bottom." Id. at 500.
87 While the Court raised the specter of police intrusion in the bedroom, id. at 485-
86, this should not mislead one into thinking that this case involved no more than the
possibility of outrageous government prying. The Court could have forbidden police in-
trusions without striking down the statute. Otherwise valid regulations do not usually
stand or fall on the possibility of unconstitutional enforcement— indeed, if this was the
Court's logic, it has shown no disposition to follow that logic the short step to protecting
other sexual activity against similarly outrageous possibilities. In fact, the "right" which
the case affirmed implicitly included a right of access to information about contraception
(plaintiffs were the operators of a birth-control clinic). See Dixon, The Griswold Penumbra:
Constitutional Charter for an Expanded Law of Privacy, 64 Mich. L. Rev. 197. 212-13
(1965). As Eisenstadt v. Baird, 405 U.S. 438 (1972), later implicitly made clear, this right of
access precludes much state regulation of distribution of contraceptives, a question the
Court in Griswold explicitly left open. See note 46 infra.
38 388 U.S. 1 (1967). . .
39 id. at 12. The due process clause was an alternate ground of decision in this case
striking down Virginia's anti-miscegenation laws; the Court's decision placed primary
emphasis on the equal protection clause.
40 401 U.S. 371 (1970). Alone among the cases under discussion, Boddie was not cited
in Roe. .... j .w
41 Although there is language in this case that indicates that the decision turned on the
availability of alternative forums of resolution, that was only one aspect of the decision,
as the Court's discussion of Boddie in United States v. Kras. 409 U.S. at 440-46. makes
clear Indeed. Justice Douglas' concurrence in Boddie, 401 U.S. at 385. vigorously attacks
what he recognizes as Justice Harlan's characterization of marriage as a fundamental interest.
42 405 U.S. 438 (1972). .. . , „ ,„ „ a
43 Specifically, the statute as construed by the Supreme Judicial Court (1) allowed mar-
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772 BOSTON UNIVERSITY LAW REVIEW
purported to find the statutes in violation of the equal protection clause,*4
thereby leaving open the issue of whether states could totally forbid distri-
bution of contraceptives. In fact the opinion made it clear that any regula-
tion of contraception would be very strictly scrutinized.46 Significantly, the
Court also rejected a limitation of Griswold to the marriage relation:
If the right of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted governmental intrusion
into matters so fundamentally affecting a person as the decision whether
to bear or beget a child.46
It may be that these cases could, with some effort, have been individually
distinguished on narrow grounds;47 taken together, however, they clearly
delineate a sphere of interests— which the Court now groups and denomi-
nates "privacy"— implicit in the "liberty" protected by the fourteenth
amendment. At the core of this sphere is the right of the individual to make
for himself — except where a very good reason exists for placing the decision
in society's hands — the fundamental decisions that shape family life: whom
to marry; whether and when to have children; and with what values to
rear those children.
It is hardly surprising that the Court has come to protect these interests
over the last half century. Our political system is superimposed on and
presupposes a social system of family units, not just of isolated individuals.
No assumption more deeply underlies our society than the assumption
that it is the individual who decides whether to raise a family, with whom
to raise a family, and, in broad measure, what values and beliefs to in-
culcate in the children who will later exercise the rights and responsibilities
of citizens and heads of families. Any sharp departure from this assumption
would cut as deeply at the underlying conditions of acceptance of our
society and governing institutions as a broad restriction on the right to
vote or hold office.
This point is as important as it is easy to overlook. It is, of course, obvious
that the family has historically been a fundamental unit of our society
for such purposes as socialization and nurture, and that it ranks in im-
portance with the individual as a unit of economic and political decision
making.48 What is far less obvious is that the family unit does not simply
ried persons to obtain contraceptives for the prevention of pregnancy only from a doctor
or druggist; (2) did not allow single persons to obtain contraceptives for that purpose;
but (3) did allow anyone to obtain contraceptives from any source to prevent the spread
of disease. Id. at 441-42.
44 See Gunther, supra note 21, at 54- 35.
46 Id.
4« 405 U.S. at 455. While the Court In Eisenstadt avoids a direct confrontation with
the issues left open in Griswold, it seems clear that state restrictions on use of contra-
ceptives by unmarried persons, or on distribution, would be unlikely to survive strict Court
scrutiny. See Note, The Supreme Court, 1971 Term, 86 Harv. L. Rev. 52, 119-22 (1972).
47 See notes 29, 53, 37, 39. 41, 45 & 46 supra.
<8 To adduce one simple example, parents are expected to represent whole families for
governmental purposes ranging from taxation to voting.
363
ROE V. WADE AND ITS CRITICS 773
co-exist with our constitutional system; it is an integral part of it. In
democratic theory as well as in practice, it is in the family that children
are expected to learn the values and beliefs that democratic institutions
later draw on to determine group directions. The immensely important
power of deciding about matters of early socialization has been allocated
to the family, not to the government. Thus, if a state government decided
that all children would be reared and educated from birth under such
complete control of a state official that the parental role would be minimal,
the effect on our present notions of democratic government would be
immense. The form of our government would not change; elections would
go on in the same way and group decisions would be arrived at by the
same processes as are now used. The substance of our system, however,
would be vastly different. The outcomes of the political system would be
radically altered, for the government would then be vested with the capacity
to influence powerfully, through socialization, the future outcomes of dem-
ocratic political processes. The fact that individuals would remain legally
free to believe and speak as they wished would not diminish the immense
impact of centralizing the processes through which values and beliefs are
instilled in the people who will later participate in group decision making.
A similar, if less thoroughgoing, alteration of the present allocation of
powers in our society could be provided by controlling who is allowed to
have children or otherwise regulating the selection of marital partners.49
In this light, the long line of precedent in this area under the fourteenth
amendment is entirely principled. For the Court to have declined strict
review of state legislation that limits the private right to choose whom to
marry and whether to raise a family, or to decide within wide bounds how
to rear one's children, would have been to leave the most basic substructure
of our society and government subject to change at political whim. To
have treated these matters as rather remote emanations of protections
found in the first amendment or elsewhere in the Bill of Rights would
have been disingenuous at best, ineffective at worst.
The similarity of the protected rights in the areas of marriage, procrea-
tion and child rearing to the expressly protected rights in the area of
religion is striking. Like religious beliefs, beliefs in these areas are often
deeply held,50 involving loyalties fully as powerful as those that bind the
citizen to the state. Decisions on these matters tend to affect the quality
of an entire lifetime, and may not easily be reversed. The choice of whom
to marry or whether or not to have a child, once taken, will have as strong
an impact on the life patterns of the individuals involved for years to come
as any adoption of a religious belief or viewpoint. Decisions of families
in the area of "privacy," like decisions of individuals in the area of religion,
cannot easily be controlled by the state; and the devices needed for effective
49 See, e^g., the statute involved in Skinner, 316 U.S. at 536-37.
60 As is true of all fundamental rights, these may be deeply important to some and
irrelevant to others.
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774 BOSTON UNIVERSITY LAW REVIEW
enforcement of state policy may themselves be so intrusive as to be deeply
offensive. At the same time, the impact of an individual's decisions on
questions of marriage, procreation and child rearing diminishes greatly
beyond the setting of the family itself, just as most religious practices
affect primarily those who adopt and engage in them.61 In other words,
the impact of such decisions falls largely within one of the basic units of
our society and thus does not involve the powerful interest of society in
regulating the relationships among its familial and individual units.52
In these ways the area that the Court has come to call "privacy" shares
with the area of religion sharp distinctions from the areas that the states
may regulate with greater freedom.63 Regulation of economic interests
does not invade the basic units of society, nor does it touch emotions as
deeply held as those in the areas of religion and family, nor, short of the
unconstitutional taking of private property without compensation,64 does
it generally involve decisions with far-reaching effects on the entire life
of the individual. Further, economic regulation, unlike regulation of "pri-
vacy" interests, deals directly with that interaction among units which is
the primary concern of political arrangements.66 Similarly, the Court would
not be required to find that either all consensual sexual activity or the
use of soft drugs was protected. To whatever degree such behavior may
be socially harmless, it certainly does not produce the same kind of nearly
irrevocable effects, nor spring from the same deep well of cultural values
as do decisions about marriage, procreation, or child rearing.66
Like many matters of constitutional law, the boundaries separating these
areas are not marked off by nature in sharp outline, yet they can be drawn.
Laws forbidding couples to have more than two children or requiring
sterilization under certain circumstances do differ importantly from regu-
lation of economic arrangements, more transient sexual activity, or the
use of drugs. The former deserve strict scrutiny; the latter do not. This
is not to say that there will not be hard cases, but rather that the Court's
decisions from Meyer through Eisenstadt fall clearly within a principled
framework that can be applied in determining whether the interests pressed
01 Even where very important societal interests exist, as in education and child welfare,
they may have to yield to such parental interests. Wisconsin v. Yoder, 406 U.S. at 224-29.
B2 This distinction was recognized in Stanley v. Georgia, 394 U.S. 557, 567 (1969), in
which the Court distinguished between the state's proper interest in regulating public
distribution of obscene material, upheld in Roth v. United States, 854 U.S. 476 (1957), and
its attempt to regulate private enjoyment of such material. But cf. United States v. Reidel,
402 U.S. 351 (1971).
83 Obviously, this does not imply that either area is free from regulation. See Braunfeld
v. Brown, 366 U.S. 599 (1961); Prince v. Massachusetts, 321 U.S. 158 (1944).
84 The Constitution specifically prohibits the taking of property without just compen-
sation, U.S. Const, amends. V, XIV.
B8 See, e.g., Emerson, Nine Justices in Search of a Doctrine, 64 Mich. L. Rev. 219, 224
(1965).
66 The Court in Roe recognized as much, 410 U.S. at 154, in observing that the right
to "privacy" in this area does not include "an unlimited right to do with one's body as
one pleases."
365
ROE V. WADE AND ITS CRITICS 775
forward in future contexts deserve similar protection. Difficulties in draw-
ing lines will appear, but they will be no greater than the present difficulties
in defining the scope of "religious" belief or practice under the free exercise
clause of the first amendment.67 In both cases the importance of the pro-
tection justifies the effort required in defining its boundaries.
C. The Court's Decision in Roe Was Justified by the Precedent and Prin-
ciples That, over Fifty Years, Have Led to a Recognition of "Privacy"
Rights
Plainly the right of a couple to decide whether or not to prevent the
birth of a child by abortion falls within the class of interests involving
marriage, procreation and child rearing which the Court has considered
"fundamental" in Meyer, Pierce, Prince, Skinner, Griswold, Loving, Boddie
and Eisenstadt. The question of constitutionality in the case of abortion
statutes is a more difficult one than that involved in Griswold and Eisenstadt
only because the asserted state interest is more important, not because of
any difference in the individual interests involved. The couple's right to
decide whether to have a family is the very same right as that established
and protected in the cases dealing with contraception; considerations iden-
tical to those that justify protecting the broader class require careful
scrutiny of regulations concerning abortion. The point is made most clearly
by considering what a conclusion that abortion did not fall within a
category of specially protected interests would have meant. A state, on a
slender showing of rationality, could have required abortions — perhaps
as incident to limiting a woman to two children — unless of course the
fetus' rights were fundamental even though the mother's were not. It could
have forced a woman to carry the child of her rapist to term; it could
have conditioned the right to an abortion on the payment of a fee or
the discretionary approval of a state official.
Recognizing that abortion falls within the class of fundamental interests
of "privacy" does not mean that statutes prohibiting abortion had to be
considered unconstitutional — only that they had to be justified by com-
pelling state interests. The Court might logically have concluded that the
state's interest in protecting the unborn was compelling enough to over-
ride the parents' rights,68 without seriously threatening the broad range
of individual rights already established under the line of decisions from
Meyer through Eisenstadt. What it could not do, unless it was prepared to
discard the principles of those cases, was to avoid evaluating the state's inter-
est to see if it justified taking from the mother all discretion in the matter
of abortion. Striking the necessary balance plainly required an agonizingly
67 See Wisconsin v. Yoder, 406 U.S. 205, 215-19 (1972); Welsh v. United States, 398 U.S.
333 (1970); United States v. Seeger, 380 U.S. 163 (1965). Cf. People v. Woody. 61 Cal. 2d
716, 394 P.2d 813. 40 Cal. Rptr. 69 (1964).
68 The Roe Court makes clear that it is not reaching or deciding the question whether
it would reach the same result were the father's decision to be contrary to that of the
mother with respect to the abortion. 410 U.S. at 165 n.67.
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776 BOSTON UNIVERSITY LAW REVIEW
difficult decision, involving as it did drawing the line where protection of
life may begin, a subject on which public opinion was stridently divided.
Yet neither the difficulty nor the impassioned setting of the decision was
a principled ground on which the Court could refuse to make an evalua-
tion it was otherwise called upon to make.
The final step of the Court's argument was forced upon it by the prior
steps. What the Court had to decide was whether there is an early stage
at which the potential of the embryo or fetus is not of sufficient importance
to warrant abridging the constitutional right of a woman to decide whether
she shall bear children. The Court decided that there was such a stage,
and that it ended at about the point at which the fetus was capable of
sustaining life outside the womb. One cannot deny, and the Court did
not deny, that some would attach great weight to the prospect of life from
its earliest days when we have little more than a handful of cells possessing
a rich genetic code. But much that we associate with the value of human
life is not present at the earliest stages. There is no feeling nor thought of
which we know. There is no reciprocal relationship to others that is re-
flected in need or love. There is no memory or fear. What most of us
mean by life, what most of us care about when we think of protecting
life, is not true of the 12 or 16 cells present on the third or fourth day
after pregnancy nor is it present for some time thereafter. Indeed, so much
has always been recognized by each of the 50 states in making abortion
a lesser crime than homicide.
It is, of course, important that a sharp line be drawn to show where
human life begins and ends if we are to maintain a respect for life without
regard to differences in intelligence, age, capacity and experience. One may
fault the Court for not having drawn such a line with sufficient clarity,5*
but surely it was right that the line can safely be drawn well after the
emergence of a fertilized egg. Sometime thereafter there comes a point at
which the social interest in the protection of life becomes at least as import-
ant as any burden the mother may then have to bear. Clearly, that point
has been reached by birth; the Court finds that it may be reached at the
point at which life becomes capable of sustaining itself. Perhaps this line
is further along than some would like it to be, but that is unlikely to
have great practical significance. The overwhelming proportion of abor-
tions will take place in the first few months. What is crucial is the correct-
ness of the Court's determination that there is an early stage at which the
potential of the embryo or fetus does not justify overriding the right of
the woman to decide whether she will bear a child.
The Court had to go as far as finding that human life with all its claims
to importance had not begun in the early days of the embryo and the fetus.
But in a very important sense, that is not the consequence of the decision.
The consequence is that, subject to the restrictions that states may impose
69 See note 12 supra.
367
ROE V. WADE AND ITS CRITICS 777
under Roe, it is the moral judgment of the mother and her doctor that
determines when the life of the fetus shall be considered so substantial as
to preclude abortion. One need not be certain how he feels about an
abortion at the end of the six weeks or 20 weeks to approve of the decision.
It is enough to feel that the answer may depend on the woman's age, her
marital situation, her financial circumstances and a large number of other
factors.60 It is in light of all these factors, which no statute can incorporate,
that the Court has in effect allocated the choice for the first five or six
months after conception to the mother and her doctor. It has not decided
that the fetus has no moral claim within this period, but simply that the
fetus has no legal claim that the state can enforce. This allocation of choice
among the mother, the state and the Court was wholly consistent with
constitutional precedent and reasoning.
II. The Scope of Review of State Legislation
Under the Fourteenth Amendment
A. A Conceptual Framework That Does Not Fit
Despite contentions that the Court in Roe simply followed its own socio-
political predilections, it should be evident by now that what it followed
was an established line of cases and principles, and that that path led it to
the difficult but inescapable job of evaluating the state's interest in the
abortion decision. We have not attempted a full defense of the Court's
resolution of that issue. The important point for this discussion is not what
the Court ultimately decided. What is critical is that if the Court was not
to evade both its own precedents and the strong, constitutionally based
policy underlying those precedents, it had to weigh the state's interest
against the constitutional requirement that it be a compelling one.
If precedent and principle adequately supported the Court's decision in
Roe, albeit not compelling it,61 what explains the impression shared by
many observers that the Court was asserting a free-wheeling power to strike
down state legislation that it considered unwise? Surely much of the
60 The situation of the plaintiff in Doe is illustrative:
She was a 22-year-old Georgia citizen, married, and nine weeks pregnant. She had
three living children. The two older ones had been placed in a foster home because of
Doe's poverty and inability to care for them. The youngest, born July 19, 1969, had
been placed for adoption. Her husband had recently abandoned her and she was
forced to live with her indigent parents and their eight children. She and her husband,
however, had become reconciled. He was a construction worker employed only spo-
radically. She had been a mental patient at the State Hospital. She had been advised
that an abortion could be performed on her with less danger to her health than if
she gave birth to the child she was carrying. She would be unable to care for or
support the new child.
410 U.S. at 185.
61 Professor Ely states that Roe and Doe represent a "quantum jump" rather than an
incremental development in constitutional doctrine. Ely, supra note 3, at 9S6 n.93. Whether
Roe and Doe represent a "quantum jump" is, of course, a conclusion to be drawn largely
from how a student of the Court's decisions reads the preceding decisions. Narrowing
the decisions from Meyer through Eisenstadt certainly allows one to draw a "quantum
jump" conclusion. This article demonstrates that Roe and Doe are incremental develop-
ments in constitutional doctrine.
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778 BOSTON UNIVERSITY LAW REVIEW
answer lies in the Court's recent tendency to justify its decisions under the
fourteenth amendment in terms of their relationship either to other specific
provisions of the Constitution or to the more obvious political assumptions
of democratic government. The language of the Court in the recent case of
San Antonio Independent School District v. Rodriguez is illustrative:
The lesson in these cases in addressing the question now before the
Court is plain. It is not the province of this Court to create substantive
constitutional rights in the name of guaranteeing equal protection of
the laws. Thus the key to discovering whether education is "funda-
mental" is not to be found in comparisions of the relative societal
significance of education as opposed to subsistence or housing. Nor is
it to be found by weighing whether education is as important as the
right to travel. Rather, the answer lies in assessing whether there is a
right to education explicitly or implicitly guaranteed by the Constitu-
tion. Eisenstadt v. Baird, 405 U.S. 438 .. . (1972); Dunn v. Blumstein,
405 U.S. 330 .. . (1972); Police Department of the City of Chicago v.
Mosley, 408 U.S. 92 . . . (1972); Skinner v. Oklahoma ex rel. William-
son, 316 U.S. 535 ... (1942).62
The fact of the matter is that, while this language may justify a refusal
to treat education as a fundamental right, it will not explain a number of
cases recognizing rights that the Court has no intention of abandoning, as
the citation of Skinner and Eisenstadt makes clear. At least it will not
explain these cases unless the notion of rights "implicitly guaranteed" is
given a scope so broad as to make deceptive the suggestion that the Court's
hands are tied by plain words and obvious implications. The Court has
recently construed decisions in the area of marriage, procreation and child
rearing as based on a right of privacy implied by that "penumbra" of the
Bill of Rights which it first discovered in Griswold v. Connecticut.63 Yet
surely Justice Douglas' reliance on claimed overtones of specific amendments
in recognizing a right of marital privacy in Griswold cannot obscure the
fact that neither abortion, contraception, sterilization, marriage, divorce, nor
child rearing falls in a definable category closely related to the protections
of the Bill of Rights. And there is no other constitutional provision, aside
from the fourteenth amendment, on whose words one can hang the recog-
nition of over 50 years of individual rights in these areas.
To admit so much is not, however, to weaken the defense of half a
century of precedent in the area of "privacy" rights. There was no need in
Griswold or in the abortion decision to strain to find the result dictated by
the "penumbra" of the first, third, fourth and fifth amendents, as Justice
Harlan's concurrence in Griswold underscores:
the proper constitutional inquiry in this case is whether this Connect-
icut statute infringes the Due Process Clause of the Fourteenth Amend-
ment because the enactment violates basic values "implicit in the
concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 ... .
«2 93 S. Ct. at 1297 (footnotes omitted).
<" Id. at 1297 n.76.
369
ROE V. WADE AND ITS CRITICS 779
While the relevant inquiry may be aided by resort to one or more of
the provisions of the Bill of Rights, it is not dependent on them or any
of their radiations. The Due Process Clause of the Fourteenth Amend-
ment stands, in my opinion, on its own bottom.64
This willingness to rely, for standards of judicial review of state legislation
under the fourteenth amendment, on basic values related by principle and
tradition to central, widely accepted, organizing concepts of our society —
whether the roots of these values are written or understood and whether
they are political or social — has a claim in history and logic at least as strong
as the claim of those who would limit judicial review to explicit provisions
of other parts of the Constitution or to these supplemented only by the most
obvious political preconditions of democratic government.
B. The Historic Debate About the Scope of Judicial
Review Under the Fourteenth Amendment
The disagreement between Justices Douglas and Harlan as to how to
justify the Griswold decision continued a debate about conceptual frame-
works for judicial review under the fourteenth amendment which had
begun decades earlier. In the background were decisions of the Supreme
Court in the early years of this century striking down various forms of
economic regulation on the ground that the asserted state interests in
health, safety, or morality did not justify interfering with private interests
in freely contracting, in carrying on one's business as one pleased, or most
generally in doing as one "likes so long as he does not interfere with the
liberty of others to do the same."65 The high watermark of this judicial
interference in what we all now take to be legitimate legislative activity
may have been Lochner v. New York,66 decided in 1905, striking down a
state statute that limited the hours that a baker could work to 60 per week.
The Court's opinion was premised at least as much on its finding that the
state interest asserted was specious or illegitimate as on any special impor-
tance it attributed to the private interests involved.
Since the 1930's the Court has vigorously denied the propriety of such
searching judicial scrutiny or "second-guessing" of the reasons justifying
most cases of state regulation of private activity. Except where it has found
particularly "fundamental" private interests to be at stake, it has applied
to state legislation an extremely tolerant standard of review, sustaining
under trie fourteenth amendment any noninvidious statute that could even
arguably be justified by a legitimate state purpose.67 But substantially all
members of the Court through the ensuing years have continued to believe
that some private interests require strict judicial review of the needs justi-
fying state statutes. They have divided on a subsidiary issue: what form of
64 381 U.S. at 500.
65 Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).
6« Id.
67 See Gunther, supra note 21, at 8.
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780 BOSTON UNIVERSITY LAW REVIEW
words, if any, will so define the class of specially protected interests as to
guarantee adequate judicial deference to state legislatures and to foreclose
any return to holdings like Lochner. About this, there has been heated
debate.
In one camp have been found, prominently, Justices such as Cardozo,68
Frankfurter and Harlan, each of whom has emphasized the uncodified
quality of the fourteenth amendment. The long-revered traditions and the
widely shared values of our society may be the source book of judicial pro-
tection under the fourteenth amendment, they have argued, but no complete
written compilation of these interests exists or will exist:
The Amendment neither comprehends the specific provisions by which
the founders deemed it appropriate to restrict the federal government
nor is it confined to them. The Due Process Clause of the Fourteenth
Amendment has an independent potency, precisely as does the Due
Process Clause of the Fifth Amendment in relation to the Federal
Government. . . .
A construction which gives to due process no independent function
but turns it into a summary of the specific provisions of the Bill of
Rights would . . . assume that no other abuses would reveal themselves
in the course of time than those which had become manifest in 1791.69
[TJhrough the course of this Court's decisions [due process] has repre-
sented the balance which our Nation, built upon postulates of respect
for the liberty of the individual, has struck between that liberty and
the demands of organized society. . . .
. . . It . . . recognizes, what a reasonable and sensitive judgment must,
that certain interests require particularly careful scrutiny of the state
needs asserted to justify their abridgment.70
Justice Black was the leading exponent of a contrary view: that the due
process clause of the fourteenth amendment incorporated all of the Bill of
Rights but only those rights.71 To him, what was uncodified was open-
ended and what was open-ended was unrestrained.
I fear to see the consequences of the Court's practice of substituting its
own concepts of decency and fundamental justice for the language of
the Bill of Rights as its point of departure in interpreting and enforcing
that Bill of Rights
. . . [TJhis formula also has been used in the past, and can be used
in the future, to license this Court, in considering regulatory legisla-
tion, to roam at large in the broad expanses of policy and morals and
to trespass, all too freely, on the legislative domain of the States as well
as the Federal Government.
68 See, e.g., Palko v. Connecticut, 302 U.S. 319 (1937).
89 Adamson v. California, 332 U.S. 46, 66-67 (1947) (Frankfurter, J., concurring).
to poe v. Ullman, 367 U.S. 497, 542-43 (1961) (Harlan, J., dissenting).
71 Justices Rutledge and Murphy advocated yet a third position, accepting the position
of Justice Black with regard to inclusion of the Bill of Rights but, with respect to exclusion
of other interests, adding the caveat that the due process clause is not "entirely and
necessarily limited by the Bill of Rights." Adamson v. California, 332 U.S. 46, 124 (1947)
(Murphy, J., dissenting).
371
ROE V. WADE AND ITS CRITICS 781
• ■ • [To] Pass upon the constitutionality of statutes by looking to the
particular standards enumerated in the Bill of Rights and other parts
of the Constitution is one thing; to invalidate statutes because of appli-
cation of "natural law" deemed to be above and undefined by the
Constitution is another.72
The outcome of this debate has been an uneasy compromise. A majority
of the Court has, for some years, declined to accept the apparently un-
democratic implications of the conceptual framework adopted by Justices
Cardozo, Frankfurter and Harlan. At the same time, there has never been
a majority prepared to agree with Justice Black either that the Framers of
the fourteenth amendment intentionally made any or all of the Bill of
Rights applicable against the states or that, in all other cases, duly enacted
state statutes that were neither wholly arbitrary nor discriminatory were
proof against attack under the broad language of the fourteenth amend-
ment. In recent years a majority has displayed a preference for justifying
its actions in terms of explicit provisions of the Constitution or plain impli-
cations of a democratic form of government;73 but it has neither pretended
that its actions have been mandated by the decisions of the Framers of the
fourteenth amendment nor hesitated to reach results that would have sur-
prised even a careful reader of the document — invalidating, for example,
punishment for narcotics addiction,74 residency requirements for welfare
benefits,75 and filing fees as a bar to criminal appeal78 or state elections,77
as well as the wide array of laws in the area of marriage, procreation and
child rearing which we have been considering.
C. The Choice of Conceptual Frameworks for Judicial Review
Under the Fourteenth Amendment
In the final analysis, each Justice of the Court must decide for himself
where he will stand on the continuum lying between the positions marked
out by Justices Cardozo, Frankfurter and Harlan, on the one hand, and
Justice Black, on the other. Continuing to speak in terms that suggest
compelled application of more explicit provisions of the Constitution or of
only very obvious implications of a democratic form of government does
serve the purpose of making less plain the deep-seated dilemma of judicial
review in a democratic setting. But the dilemma will not be less for those
who recognize that the Court admittedly chooses what provisions of the
Bill of Rights it will apply against the states,78 that what is implicit in our
72 Id. at 89-91 (Black, J., dissenting) (footnotes omitted).
78 See, e.g., Duncan v. Louisiana, S91 U.S. 145 (1968); Robinson v. California, 370 U.S.
660 (1962); NAACP v. Alabama, 357 U.S. 449 (1958).
74 Robinson v. California, 370 U.S. 660 (1962).
76 Shapiro v. Thompson, 394 U.S. 618 (1969).
76 Griffin v. Illinois, 351 U.S. 12 (1955).
77 Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).
78 Compare Duncan v. Louisiana, 391 U.S. 145 (1968) (affirming that the sixth amend-
ment right to trial by jury In all criminal cases is incorporated in the fourteenth amend-
ment), with Hurtado v. California, 110 VS. 516 (1884) (rejecting a claim that the fifth
372
782 BOSTON UNIVERSITY LAW REVIEW
democratic form of government is rarely obvious,79 and that the meaning of
even explicit provisions is generally far from clear.80 Nor, as Justices
Frankfurter and Harlan pointed out long ago, is the case compelling that
this framework imposes self-restraint on the Court.81 Those who would say
that it does must reckon with the Court's recent ability and willingness to
fit such cases as Skinner, Robinson, Shapiro, Griswold and Roe within this
setting of explicit and plainly implicit provisions of the written Constitution.
On the other side, the costs are high to the Court if it denies its responsi-
bility for finding in our uncodified values and understandings the content
of the vague words of the fourteenth amendment. If it takes the denial
seriously, it declares that the political whim of any state legislature is
enough to justify laws deeply offensive to the unwritten tradition and
conscience of the American people. There is simply no reason to believe
that every such law — to take a realistic example, a law such as President
Nixon is proposing that would punish those who, because of insanity,
cannot control their actions or tell right from wrong82 — fits comfortably
within some constitutional provision other than the due process or equal
protection clauses. If it does not take seriously its purported dependence
on explicit or plainly implicit terms of the Constitution, it subjects itself
to such criticism as has followed upon its decision in Roe, complaints that
any neutral generalization of values derived from the first, fourth and fifth
amendments that included limitations on laws dealing with sterilization,
contraception, marriage, divorce and abortion would be so broad as to leave
the Court with unfettered power.
The alternative for the Court is to recognize, as Justices very deeply
committed to judicial restraint have in the past urged, that judicial restraint
is, on the one hand, a condition of the mind and, on the other, a response
nurtured by tradition and expectations, in either event unenforceable by
mechanical rules or labels. In this light, each Justice and the Court as an
institution must decide on the meaning of the fourteenth amendment in a
context of felt tension between acute recognition of the anti-democratic
amendment right to an indictment is incorporated in the fourteenth amendment). See
also Morford v. Hocker, 394 F.2d 169 (9th Cir. 1968).
78 Compare, e.g., Colegrove v. Green, 328 U.S. 549 (1946), with Reynolds v. Sims, 377
U.S. 533 (1964).
80 For example, as to the sixth amendment right to trial by jury, see Johnson v.
Louisiana, 406 U.S. 356 (1972); Williams v. Florida, 399 U.S. 78 (1970).
81 See, e.g., Griswold v. Connecticut, 381 U.S. at 501 (Harlan, J., concurring); Adamson
v. California, 332 U.S. at 59 (Frankfurter, J., concurring). The illusory nature of the re-
straint is well illustrated by Justice Douglas' concurrence in Boddie v. Connecticut, 401
U.S. at 385. Justice Douglas argues that the Court's opinion reopens the Pandora's box
of substantive due process, and suggests that this could have been avoided, while pro-
ducing the same outcome in the case at hand, by recognizing poverty as a suspect classi-
fication. Yet it is hard to see how this formulation is any more productive of restraint, or
easier to draw lines around, than a recognition of rights in the marriage area as "funda-
mental."
82 S. 1400, 93d Cong., 1st Sess., tit. I, § 504 (Comm. Print 1973). Compare Powell v.
Texas, 394 U.S. 514 (1964).
373
ROE V. WADE AND ITS CRITICS 783
implications of judicial review of legislation — at least where the words of
the Constitution are vague — and awareness that no constitution could list
specifically all the social values that are so deeply prized and widely shared
in our society that we have come to expect barriers to their easy defeat by
legislative majorities.83
It may, of course, be important to be able to demonstrate or prove
publicly the Court's commitment to self-restraint even as it strikes down a
state statute. But, as we hope we have shown in part I, this can be accom-
plished persuasively by a reasoned analysis of the relationships among:
(1) the statute; (2) the interests claimed to deserve special protection; (3) the
understandings about our society on which that claim rests; and (4) the
bases for considering those understandings not subject to legislative altera-
tion except for compelling reasons. It is simply not necessary to attach
almost magical qualities to even tenuous and largely verbal relationships
between the claim for judicial protection and some relatively specific pro-
vision of the Constitution.84
For those who agree that the answers were not provided definitively by
the Framers of the fourteenth amendment, and all the present Justices fit
within this category,85 the choice between conceptual frameworks for apply-
ing the broad terms of the fourteenth amendment finally turns on the
answer to a set of difficult questions including: what framework gives the
appearance of most restricting the Court's embarrassing power; what frame-
work really restricts that power most; what framework gives the states most
freedom; which gives most guidance to state officials and lower courts; what
gives most protection to deeply held societal values; and what framework is
most manageable for the Court itself to apply with limited resources. The
choice is not easy, but it must be made if the Court's actions are to be
consistent with its justifications.
83 This tension is less extreme than it may at first appear, for judicial review is less
antidemocratic than it seems. Even written limitations on legislative activity, such as the
Bill of Rights, are based less on the paternalistic notion that our forefathers knew belter
what is good for us than on the self-paternalistic idea that passion, bias and temptation
may temporarily blind our legislative representatives to more important values. After all,
the Framers wrote the Bill of Rights to protect themselves against their own follies. Courts
may not know better than legislatures what is basic to our shared institutions and values,
but they are less subiect to pressures to ignore in particular cases the reasoned implica-
tions of principles that many people would happily set aside temporarily but few would
abandon permanently. Thus when a court and a legislature are in conflict, it is often
impossible to say which better embodies public values. Where there is such a disagree-
ment its basis is as likely to lie in a difference of view as to the extent to which long-term
principles should control current discretion as it is in any disagreement about whether
there is continuing popular support for the particular principle. See generally Rostow.
The Democratic Character of Judicial Review, 66 Harv. L. Rev. 193 (1952). But see, e.g..
Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.
L. Rev.129 (1893).
84 Sutherland, Privacy in Connecticut, 64 Mich. L. Rev. 283 (1964).
85 For Justice White's view, see Griswold v. Connecticut, 381 U.S. at 502 (White, J..
concurring). For Justice Rehnquisfs view, see Roe v. Wade, 410 U.S. at 171-74 (Rehnquist,
J., dissenting).
374
784 BOSTON UNIVERSITY LAW REVIEW
In recent cases a majority of the Justices has chosen to speak largely,
though not exclusively, in terms of the more explicit provisions of the Bill
of Rights and of the more obvious political assumptions of democratic
government. In these terms alone it is hard to justify the abortion decisions.
The opinion in Roe does, however, suggest additional reliance upon an
alternative, at least equally compelling, framework for review under the
fourteenth amendment: that set forth over recent decades by Justices
Cardozo, Frankfurter and Harlan. Sadly, the Court failed to relate the
body of long-emerging precedent it recognized as significant within this
framework to those articulable, widely shared principles that the precedents
reflect and that are fundamental to many of our social and political arrange-
ments. This failure leaves the impression that the abortion decisions rest in
part on unexplained precedents, in part on an extremely tenuous relation
to provisions of the Bill of Rights, and in part on a raw exercise of judicial
fiat. The holding in Roe is, nonetheless, far more solid than it at first
appears; for it is fully consistent with, and reflects a groping toward, prin-
ciples that are justified in both reason and precedent even if these principles
were never adequately articulated by the opinion of the Court.
375
Mr. Heymann. I think you will find as I talk, also somewhat ex-
temporaneously, that my views are very close bo Professor Tril
I do think that the basic question here is not whether there should
be abortions or should not be abortions hut who should make the
decision. Should that decision be made by a constitutional amend-
ment or should it be made by State Legislatures or should it be made
as the Supreme Court says, by a woman and her doctor? I think
that is the fundamental question.
As we go through, I also, like Professor Tribe, will try to point
out where I disagree with Professor Xoonan and Professor Ely, but
I would like to begin by being a little bit less generous with the two
amendments that are before us than any of my very gentlemanly law
school colleagues have been.
I think it is fair to say that unless there is a defense of not having
understood what the writers were doing in these two proposed amend-
ments, they reflect an arrogance that is positively breathtaking.
Let me see if I can support that statement for you. It is possible
that they make a mistake. Tribe and Ely have both argued that they
probably do not accomplish what they want to accomplish, hut 1
take it that it is clear that they want to accomplish, but I take it
that it is clear that they want to accomplish what I am about to say :
one, to deny to every State the right to treat abortion differently from
murder, to say that the rights of the fetus are identical to the rights
of the 25-year-old woman or man.
Before Roe against Wade, every one of the 50 States in the United
States considered abortion different from murder. That is also the
answer to Professor Xoonan who says the Supreme Court is going
around now deciding who are people and who are not people. It has
been clear for 500 years in the common law and in all 50 States
before Roe against Wade that fetuses were not protected the way
infants or adolescents or adults or the aged were protected.
That distinction had existed forever until these amendments came
along.
Second of all, these amendments would deny to every State the
right to make exceptions to an abortion law for serious danger to
the mother's health, for rape, for incest, and for severe physical and
mental defects of the fetus. Many States throughout the country
made those exceptions. The judges and law professors and scholars
who came together in the American Law Institute sat down together
and they proposed those exceptions — hundreds of professors and
judges.
The people who wrote the model Abortion Act have pro]
similar exceptions. These proposed constitutional amendments with-
out a word of explanation, do away with all of that.
The final point on what I would say about these amendments is
that the Helms resolution and perhaps also the Buckley resolution
would set aside with the back of the hand the common law history
of treatment in torts and property of the unborn. I am not sure the
Buckley resolution would do it. I am quite sure the Helms resolution
would set aside hundreds of years of accident law. assault law. prop-
erty law, inheritance law. without a thought.
My argument from that is that there is no basis for a constitutional
amendment that overrides the views of history and the Stal
376
laures in such an arrogant war. The hard question becomes, should
the decision be made by the States, which Professor Ely would urge?
Or should it be made' by the individual mother together with the
doctor?
The proposed amendments, and here is the place that I differ most
fundamentally from Professor Ely. the proposed amendments I think
sel themselves against a long line of decisions that is 50 years old in
our country. Professor Ely and others can explain them as really
being first 'amendment decisions and really something else decisions.
But to any layman, and to Justice Stewart and Justice Harlan, to
many lawyers, they are family decisions. They are not based on a
strained interpretation of the first amendment or any other part of
the Bill of Rights.
What these decisions have said is that the State cannot tell a
family whether or not their children will learn German, they can-
not tell a family that their children will not go to private schools. The
State has to be' careful if it wants to go around sterilizing prisoners.
The State cannot pass contraceptive laws of various sorts. Even
divorce is a special matter; it has to be paid for by the State if the
individual cannot pay for it. Illegitimate children have special rights
because of the family relationship. Over and over and over again,
for 50 years, I believe that the Supreme Court has marked off an area
of decision and said this is for private individuals : whether to marry,
whether to divorce, how to raise their children, whether to have chil-
dren— cont racept i ves.
And right along that line of decisions came Roe against "Wade and
Doe against Bolton. It did not come as a surprise to all the world as
Professors Xoonan and Ely would suggest. The lower courts in those
decisions were affirmed, they were not reversed. They had anticipated
this. It was right along the line of decisions in the family area saying
that except for very good reason, certain basic decisions are made
by private individuals and not by State legislatures.
Well, I wonder if the sponsors of these constitutional amendments
really would want to support an amendment that said these matters
are up to the State legislature, rather than an amendment which says,
"let us do it our way, whatever State legislatures want."
I wonder what the sponsors would say if the amendment said,
State legislatures can require abortions or forbid abortions as they
prefer. They can require contraception or forbid contraception as
they prefer. They can order your children to learn German or forbid
them to learn German.
Would the sponsors be in favor of that? Somehow or other, in the
back of my heart I do not believe it. I believe that given the choice
of leaving that inidividual hands or leaving that in the hands of
State legislatures, they would say it shoulld be left in individual
hands.
Just to close. Professor Tribe says that one important reason, and
for him the overwhelming one, that we do not want this type of
decision to be put into the hands of State legislatures, is that it will
hi' overwhelmed by religious consideraions, that the relevant consid-
erations are wholly religious. Separation of church and state suggests
Strongly that it should be left in other hands, in private hands. I
would come out the same way if that were not true, because of the
377
area of family independence that lias been built up as a cornerstone,
I think, of our Constitution, over 50 years.
But I agree with Professor Tribe and I want to put in the record
a story that hit me rather hard.
When I told a student who was working for me on another matter,
a woman law student named Diane, that 1 was coming down to
testify on this, she told me that she had written to her Congressman,
who I will leave unidentified, and expressed her opposition to tin-
abortion amendment.
She said that she received in turn a long and thoughtful letter
stating both sides of the issue and then saying in the last sente:
"In the final analysis, I am Catholic and tor that reason I am sup-
porting the abortion amendments."
And she said to me, "Now how am I supposed to react to that ?.
He is my Congressman and I am not Catholic. Is the subject beyond
discussion between us?" It seems to me a dramatic illustration of
the problems of religious involvement that have to come in here if it
becomes a matter of constitutional amendment, or state Legislation.
Finally, I think the problems would be terribly acute if any such
amendment is passed because the strength of feeling of women about
having unwanted children, let alone children who are likely to be
severely damaged by German measles or Thalidomide, the strength
of feeling that I would have in that situation is fully comparable to
the most severe of religious conflicts in history.
I would anticipate that at this stage, to pass an amendment such
as these would have results comparable to prohibition. The only
difference being perhaps that poorer women would be unable to get
abortions.
Thank you, Mr. Chairman.
[The full statement of Professor Heymann follows:]
Testimony of Philip B. Heymann, Professor of Law, Harvard Lam- School
INTRODUCTION
The subject of this set of hearings is whether the abortion cases should
stand. I understand that the Committee has asked todays witnesses to ad-
dress the narrower, purely legal question "were they correctly decided?" That
question must be considered in terms of judicial self-restraint and deference
to legislatures rather than in terms of morality and the meaning of life; for
the power of courts to overrule elected state legislatures is at the core of
the legal issues. Moreover, in the final analysis, under the Supreme Court de-
cision neither the Court nor the legislature decides aboul the morality "f
terminating a pregnancy. In the end, the decision is to allocate that respon-
sibility for choice to the woman and her doctor.
The question is, was the court correct to cut legislatures and legality out
of the issue, leaving private individuals and morality. I think it plain that
the abortion cases were correctly decided. Showing that requires beginning by
stating clearly the five steps id" the Court's argument.
1. Under our Constitution, there are certain interests of individuals that
a state cannot abridge without very good reason. About this I think there
is no real debate.
2. This list of protected interests or rights is not restricted to explicit pro-
visions of the Constitution. It includes other interests brought forward slowly
over time by judicial construction of the Constitutional notions of "due
process," "liberty," and "equal protection."
3. The right of a woman and her doctor to decide whether or not -he shall
go through with a pregnancy and give birth to a child is one of these funda-
378
mental interests ; it belongs on the lists of rights that a state cannot abridge
without strong reasons. .
4 Once it has been shown that a state is abridging such a fundamental in-
terest it is the dutv of the Court to decide whether the state's action is
justified by sufficiently important countervailing interests. It cannot defer to
the legislature here. . .
5 Finally the Court has held that there are stages in the development
from a single fertilized egg to birth at which a claim made by someone other
than the parent of the embryo or fetus that the process be allowed to con-
tinue cannot override the right of the woman and her doctor to decide to the
contrary.
Let us look at the five steps one at a time. Take the first. Of course a state
cannot affect individual interests for frivolous reasons, or no reason, or inde-
fensible reasons of prejudice. But I think Professor Ely agrees that the Con-
stitution goes farther than this in the case of certain fundamental interests
of individuals. Freedom to worship as one pleases is an obvious example.
These a state cannot abridge, even unintentionally, without very good reason.
Two clauses of the Federal Constitution have borne the primary weight for
the Court in thus limiting the power of state legislatures. Both are in the
Fourteenth Amendment; one forbids the deprivation of life, liberty, or prop-
erty without due process of law; the other forbids the denial of equal pro-
tection of the laws. Under both clauses the Court has overruled plausible state
judgments in order to protect some individual interests by requiring a much
stricter standard of the states, by demanding that there be a strong basis
for the state's interference with the individual interest.
This power of the Court has been questioned throughout this century. In
the early 1900's the Supreme Court decided that the right to contract and the
right to carry out one's business as one pleased wTere such fundamental in-
terests; that is, interests that could not be abridged by the states except for
very compelling reasons. The high water mark of this may have been the
case of Locluur v. New York in 1905 striking down a state statute which
limited the hours that a baker could work to sixty per week. Since that time
the Court has vigorously rejected any claim that freedom of contract or
freedom to carry out one's business is a specially protected interests. But at
the same time, it has never been prepared to say that there are no such
specially protected interests. The Jutsices whose names have become famous
for their opposition to the Lochner line (Holmes, Brandeis, Stone, Cardozo)
were themselves satisfied that freedom of speech could not be interfered with
by the states without a compelling reason. They all agreed that the right of
parents to send their children to private schools was also such a specially
protected interest.
In 11>12T Justice Brandeis was able to summarize the matter in this wTay :
Despite arguments to the contrary which have seemed to me persuasive,
it is settled that the due process clause of the Fourteenth Amendment ap-
plies to matters of substantative law as well as to matters of procedure. Thus
all fundamental rights comprise within the term liberty are protected by the
Federal Constitution from invasion by the states. The right of free speech,
the right to teach, and the right of assembly are of course fundamental rights.
The important point to emphasize here is that almost everybody agrees by
now that the clause of the Fourteenth Amendment which forbids depriving
any person of life, liberty, or property without due process of law grants a
substantive protection against certain state statutes. It does not simply re-
quire fair procedures. The question that has concerned judges and legal
scholars is what individual interests are fundamental, not whether there
are any.
IIA : THE HARLAN STATEMENTS
This takes me to the second step of the court's argument. The Court plainly
holds that the list of fundamental interests of individuals is not restricted
to explicit provisions of the Constitution but may grow slowly to include
interests that are implicit in the most basic but unwritten values of our
society. Tins has been affirmed explicitly by some of the most respected and
conservative of justices in recent years; not only Brandeis but Cardozo,
379
Frankfurter, and Harlan are examples. No where is the point slated more
clearly than in the opinions of Justice Harlan dealing with tl
contraception. In the forerunner of the Griswold case, foe v. I llman in L961,
Justice Harlan noted and I quote :
"Two views of the Amendment have not been accepted by this Court as
delineating its scope. One view which was ably and insistently argued in
response to what were felt to be abuses by this Court of Its reviewing power
sought to limit the provisions to a guarantee of procedural fairness. The othei
view which has been rejected would have it that the Fourteenth Amendment
whether by way of the privileges and immunities clause or the due pro
clause applied against the states only precisely those restraints which had
prior to the Amendments been applicable merely to Federal action. However.
due process in the consistent view of this Court has ever been a broader con-
cept than the first view and more flexible than the second. Through the
course of this Court's decisions [due process] has represented the balance
which our nation, built upon postulates of respect lor the liberty of the indi-
vidual, has struck between that liberty and the demands id' organized society.
[It] recognizes what a reasonable and sensitive judgment must: that certain
interests require particularly careful scrutiny of the state needs asserted to
justify their abridgement."
In Griswold v. State of Connecticut, Justice Harlan went on to argue that
the claim that limiting the Court to specific provisions of the Constitution
would enforce judicial self-restraint was itself fallacious.
Specific provisions of the Constitution, no less than due process, lend them-
selves as readily to personal interpretations by judges. . . .
IIB : THE CASES
There are no clearer examples of the Courts' willingness to go beyond the
explicit language of the Constitution in recognizing fundamental interests than
the cases, such as Harper v. Virginia Board of Elections, where the Court has
struck down state election laws, although the Constitution apparently leaves
the matter of state elections to the judgment of state legislatures. Professor Ely
distinguishes these cases as rationally based on a failure of the very assump-
tions on which deference to legislative judgment depends. I shall argue later
that the distinction is not nearly as sharp as he suggests. Still, for clarity, let
me begin with another set of cases demonstrating that the Constitution pro-
tects certain personal interests which bear no close relation to any specific pro-
hibition on state or federal actions. I shall mention seven examples.
Two of the cases arising in the 1920's involved the right of parents to rear
children as they see fit. M < i/< r v. Nebraska struck down a prohibition on the
teaching of German to children who had not passed the eighth grade. Pierck v
Society of Sisters sustained, with the support of Holmes. Brandeis, and Stone.
the right of parents to send their children to private schools. Neither opinion
was based on the First Amendment right of free speech. In Skinner v. okia-
koma in 1942, the Court plainly applied an unusually strict test of rationality
in striking down an Oklahoma statute providing for the sterilization of people
repeatedly convicted of theft. I have already mentioned Griswold v. Connecti-
cut in 1965 holding unconstitutional the Connecticut prohibition on the use <>f
contraceptives. The Court emphasized the possibility that the police might
search marital bedrooms "for telltale signs of the use of contraceptives," but
I believe that most people recognized that this was disingenuous. The rourt
could have forbidden police intrusion into homes without invalidating the
statute, vet they chose to invalidate it.
In Levy v. Louisiana in 1968, the Court recognized and emphasized in strik-
ing down a statute discriminating against illegitimate children that "the rights
asserted here involve the intimate, familial relationship between a child and
his own mother." The dissents made clear that a traditional, equal protection
line would not have voided the state statute. Surely a recognition of the un-
usual importance of the relationship was crucial to the decision. Then in
Boddie v. Connecticut, the Court extended the right to dispense with paying
court fees to poor people involved in bringing divorce actions. Justice Harlan's
language was "given the basic position of the marriage relationship in the
society's hierarchy of values and the concomitant state monopolization of the
means for legally disolving this relationship, due proces does prohibit the
from denying, solely because of its inability to pay. access to its courts to
380
individuals who seek judicial dissolution of their marriages." There is no cor-
responding provision for other rights involved in civil litigation. If one is sued
on a contract or wishes to sue for an automobile accident, he cannot proceed
without paying fees. While Justice Harlan purported to distinguish these cases
on the ground that there were other ways of settling without recourse to
courts he mentions no other ways and it seems clear that the special nature
of the'marriage relationship was again crucial. Surely the decision would have
been different it a fee for a driver's license had been in issue. Finally, as a
prelude to the abortion cases, the Supreme Court decided Ei.unstadt v. Baird
applying what all recognized as an extraordinarily strict standard of equal
protection to strike down a statute prohibiting the distribution of contracep-
tive drugs.
Each of these decisions can perhaps be narrowly distinguished, as can a
number of others which fall in much the same category. But the fact that,
through a variety of careful distinctions, one might avoid Justice Harlan's
conclusion that the Fourteenth Amendment has never been restricted to either
matters of procedure or matters of substance found elsewhere in the Constitu-
tion, does not deal with the strong sense of where the Court has gone over a
period of the last fifty years.
nc : THE POLICY
So much for precedent. It may be as much to the point to ask whether, in
interpreting the proper relationship of our institutions, one would prefer, with
Justice Black, that only cases that fit within other provisions of the Consti-
tution be given special review by the Supreme Court or whether one would
wish, with Justice Harlan, to have the Court recognize a developing field of
protection of interests reflecting a deeply held social values. Consider the fol-
lowing hypothetical cases. Suppose a state were to prohibit operations de-
signed to remedy disfiguring birth defects or scars from burns or accidents
or psychiatric treatment of mental illness, justifying the action in each case
on the ground that the state statute would have the effect of encouraging doc-
tors to do what the legislature considers more useful work. I, for one, believe
that the Court not only would but should strictly review such state decisions.
Suppose that a state were, in order to reduce the great costs of shoplifting,
to require anyone civilly committed for narcotics addiction thereafter to iden-
tify himself by wearing a clearly labeled arm band when shopping within its
jurisdiction. I suppose the Court would find that to be a denial of equal pro-
tection, but the provision is rational. The real basis for strict review of a
plausible measure to deal with a serious problem would be the very fundamen-
tal and powerful interference with the right of the person subjected to the
provision. And what if, considerably more plausibly, a state were to forbid
abortion in the case of pregnancy resulting from rape. Would this not be an
appropriate occasion for a careful review of the states' reasons?
IIIA : THE SETTING
The third stage of the Supreme Court's opinion is a holding that the right
of a woman and here doctor to decide whether or not she shall go through with
the pregnancy and give birth to a child is one of the fundamental interests
which a state cannot abridge without powerful countervailing reasons. Is there
something distinct and special about this interest that suggests it should be
treated like an exercise of freedom of religion and protected by the Court?
Or is it one of any number of other interests, like the right to smoke pot for
example, that we all assume are better left to legislative decision, even legis-
lative folly? The answer is. I submit, very plain.
Even a quick look at the list of cases which I have already given shows
that this interest is very much in an area that the Court has slowly, over five
or six decades, come to protect with special concern. It first protected the right
to decide how children shall be reared: it then protected the right of procre-
ation against sterilization; it has given special attention to the right of divorce
and to the right of marriage (Loving v. Virginia, a miscegenation case) ; it
had before the abortion case recognized, in Levy v. Louisiana, the special im-
portance of rights involving "the intimate familial relationship between a
child and his own mother" and it had of course in Clriswold and Eisenstadt
emphasized the right not to give birth to a child, in those cases by use of
contraceptives.
381
IIIB : THE CHARACTERISTICS OF THE PROTECTED CATEGORY
For three reasons, only two of which are relied upon by the Court, it
to me that, against this emerging background, the Court was correcl to find
fundamental and deserving of special protection the interest of a women in
deciding whether she shall go through with a pregnancy and give birth to a
child. First, the cases have come to recognize a facet of our lives as fraught
with feeling and meaning as religion is today or was in 1T!«>. The area of
beliefs and behavior surrounding the decision to marry or separate, to pro-
create or not, and to rear children according to one's beliefs shares with the
area of religious belief and worship both a personal importance that makes
state interference deeply disruptive and a privacy that makes state interfer-
ence generally unnecessary. As with the case id' freedom of religion, press, or
speech particular forms of interference may be unimportant to the individuals
involved in some cases and may he necessary in others, hut in each case strict
judicial review is warranted of the need for abridgment of deeply personal,
extremely intimate, profoundly meaningful beliefs and behavior. This, 1 take
it, is what the Court meant by its reliance on a right id' personal privacy.
The question of initiating, continuing, or terminating a pregnancy involve
fundamental interests for a second reason. Like a prohibition of surgery to
remedy defacing sears and like a requirement that former shoplifters or ex-
heroin addicts wear an identifying arm hand, pregnancy pervasively alters the
content and quality of a human life. Justice Blackmun thus spoke of the detri-
ment that the state would impose upon the pregnant women by denying her
the choice between continuing or terminating her pregnancy.
Maternity, or additional offspring, may force upon the woman a distl
life and future. Psychological harm may he imminent. Mental and physical
health may be taxed by child care. There is also the distress, for all concerned,
associated with the unwanted child, and there is the problem of bringing a
child into a family already unable, psychologically and otherwise, to care for
it. In other cases, as in this one, the additional difficulties and continuing
stigma of unwed motherhood may be involved.
The facts involved in Doe v. Bolton arc illustrative:
"(1) She was a 22-year-old Georgia citizen, married, and nine weeks preg-
nant. She had three living children. The two older ones had been placed in a
foster home because of Doe's poverty and inability to care for them. The
youngest, born July 19, 1969, had been placed for adoption. Her husband had
recently abandoned her and she was forced to live with her indigent parents
and their eight children. She and her husband, however, had become recon-
child. He was a construction worker employed only sporadically. She had hen
a mental patient at the State Hospital. She had been advised that an abortion
could be performed on her with less danger to her health than if she gave birth
to the child she was carrying. She would be unable to care for or support the
new child.
Finally, the Court did not mention, but might well have noted, that as in
the voting cases which Professor Ely distinguishes, the reasons for deference
to the views of a state, legislature are severely weakened in the setting of
abortion and contraception. The well-to-do and prominent, the successful and
influential, those in short who must be depended upon to bring about a change
in law have not found it difficult to escape the prohibitions of contraceptive
and abortion laws. Before Griswold and Eisenstadt, the well off were not with-
out contraceptive advise and devices in Connecticut and Massachusetts. Before
Does and Roe, abortions could be obtained in another state or country if one's
private doctor refused. It is not a coincidence that each of these cases involved
the poor and politically weak, public meetings and clinics not private offices.
The Court has been understandbly unwilling to remedy discrimination on the
basis of ability to pay the costs of services. But where such discrimination
may w^ell eliminate much of the pressure for legislative views reflect public
beliefs are surely reduced as well.
IV : THE COIRT MUST WEIGH THE COfNTKRVAIM NO INTEREST
The fourth step of the Court's argument is a holding that once it has 1 n
shown that a state is abridging a fundamental interest it is the duty of the
Court to decide whether the state's action is justified by sufficiently important
countervailing interests. This has, of course, been the practice whether the
382
fundamental interests was freedom of religion, freedom of speech, freedom of
travel, the right to vote in state elections, or the array of interests surround-
ing the sexual and child-rearing aspects of our lives. On reflection, the rule
could hardly be otherwise. The Court can no more protect these private inter-
ests from state abridgment if it accepts the state's evaluation of the Consti-
tutional balance than it could enforce the limits of federal legislative power
if it accepted Congressional judgment as to the meaning of the Constitution
and the impact of Congressional actions. Marbury v. Harlan decided the
latter issue 170 years ago. The same reasoning applies here. There can be no
protection, for example, of the intimacy of the marriage relation if the mere
existence of a state prohibition on use of contraceptives is taken to establish
an overriding state interest of a moral, social, or medical nature.
Nor is the matter different when the very issue is whether invasion of a
fundamental interest of a women is justified by a claim that there is at stake
the interests of another equally important being, the embryo or fetus. Whether
the fetus, at any particular stage, entitled to equal consideration is the very
matter the Court must decide. It cannot at the same time accept the state's
judgment on this matter and purport to protect the fundamental interests of
the woman. This is, I take it, what the Court meant when it said : '"we do
not agree that, by adopting one theory of life, Texas may override the rights
of the pregnant woman that are at stake."
The Court could not, moreover, avoid itself striking the balance by relying
on a principle of restraint wherever public opinion is badly divided on a ques-
tion. It has occasionally followed that path. After Brown v. Board of Educa-
tion, it sustained a state miscegenation law presumably on this ground. But
the result was to weaken respect for the Court, not to strengthen it. The
Court has a responsibility for determining the reasonable implications of the
deeply held values, of our society whether or not much of the public is, at a
particular moment, prepared to accept these implications. It did so in Brown,
in thecase of reapportionment, in the case of school prayer, in the area of
confessions and searches and right to counsel, although it is by no means
clear that the public was in favor of any of these decisions. In some cases the
Congress even sought to overturn the decisions by statute or Constitutional
amendment. Yet they were, I believe, no only correct and desirable decisions
but decisions that the country has come to accept as correct and desirable.
V. : THE CLAIMS OF THE PBE-VIABLE FETUS DO NOT CREATE A
COMPELLING INTEREST
The final step of the Court's argument is, if I am right so far, forced upon
it by the prior steps. It had, in the final analysis, to decide whether there
were stages in the course of human development from a single fertilized egg
to birth nine months later at which a claim made by someone other than the
parent of the embrye or the fetus (even a claim made by the legislature of
a state) that the process be allowed to continue should override the right of
the woman and her doctor to decide. As we all know, the Court decided that
there were such stages. To be relatively precise, the Court held that two valid
state interests grow in importance over the time between conception and birth :
the interest in protecting the mother's health and the interest of the fetus.
I do not deny, and it seems to me the Court does not deny, that one could
reasonably attach great weight to the prospect of life from its earliest days
when we have little more than a handful of cells possessing a rich genetic
code. But much that we associate with the value of human life is not present
at the earliest stages. There is no feeling nor thought that we know of. There
is no feeling nor thought that we know of. There is no reciprocal relationship
to others that is reflected in need or love. There is no memory or fear.
It is crucial that a sharp line be drawn to show where human life begins
and ends if we are to maintain a respect for life without regard to differences
in Intelligence, age, looks, and experience. But surely the line can safely be
drawn well after the emergence of a fertilized egg. What most of us mean
by life, what most of us care about when we think of protecting life, is not
tin.' of the twelve or sixteen cells present on the third or fourth day after
pregnancy QOr is it present for some time thereafter.
It is worth considering what an alternative holding would have meant. A
stat.' would have heen free to forbid such forms of contraception as the IUD
or the morning after pill, a state that allowed no exception from its abortion
383
laws for pregnancies resulting from rape would be able constitutionally to re-
quire the mother to bear the child of the rapist for the oine months of preg-
nancy, to develop the attachments which arc as powerful as they are natural
in all species, and then to chouse between devoting much of the next two
decades of her life to a child she did not want or subjecting to the uncertain-
ties of adoption, foster care, or an orphanage what had grown in Dine months
of pregnancy and weeks after birth to be her flesh and blood. And the power
of the state to require these results would flow from do more than a claim
that the earliest division of cells following conception creates a being as en-
titled to life as a pregnant child of fourteen or a woman of forty.
The Supreme Court had to draw a line and it drew a line at the point at
which the fetus was viable if separated from the mother. Perhaps the line i-
further along than I or some of you would like it to be. but that is unlikely
to have great practical significance. The overwhelming proportion of abortions
will take place in the early months. What is crucial is the correctness of the
Courts' determination that there is an early stage at which the potential of
the embryo or fetus is not of the same importance as the realiy of the impact
on the woman bearing it. This determination was entirely justified.
CONCLUSION" : THE ALLOCATION OF CHOICE
It seems to me that the Court had to go as far as finding that human life
with all its claims to importance had not begun in the early days of the em-
bryo and the fetus. But in a very important sense, that it is not the conse-
quence of the decision. The consequence is that it is the moral judgment of
the mother and her doctor which determines when the life of the fetus shall
be considered so substantial as to prevent abortion within the limits that states
may impose under the recent Supreme Court opinion. I am not at all sure
how I feel about an abortion at the end of the six weeks or twenty weeks, but
I am sure that the answer depends on an immense number of factors ranging
from the willingness of the woman to have intercourse, through her age, her
family circumstances, her marital situation, and on and on. It is in light of
all these factors, which no statute can incorporate, that the Court has in
effect allocated the choice for the first five or six months after conception to
the mother and her doctor. It has not decided that the fetus has no moral
claim within this period but simply that the fetus has no legal claim that the
state can enforce. This allocation of choice among the mother, the state, and
the Court is, I believe, a wise solution to a deeply troublesome problem as
well as a solution wholly consistent with Constitutional precedent and rea-
soning.1
Senator Bath. I thank all of you rrentlemen; it has been very
impressive testimony.
Professor Heymann, you said that you thought if an amendment
such as one of these passed, it would deny the State legislatures the
right to differentiate between abortion and first degree murder.
Mr. Heymann. I did, Mr. Chairman. My basis for that is that the
amendments say that for purposes of the Fourteenth Amendment,
particularly the equal protection clause, from the moment of concep
tion, the fetus will be considered a person.
Xow, I take it that that was intended to say, subject to the difficul-
ties Professors Ely and Tribe raise, as to whether it really accom-
plishes it, that a State legislature could not impose a lesser penalty
for killing a fetus that for killing an adult, anymore than it could
impose a lesser penalty for killing an Eskimo than for killing a white
Caucasian. In other words. I take it that the intent of the amend-
ments is to say in all ways, fetuses are people from the moment oi
conception.
iFor a fuller discussion of my views. I would refer the Committer to the article I
wrote with Douglas Barzelay : "The Forest and the Trees: Roe v •»_'.'' •""'
Critics," Boston University Law Review. Volume 53, Number 4. July 1978. I i
fully suggest that it be incorporated in the record as part of my testimony.
384
Senator Bath. Professor Noonan, what do you say to that, sir?
Mr Noonan. Well, I am struck by the fact that one the one hand
Mr Heymann says this is going to make abortion murder, and on
the other hand, Professor Tribe says that it will accomplish nothing,
that it is ineffective to protect the fetus. m
Senator Bath. Well, as a legal scholar, do you feel this would take
•away the States' rights to differentiate between abortion and first
degree murder, as we now know it? #
Mr Noonan. Let me be candid, Senator, and say this, I have not
addressed myself to the precise consequences of these proposed
amendments because it seemd to me that they were starting points
in a legislative drafting process, and that they took what I think all
of us here in the academic legal world feel is rather an extreme
starting point. It did not seem to me realistic, I suppose that your
committee would end up with either one of these drafts as the one
that the committee would recommend to the Congress. I for one have
some difficulty in spending time analyzing something that seems to
me a paper starting point. I feel that my distinguished colleagues
have been shooting at paper tigers in shooting holes in these amend-
ments. I do not believe that they are the drafts that you will come
up with, and I Avould be happy to expand on what I think the par-
ticular wording of these amendments can be exposed to at least some
of the objections that have been made.
Senator Bayh. I must say I sat here and listened to your testimony
and I thought it was very powerful testimony, but if I had to stake
my life on it, I would stake my life on the fact that you supported
one of the two amendments.
Mr. Noonan. Well, Senator, I am supporting the idea of an
amendment very strongly, but I am not supporting the text of
either one of these amendments. I have had nothing to do with the
drafting process that has been criticised, and I would be happy to
submit to your committee in writing my idea of an amendment. But
I am not' here today to support the' text of either one of these
amendments.
Senator Bayh. When you have some time to give some thought to
that, we would be glad to have that.
Mr. Noonan. Yes, if you like. I can say to you right now that it
seems to me that the kind of amendment which implicitly is called
for — at the end of my statement where I say that amendments can-
not dot every "i" or deal with every contingency — is this: an amend-
ment that restores to the States the power to protect life and at the
same time prohibits the States and the Federal Government from
taking life. I think that will accomplish what an amendment can
accomplish, that is an education in the values at stake.
The only amendment, as you know, which operates directly on
the people is the Thirteenth Amendment, prohibiting slavery. The
form of these amendments, which is the Thirteenth Amendment form,
seems to me inappropriate for this kind of issue.
I was tremendously heartened when I heard the invocation of his-
tory by Professor Heymann. If that is the way people of his point
of view in the legal world are thinking, you will have tremendous
support for an amendment which restores to the States the powers
385
that they have had for 150 years, which the Supreme Court said were
inconsistent with ordered liberty. It restores it to them and at the
same time adds — and I think this is an appropriate reaction now — a
specific provision that the State itself shall not be in the business of
taking life.
Senator Bath. Could you please explain further how the Supreme
Court decision puts the State in the business of taking life.
Mr. Nooxax. Well, the lower courts — I am just dealing with what
a variety of Federal judges from Boston to San Francisco have
done — have taken Roe and Doe to say that here is a constitutional
right which the State must finance. It is an extraordinary kind of
constitutional right. There are not many which create a right to
State funds. But that is the way the decisions have gone.
If you have a hospital providing surgical services financed by
public funds, you have got to provide abortion services despite the
conscience of the people of the State that says abortion services are
against our conscience. That is the way the Federal Court in Boston
decided. And it has gone right through the country. I have the eases
in my fuller memorandum submitted to your committee. We now
have a body of law interpreting Uoe and Doe that mandates public
funding of abortion, against the consciences of, I would suppose, the
majority of people in the majority of States.
How do we escape it ? We cannot, without the amendment.
Senator Bath. The way I read those decisions is based on the fact
that if you establish a standard to change the way things have been
established before, then not to permit the financing of this to those
who are in the very low end of the economic spectrum would be to
violate equal protection.
Mr. Xooxax. I understand that is the basis, but it stems from, first
of all, reading the word "liberty" in Fourteenth Amendment to mean
liberty to have an abortion, and then goes on from there, and saying
this is
Senator Bayh. Is it possible for you to separate your opposition to
the decision and zero in on the wisdom of that particular part i
I mean, is that based on good law or not?
Mr. Xooxax. I think given the premises — I think given those two
decisions — the Federal judges have not acted improperly. I think
they have before them what their superiors on the Supreme Courts
have set down. They did not have any choice.
So, I say to you, Senator, and I think it is of some interest to
every senator concerned with the Federal Government's role in health
services, it seems to me highly doubtful that you are going to be
able to enact a bill which provides Federal health services without
the courts coming in and saying that those services must include
abortion services; so that you will have the Federal Government
involved in abortion on a massive scale.
You may have seen the statement from HEW, which Senator Buck-
ley commented on this morning: 278,000 abortions are now being
financed by medicare, or the Federal Government is now a partner in
helping about a third of the abortions in this country. That is a
pretty large partnership. And that is under those court rulings inter-
preting the Supreme Court.
386
Senator Bath. I think you meant medicaid instead of medicare.
Mr. Xooxax. Medicaid, probably.
Senator Bath.
You said, Professor Noonan, that there were distinctions in the
law now relative to the way the fetus and persons were treated, and
you mentioned Social Security. Could you give us an example of
that, please?
Mr. Noonan. There are a number of lower court decisions. In the
fuller memorandum I cited Doe v. Luckard, from Pennsylvania; and
I think there must be half a dozen now. with some conflict in the
district courts, but the majority of them holding that a fetus is an
individual within the term "individual'5 in the Social Security Act,
so the payments are not only to the mother, but to the fetus as an
individual. I for one find it interesting that the legal mind is so con-
stituted that it has not troubled the judges to say, oh, yes, a fetus is
an individual under this statute, he or she is not an individual
under our Constitution. Congress can make him or her an individual
for statutory purposes for a benefit — for a benefit, but not to protect
the life.
I feel strongly. Senator Bayh, that the way we lawyers think
accustoms us to thinking about fictions as though we could do any-
thing with them, and yet there comes a point when you have to say,
enough of fictions, let us look at the facts.
When the courts give up the facts, then we come to you and say,
let us let the people put in such a provision so that the facts may be
looked at.
Mr. Heckman. I would like to start with what would be a juris-
prudential question for all of you. and it is something which Pro-
fessor Ely alluded to : Under what circumstances is it appropriate
for the Congress and the legislatures in the Several States to con-
sider a constitutional amendment overturning a specific Supreme
Court decision? It has been done twice, perhaps three times. But
is it simply whenever two-thirds of the Members of Congress and
three-fourths of the states believe it would be appropriate, or is there
some other way— perhaps along the lines that Professor Ely sug-
gested— that some decisions are more subject to constitutional amend-
ment than others.
Would anvbodv care to volunteer to start on that one? Professor
Ely?
Mr. Ely. Bight. I would just reiterate what I said, and like to
respond to one thing Professor Tribe said, which relates to the ques-
tion.
It seems to me that this is a decision — although I think Professor
Tribe and Hey m ami should be heard on this — whose reversal would
not carry a host of unforeseeable implications for other doctrine. It
would be in the latter circumstances that T would think that one who
fell that the result was wrong and immoral should nonetheless hesi-
tate to amend the Constitution. T do not see this as such an occasion,
nor do I see it as Professor Tribe has suggested, as one that inevit-
ably implicates religious division and tension. I personally do not
have a view, to be quite honest, on when life begins. To me it seems
in many respects an unanswerable question. But I do not think that
387
is relevant. I do have the view that a fetus, if unaborted, will in all
likelihood will become a person, and that is a view that everyone
must accept because it is true regardless of his or her religious pref-
erences, and it is because of that, that completely non religious de-
fense of abortion legislation, one that does not implicate religious
views, that I think the decision in Roe against "Wade was wrong.
And I also would carry over and say that it is no inappropriate for
the Constitution to be amended, because the defense of antiabortioii
legslation simply does not inherently or inevitably force one to com-
mit himself on the question of when life begins.
Mr. Heckmax. Would there be a distinction between a decision
that was based on a specific provision of the Constitution — the first
amendment, the fourth amendment — where you would regard it as
much more questionable as to whether it would be appropriate to
amend the Constitution to overturn such a decision?
Mr. Ely. I am not sure that would be the distinction. I think the
distinction, rather, would be in terms of whether the offending or
resented decision appears somehow at the center of an entire body
of constitutional doctrine rather than being sort of an isolated epi-
sode that has no perceivable close kin, and I see this as that.
No, I do not think that would be the distinction. For example,
the equal protection clause is a rather general provision, and yet I
would say one would hesitate, and rightly hesitate, to tamper with it
because of one decision which offends somebody. So, I guess I can-
not help you, Mr. Heckman. I do not think it really relates to the
provision involved.
Mr. Tribe. Mr. Heckman.
Mr. Heckmax. Yes. sir.
Mr. Tribe. I think it is useful to say that, although one might
agree with Professor Ely's formulation of the standard, one could
deeply disagree with its application in this case. I suppose I too
would say, that a decision which stands alone, one that can be neatly
and cleanly excised by a precise amendment which disturbs little
else in the constitutional firmament, is ripe for overruling by amend-
ment when enough people feel deeply offended by it. It sems to me
that Roe v. Wtule is anything but that kind of decision, however I
fully agree with Professor Heymann that it is one of a long line of
decisions going back some 50 years affirming the values of personal
and family privacy and automony. So, at a minimum, any choice to
override Roe could affect great many other areas, including family
choice with respect to contraception and family choice with respect
to education. But even if that were not true. I think the most sig-
nificant single point is the inability of the defenders of the so-called
"right to life" amendment to agree upon any form of words; that
is, we are talking about a brooding omnipresence in the sky. an
amendment, that lias not been written yet. I would submit that any
attempt to write one that would accomplish the intended pur]
while achieving any kind of meaningful consensus would have to
wreak havoc with constitutional doctrine in numerous areas.
As I have tried to show, for example, trying to make these amend-
ments serve to overrule Roe v. 1JW>' would require stretching out
of shape both the due process clause and the equal protection clan
388
It may be that Professor Ely has a way of resolving the question
for himself without confronting the intense controversy which
creates so serious a problem of drafting an appropriate amendment,
but I would submit that the Nation as a whole does not.
Mr. Xooxax. Could I comment \
Mr. Heckman. Professor Noonan; yes, sir.
Mr. Xooxax. It does seem to me that — and again we may be con-
fronted with straw men when we are told this will affect many other
areas of constitutional decisionmaking— it does seem to me that the
task of vonr committee is to draft the amendment, You are the ap-
propriate organ, not private individuals. We are engaged in a process,
and these comments are terribly helpful in indicating what are the
limits of the process.
Xow. I do think these decisions stand out and can be isolated. It
would seem to me that what Professor Heymann was omitting from
the standard he was using was Holmes' phrase fundamental prin-
ciples "as understood by the traditions of our people and our law."
These statutes on teaching German, and so forth, were a preposterous
invasion of what had been well established rights, such as the right
of the parent to educate his child. They were a serious departure
from our traditions. Just the opposite is true here. Our traditions
and our law protected the fetus, protected it not in the same way
as an adult human, but effectively protected it. And the Court, of
course, has just turned that tradition and law on its head.
Mr. Heckman. Professor Heymann.
Mr. Heymann. I think what 1 am about to say, Mr. Heckman, has
been said, but in a different way. It relates closely to what John
Noonan just said.
A constitutional interpretation or amendment seems to me to have
a dimension of breadth. The Constitution basically ought to be
agreed to by as large a percentage of the population as possible. It
ought to have broad agreement ; that is why constitutional amend-
ments require three-quarters of the States. But the development of
our Constitution also has a leyel of depth, it also has a dimension
of death. In some areas the very meaning of our government has
been explored over time on a case-by-case basis by a changing Su-
preme Court. To say that whenever you could get three-quarters of
the States within a 3-year or a 7-year period to agree to an amend-
ment it would be a good thing, would seem to me to be wrong, be-
cause you would be throwing away the potential for a development
of our government in a thoughtful, systematic, incremental way by
constitutional interpretation. And of course, it is at that point that
you get to John Ely's and Larry Tribe's notion that a lot of things
may lie interwoven when you try to change a single provision. John
asked, is this true in this case; Larry says it is, and I believe it is.
Put I think it is the same point made in a different way, and it is
the same point that I could respond to John Noonan with. I would
say it really is not exclusively a question of whether three-quarters
of the States would like an abortion amendment. The question is also
whether the abortion amendment fits into a fabric that was de-
veloped over 50 years and embraced by Holmes, Brandeis, Stone,
Cardozo, Frankfurter. Harlan. Those men were working hard and
thinking hard.
389
Mr. Heck max. The point T was trying to get al : [s there Borne in-
dependent reason in order to protect our tripartite institutions, that
Congress and the States should probably always allow the Supreme
Court to be the final word? In other words, we should really never
consider a constitutional amendment to directly overturn a specific
decision.
Mr. Heymaxx. I would not say that.
Mr. Tribe. I do not know of anyone who would say that. I would
not, anyway.
Mr. Heckmax. Perhaps we ought to explore just a little bit more
specifically the case law — and I guess this is probably directed to
Professor Tribe and Professor Heymann.
Taking the Court at its word and relying on the line of cases
which began with Meyer and concerned the family, the thing that
I guess causes me some trouble is that those cases do make sense,
right up through Griswold; but then with the Eisenstadt, New Baird
case, where they struck down the Massachusetts law which banned
the sale of contraceptives to unmarried persons, and in Roe and Doe
it seems to me there is a quantitative distinction there that you are
no longer talking exclusively about the family. For example, how
would you analyze a State abortion statute which permitted abor-
tions for married couples but banned them for unmarried couples?
Mr. Tribe. Well, the way I suppose I would deal with the ques-
tion is to say that the Court's concern for protecting family would
itself be a rigidifying and an inflexible concern, if the only appro-
priate definition of family was the traditional one passed down to
us from the time of the Founders. Tn a number of decisions outside
this tradition — decisions dealing with Food Stamps and the neces-
sity of making them available even to households of unrelated per-
sons living together for example — the Court has stressed that a group
of people living together intimately would be entitled to the pro-
tections of family quite apart from the question of whether they tit
the usual nuclear model.
Xow, in the more recent decisions that begin with Meyer and
Pierce and extend through Eisenstadt, and now Roe v. Wade, the
Court has not really been forced to confront the question of whether
family rights extend even into the untraditional family, because the
legislation in question has typically been overbroad; that is, it has
sought to take the right away from families of a more traditional
sort, as well as infringing on less traditional concepts. But, if it
were confronted with that issue. I think the Court would have to
say that for the State to be deciding what was an appropriate group-
ing of persons to constitute a family for purposes of making repro-
ductive decisions about who will and who will not be a member of
the group, would itself be a profound intrusion of the freedom of
association protected under the 1st amendment and applied to the
States through the 14th. So I think the basic answer is that the
decisions have not had to face your question — except for procedural
reasons of a rather detailed sort in Eisenstadt — and. if they had to
face it, there would be additional constitutional reasons for denying
the States the power to make their own detailed choices about what
kinds of families are acceptable and what kinds are not.
390
Mr. Heckman. But in your view, the fundamental interest here
is not the States' interest in the protection of the institution of
marriage? .
Mr. Tribe. In my view, the fundamental interest to otiset against
the interest of protecting the fetus is a dual one: the interest in
avoiding the involvement of church and state, and the interest in
protcting the right of the individual to make choices affecting the
development of his or her own family — including the choice of
whether there shall be another member in that family.
Mr. Heckman. Professor Noonan.
Mr. Noonan. I think I would like to comment on Professor Tribe.
As vou know. I have submitted another article — I do not know
whether it is necessary to formally ask inclusion in the record when
I submitted it with tlie written statement, but if it is necessary, may
I do so? On the family and the Supreme Court?
Mr. Heckman. Yes, we will do so.
Mr. Noonan. I considered some of the cases that you referred to,
and it does seem to me you have a tradition of Supreme Court
opinions — all are 3 or possibly 4 years old — which have taken a very
different approach to marriage and the family. Now, marriage is
privileged in our law and it always has been; our law is honey-
combed with privileges for a marriage, and the State has time and
time again said this is the union which we are going to distinguish
as a famly union, and we are going to discriminate against the
unmarried. The Internal Revenue Code is a famous starting point
for that kind of discrimination.
Xow, I rather doubt that the courts are going to say that the In-
ternal Revenue Code is unconstitutional, that the State cannot pick
out the nuclear marriage as the one privileged unit. I consider the
Food Stamps case an aberration. And I think what you have here is
again a group — it may have even gotten down to five Justices —
applying what they thought was appropriate social legislation and
throwing out an act of Congress or a State statute and really sub-
stituting their own moral views or what they thought were good
moral views for the actions of the appropriate bodies that had dealt
with these matters. And I do think that your action on an amend-
ment would prick the bubble, pick out the worst excess, but it is an
excess that emerges from a number of cases where the Court has
disregarded our traditions, the traditions of our people and our law,
and treated marriage as just another association which cannot be
privileged without violating the equal protection clause of the Con-
stitution.
Mr. Heckman. Professor Heymann?
Mr. Heymann. I take it you are probably aware of them. But let
me remind you, Mr. Heckman. of the Supreme Court's special treat-
ment of the light to divorce and the rights of illegitimate children,
both of which they have put in the family category. And I think
that is directly your question.
Xow. in other words, in the same period of time as the matter of
abortion and contraception came up, the Supreme Court has handled
the question of divorce and illegitimate children and said these are
familial matters as to which the Court cannot defer to State legis-
lation without a strong reason.
391
Mr. Heckman. Professor Tribe, I would like to explore just for
a minute the idea which you mentioned and in which you <_r<> into
more detail in your article. And that is the establishment clause issue.
It is not clear to me exactly how that fits in here. I take it you
would not go so far as to say that prior to Roe a State which pro-
hibited abortion by statute, because of the fact that most of the
people or a majority of the people in the State were of the religious
view that had opposition to abortion as basic tenet, that statute it-
self is not subject to constituional attack on the basis of the estab-
lishment?
Mr. Tribe. I am not sure I understand your question. Mr. Heck-
man. You say before Roe. AVoll if the attack had been properly
couched, had it reached the Court, I assume it would have come out
as it did in Roe and the answer is I do think it would have been
subject to attack, not simply because there was religious view on
the question, because the doctrine I would defend is one that could
be very rarely invoked.
It is a doctrine which says that when an area, for reasons in-
trinsic to its character, and I will say a word in a minute about
what I mean by that, has become so religiously divisive that there
becomes no practical way of resolving it without taking sides on
religiously disputed issues, then the area is not constitutionally fit
for prohibitive legislation in the absence of some compelling secular
justification.
Now, when I say intrinsically, what I really have in mind is that
it is not just an accident that religious views became profoundly
involved in the abortion debate. An American opinion began to place
more and more weight on the importance of reproductive autonomy,
of a woman's ability to make her own decision about whether to have
a child, it became insufficient in defending abortion prohibitions to
simply say as John Ely says, incontrovertibly this being will some-
day be a human being.
The inevitable pressure was to demand more of that, to demand an
additional assertion that there is not only a potential life here, but
what we have is already a full human being in a spiritual sense. And
so as the debate was inevitably shifted to the point where only a
religious assertion became acceptable as a justification for intrud-
ing into the autonomy of a woman, the matter then became intrinsic-
ally divisive in religious terms.
Now, needless to say that in itself is not enough to say that the
prohibition is unconstitutional ; that is, if there could be a compelling
demonstration, for example, that permitting abortions today will lead
to infanticide tomorrow and the murder of a-year-old children the
next day I would be the first to say that there is a universal agree-
ment in terms of values that do not divide the society religiously
about the importance of the objective of avoiding infanticide and
murder and if that could be shown it would follow despite the re-
ligiously divisive character of abortion as an issue, prohibition would
be permissible.
But it seems to me in this area that kind of argument cannot be
made and one is left with the pure case of an intrinsically religiously
involved question in an area of important and traditional personal
392
autonomy and it is only for that combination of reasons that I would
say in the case you hypothesized that a challenge to that statute
should have succeeded even before Roe v. Wade.
Mr. Heckman. Professor Noonan, do you have any views on that
doctrine ?
Mr. Noonan. Yes. It seems to me that you really overlook the fact
that our basic views of persons as our basic view of government
all depend on what I call mythic moral perception, perception of
the structure of the universe and the proper rules of conduct in
that universe for ultimate happiness.
And to suppose that those mythic moral perceptions are uniquely
religious, it seems to me. is just mistaken. Everyone has them,
whether they are secularists or humanists or religionists.
It also seems to me a mistake to suppose they are beyond contro-
versy, or that the American people have never been in controversy
about them. It seems to me, for example, that the whole history of
the controversy over slavery was that a substantial number of Chris-
tians said the black man 'and black woman are our brothers and
sisters and we must give them the rights of other Americans. That
religiously motivated view would have produced, if they had had
the political power to do so, a movement to amend the Constitution
to correct Dred Scott v. Sanford before ehe Civil War.
And I really cannot believe that Professor Tribe, if he had been
back there, would have said that you are giving your views from a
religious presupposition which is controversial, and therefore we can-
not go ahead with is.
I will say, not in reference to the discussion today, but more gen-
erally, that those who have introduced religious controversy into
this matter, have been those who have been advocates of abortion.
It seems to me a kind of a bootstrap argument in general to say we
made it controversial and therefore because we feel it is a religious
issue, and accuse our opponents of carrying on some doctrine, why
then you cannot do anything about it.
It seems to me the height of unfairness. It seems to me the argu-
ment is divorcible from any religious presuppositions of a dogmatic
secterian character.
One is invited to look at the biological evidence and see how one
responds. Then we have courts saying I will not look at that kind of
evidence; I cannot. The Supreme Court has said it is irrelevant.
Mr. Tribe. I think that it is really not helpful to characterize either
side of the debate in this very difficult issue in terms of who threw
the ball first, or of who is to blame. The question really is not one of
fault. We have an historical reality, to talk of looking at facts, about
the injection of religious considerations in a profound and pervasive
way in this entire dispute.
The mere fact that religion was also involved in the opposition to
slavery seems to me not to create a sound parallel because it was
never widely thought that the real justification for slavery was that
blacks were not really human beings.
Much of the debate was conducted in some depressingly prag-
matic ways, focusing on the economic impact of the institution one
way or the other; it was not the case in that situation, as it is here,
393
that the debate inevitably became one taking the rather mysterious
form of when ensoulment occurs, when the human soul is formed,
when truly, human life is initiated.
Now I myself would not resolve the abortion controversy in those
terms. I agree with a number of philosophers who think that the
moral solution may have nothing to do with one's answer to the
perhaps unanswerable question of when human life begins. But it
is really nobody's fault that this is the form the controversy has
now quite inescapably taken in legislatures.
And it is this reality, coupled with the important tradition of
personal autonomy, that makes this a singularly inappropriate area
for governmental resolution.
Mr. Heckman. Are there any other issues you could think of off-
hand that would fall into this?
Mr. Tribe. I think contraception probably would. I can think of
no others that clearly would, although I do not exclude the possi-
bility there are other issues of this character.
Mr. Heckmax. This doctrine that you suggest is not one that has
a good deal of precedent behind it at this point.
Mr. Tribe. I think that a number of decisions under the establish-
ment clause are very hard to understand without this doctrine. The
Supreme Court, in some of the school aid cases — where it has car-
ried the doctrine farther than I would — has repeatedly urged the
importance of avoiding religious political entanglement and frag-
mentation as a basis for striking down certain forms of governmental
aid.
Justice Harlan, in a 1970 opinion delivered in a case involving the
constitutionality of tax exemptions for religious institutions, offered
the view that abortion and birth control were paradigm instances of
areas in which the danger of political — religious fragmentation and
involvement were at their highest.
And it was his view of the establishment clause, as it has been the
view of a number of scholars, that one of the major values the clause
was designed to serve was avoiding that kind of entanglement and
friction.
Mr. Heckmax. Professor Ely ?
Mr. Ely. Another value it is designed to serve and I think the
one with the most clear roots in precedent, arises from the realiza-
tion that there are two religious clauses in the first amendment.
One permitting establishment, the other protecting free exercise.
Now, they lead to some rather paradoxical questions, trying to
walk a line between the two. and thus the Court has indicated re-
peatedly, not simply a concurrence by one or two Justices, that
what they mean together is that on the subject of religion the state
is supposed to be neutral.
My first difficulty with Professor Tribe's theory, which I did not
mention before, was that it seems to me the negation of a neutral
solution to say that the moment a sizable body of religiously in-
spired opinion begins to assert itself in the legislative arena, that
fact should mean that legislation is impossible on the subject.
It seems to me that so long as religiously inspired views are com-
peting with others, that the only thing to 'do is to permit the legis-
lation to go forward.
394
Second, as I said before, even assuming I am wrong about that
and that it is neutral to say you cannot legislate the moment we find
that religious groups are interested in an issue, I hear Professor
Tribe's words but I somehow am not convinced that this is an issue
on which religion is inherently involved. Many people defend anti-
abortion legislation without taking any stand one way or another
on whether the fetus is a person. •■
Thev say, "I do not care. All I know is it will be a person, and
I want to give it that opportunity.'' I am not saying that I endorse
that Indeed, to a large extent I do not. If we had to have a uni-
form Federal solution of this question one way or the other I would
prefer the Supreme Court solution if I had to vote it up or down. I
find it a very close moral issue but I think that I would go with the
Supreme Court as a political matter rather than with what I take to
be the thrust of these amendments.
But the point is we are not faced with that choice and the ques-
tion seems to me so excrutiatingly close, it is, as I said before, one
that ought to be left up to individual State legislatures.
Mr. Heck max. That is a distinction I wanted to ask you about.
Why do vou feel it is uniquely appropriate for one State to have
the right 'to differentiate from the others? Because these legislators
more closelv represent the feelings of smaller groups of people?
Mr. Ely. I think that puts the shoe on the wrong foot, Mr. Heck-
man. I think the question ought to be why is it uniquely appropriate
to be controlled by the Central Government.
And the two reasons I cannot see that the case has been made that
it is are first, that there is nothing Federal about it and second, that
it is a terribly close moral question on which I would think we ought
to give legislatures freedom to differ.
Mr. Heckmax. Professor Noonan?
Mr. Noonan. I would like to comment on Professor Tribe's posi-
tion, because I thought his article in the "Harvard Law Review"
was a brilliant effort — I am frank to say "effort" — in that it was
directed to defending these decisions by a brilliant ad hoc construc-
tion attempting to put on general grounds of religious disestablish-
ment what I thought was a very special decision of the Court.
When lie said that. I looked at what the Court has done. The
Court, says Texas and Georgia cannot adopt a theory of life and
impose that on individual people in their States. But how disin-
genuous of the Court not to see that it has imposed a theory of life
on every State and every person !
Mr. Heckmax. If I could interrupt you there? That is a question
I wanted to ask Professor Tribe.
[s not the theory of life as the Court calls it. which is a bio-
logical factual question, one that legislators are more qualified to
answer than courts?
Mr. Tribe. Mr. Ifeckman, I do not agree that the moral dilemma
here can be poured into a factual mold. It seems to me wrong to
suppose that knowing when the fetus starts to move, when the brain
begins to generate electrical waves, will tell us anything about the
appropriate moral solution of the conflict between the many values
and interests involved. Or. more importantly, that it will tell us
anything about who should decide.
395
On that issue, I start with the proposition with which John Ely
concludes: that it is an excrutiatingly difficult moral question. On
that question, it does not help me to know that modern biology does
or does not discover certain aspects of the fetus at an early stage.
What the excrutiating moral difficulty leads me to ask is this:
why do we select State legislatures as the appropriate decision-
makers when the most intimately involved persons arc obviously the
immediate family, and when the religious question has become so
central in the debate \
Why does one not conclude instead that the appropriate decision-
maker is the even more local unit of the family \
At that level, although I appreciate Professor Noonams compli-
ment about my article's brilliance. I guess I have to say that, al-
though I did not think it was particularly brilliant. 1 thought it was
anything but novel or unprecedented. In a large number of cases, the
Court has begun to fashion a doctrine that makes something of a
coherent whole of the twin religion clauses of the first amendment ;
and that whole is not simply one of neutrality.
As the Supreme Court has said in a number of cases, including
some cases that I know Professor Ely and I disagree about, the
State has not only an obligation to be neutral, but also an obliga-
tion to take certain affirmative steps which avoid the particular
evils against which the religion clauses were directed. One of those
evils is the evil of involvement of church and State; that is simply
provides one final argument for the proposition that the decision
ought not to be made by legislators.
Now, at that point John Xoonan asks : Isn't the Court itself, as an
agency of Government, making a decision, imposing a theory of life
on everybody, something it says that the States of Texas and Georgia
cannot do?
I think that is a misconstruction of what the Court said. What
it said that individuals, religious groups, political bodies may have
profoundly different views about when it is appropriate to treat
someone fully as a human beng. but that no State can impose one
such view on the family and on the woman, any more than the
Court itself could impose such a view. All the Court could do is
conclude that at some sufficiently late point in pregnancy—when
everyone agrees that there is no practical way of distinguishing a
fetus from an infant— something that happens when the fetus can
survive independently' — vou no longer need a "theory" of life.
At that point, it 'is no longer a matter of controversy; at that
point, the State's power to protect beings that are agreed by every-
one to be human beings includes the power to prevent abortion.
And so the Supreme Court's line of viability reflects no independent
Federal theory of when life begins. The Court was not so arrogant
as to urge any such theory; it simply recognized that, before the
point of viability, the controversy is too intense to make govern-
mental theorizing an appropriate basis for intrusion upon human
autonomy.
Mr. Heckmax. Any other comments?
Gentlemen, we thank vou very much for being here. 1 apologize
for Senator's Bayh's absence, but he did make it through for an
hour and he is ill.
396
We will recess the hearing, subject to the call of the Chair.
Thank you again.
[Whereupon, at 12:40 p.m., the hearing was recessed, subject to
the call of the Chair.]
Additional Statements and Materials
Department of State,
Agency for International Development,
Washington, D.C., August 27, 1974.
Hon. Birch Bayh,
U.S. Senate,
Washington, B.C.
Dear Senator Bayh : This letter will confirm the information provided by
Dr. Willard H. Boynton, Deputy Director, Office of Population, to Mr. Heck-
man by telephone concerning A.I.D. policy regarding condoms.
One of the important activities carried out by A.I.D. to implement the Con-
gressional mandate concerning population is the supply of contraceptives to
developing country programs at the request of their Government. The requests
for condoms from twenty-two countries assisted bilaterally have grown from
81,00 gross in FY 1972 to 296,00 gross in FY 1973 to 3.5 million gross in FY
1974. This rapid increase in condom requirements is due largely to program
expansion, but partially to the increased acceptability of lubricated and colored
condoms currently supplied by A.I.D.
Colored condoms have been manufactured by the Japanese for about ten
years. Some two or three years ago, U.S. manufacturers began to make colored
condoms. They have proved to be so popular, both in the U.S. domestic mar-
ket and in LDC countries, that the supply situation is now critical.
As you might imagine, there has been some humor attached to the subject
of colored condoms, but our research has shown that color has a very positive
effect on acceptance and usage.
Let me assure you that the only colored condoms supplied by A.I.D. are the
standard commercial product of U.S. manufacturers. The colors available are
green, pink, blue, black or red and they are all of a solid color. We have no
intention or plans to purchase condoms which combine colors.
Thank you for bringing this matter to our attention. Please let us know
when this office can be of assistance.
Matthew J. Harvey,
Assistant Administrator for Legislative Affairs.
Tri-County Coalition for the Right To Choose "Abortion"
We, the concerned citizens of Columbiana, Mahoning and Trumbull Counties
of Ohio, in agreement with the national policy statements of the numerous
religious, social service, professional and political organizations which endorse
the pro-legal position on abortion, have joined in the Coalition for the Right
to Choose, to oppose the attempts being made to overturn the January 22, 1973
Supreme Court decision on abortion rights.
Believing that human life is of qualitive, as well as quantitive, value, we
feel that the abortion decision must be weighed in the light of a total situation
and that which would most conserve human and spiritual values.
We oppose, therefore, any legislation which would prohibit, restrict, or other-
wise control abortion beyond the guidance of the Supreme Court decision, es-
pecially the proposed Constitutional Amendments, as being:
1. Unenforceable — previous prohibitive legislation at the state level drove
abortion underground. It did not eliminate it.
2. Discriminatory — the well-to-do have always, and will always, be able to
obtain abortions, safely and easily.
3. A Threat to Separation of Church and State — the rnajor institution financ-
ing the drive to outlaw abortion is the Roman Catholic Church, religious tenets
dictating their position.
4. Contrary to Majority Opinion — polls indicate that most people, including
Catholics, are in favor of abortion rights.
f>. 1 Denial of the Constitutional Rights of Women — the right of privacy —
to choose, or not choose, an abortion; the right to avoid doing herself harm* by
397
continuing a dangerous pregnancy ; the right to adequate medical care ; the
right to the use of certain contraceptives; and the right to lift-, itself, under the
Helms-Hogan amendment.
6. A Constitutional Pcrogativc — for the suspension of the civil and personal
rights of a person who has committed no crime.
7. An Implement of Legal Chaos — fetal tax deductions; funerals; conception
certificates; investigation, possibly prosecution, for spontaneous abortions; gov-
ernment control and monthly inspection of all women of childbearing age; in-
heritance tax on the estate of a fetus which is spontaneously aborted, and
so on.
In summary, we are unalterably opposed to any attempts to subvert the
right to choose — or not choose — an abortion, viewing these efforts as Inhumane.
immoral and not in the best interests of the general welfare. In anticipation
of the day when safe, simple and effective contraceptive measures are within
the ken of all, we look forward to the natural demise of all but a very few
reasons for seeking an abortion.
398
HANDBOOK
for the
RIGHT TO CHOOSE
Compiled for TRI COUNTY COALITION:
Trumbull
Mahoning
Columbiana
Counties of Ohio
Edited by:
Merrill G. Leonard
p. O. Box 136
Fowler, Ohio 44418
-1974-
399
HANDBOOK
for the
RIGHT TO CHOOSE
Table of Contents —
Page
Preface 2
Religious History of Abortion Rights (Catholic) 3
Secular History of Abortion Rights . . . * **
Summary of Test Case (June »73 Good Housekeeping) ... 5
The Supreme Court Decision 6
Legislative Attempts to Reverse the Decision 7
The Position of Right-to-Choose 8
Our Answers to Right- to-Life 1°
Statement of RTC, for Sen . Bayh ■ s Committee 1^
Guide Lines for Speakers 15
Guide Lines for Writers 1°
Sample Letters • 18
Guide Lines for Visitors
2C
22
Constitutional Changes
Statistical Data •
26
400
PREFACE
On January 22, 1973, the Supreme Court ruled that the decision to term-
inate a pregnancy during the first three months is a private matter between
a woman and her doctcr. The same is true of the second three months, except
that a state may regulate procedure in the interest of maternal health.
This is the law of the land.
But this landmark decision has resulted in almost unbelievable emtional
turmoil. Bo»ks have been written; pictures have been published; facts have
been distorted. And now, a crusade has been mounted to try to reverse the
Court's decision.
Legal abortion means state neutrality on the abortion decision, a neu-
trality that allows for differences in individual conscience. Those whose
conscience does n»t harmonize with abortion are free to reject the service.
Those who face an unwanted pregnancy and wish to terminate it are free to
get medical assistance under safe, sanitary conditions. They are freed of
the need to seek illegal, back-alley emergency help. Legal abortion coerces
no one and establishes equal freedom cf choice for all. The principle of
state neutrality was expressed once by the late Cardinal Cushing cf Boston
who said, (speaking of birth control), "Catholics do net need the support
of civil law to be faithful to their own religious convictions, and they do
not seek to impose by law their moral views on other members of society."
We have valuable facts and figures from states that legalized abortion
several years ago. For example, in New York City, the record shows a decline
in:
Maternal deaths
8S!B o^S&ci<nb£r£hsbungled " abortions
Abandoned infants
Cost of public welfare
and, in addition, the saving of untold misery for many thousands of women.
No one deals with abortion lightly. No one recommends abortion as a
method of birth control. Surely all of us dream of a world where every
f-hild is a wanted child, born to the security of loving parents. We are
all repulsed and sickened when we see battered children, beanten senseless
by parents who are in a situation where they can't cope, hence vent their
angers, fears, and frustration on their helpless children.
The citizen's job is to provide himself with all the facts and informa-
tion pertinent to this legislative issue. To help in this task, this booklet
has been compiled.
-2-
401
INTRODUCTION
"Please don't get into the emotional battle over abortion. Just try
to stick to facts and logic . "
This has been the admonition to our writers; the guiding policy in
preparing this Handbook.
But we are emotionally moved, as much or more than the so-called
Right- to-Life people. They focus their emotion on the plight of the poor
"baby"— as they insist on calling the new life at any stage of gestation—
and if they would confine their emotion to the case of late-term abortion,
we would tend to agree with them.
For we, too, especially dislike abortion as it approaches infanticide.
But we do not confine our tears to this alone. We are also, yes, especially
worried about the infant after it is born: about the horrors of letHal
congenital disease, for example. I saw one such myself; an infant with a
congenital bone deficiency. The bones were brittle: "like egg shells" ; and
knowledgeable people confided that a hundred bones were broken, just in the
process of being born. "It will die within a week" the doctors said, but no:
its life dragged on for an incredible eleven months. I saw the baby only
once, but that one brief glance at the agonized little face was burned into
my memory for a lifetime.
Yes, we worry about this kind of suffering; and about many other things
that are related in their inhumanity. We worry about women who are trapped
in a terrible dilemma by a pregnancy they cannot endure; about children who
die from their parents abuse; about men, women and children in far-off lands
who die in war from the horrible weapon called Napalm; and about our own
young men who are also the victims of war.
We think this will never be a better world, until we all learn to be
concerned about the suffering of mankind, and indeed, of all earth's sentient
creatures .
Merrill G. Leonard
October, 1974
-2A-
402
THE CASE
AGAINST MAKING ABORTION A CRIME
by Sydney J. Harris
Typical of the scores of letters I have received about my column on
abortion is one that begins: "I can hardly believe that a man of your
intelligence would be in favor of abortion."
This is how people oversimplify a complex situation. I am not "in
favor" of abortion. I don't think it's a good thing. It may very likely
be "immoral", however we define that word. What I am against is making
abortion a crime.
SUPPOSE I came out, 40 years ago, against Prohibition. People would
write in to say that I was "in favor" of liquor. I am not at all in favor
of liquor; as far as I'm concerned, all of it could be poured into the
Pacific Ocean tomorrow morning, and the world would be a better place for
it.
But this doesn't mean I think we should have laws making the drinking
of alcoholic beverages a crime. Not everything that may be bad for us, or
even immoral, should be made against the law.
Abortion is an unhappy solution, but all the alternative solutions
are worse, to my mind. Making abortion a crime does not stop it, or even
reduce it. All it does is make it expensive, dirty, underhanded, hypo-
critical, dangerous, and class-discriminatory.
IF THE SUBJECT is left to the discretion of the state legislatures, as
some have suggested, adjacent states will have different abortion laws; so
those who can afford it will travel across a state line to have an abortion,
while those who can't won't. This makes a mockery of any law.
There is no point in passing a law that cannot and will not be enforced,
and furthermore, that provides widespread opportunities for graft, corruption,
and connivance, as did Prohibition.
AS TO THE MATTER of "life", and whether the fetus is "alive", this is a
thorny metaphysical as well as biological question that no one can answer
with any assurance. What strikes me as somewhat incongruous about the "right
to life" people is their intense concern with the fetus, coupled with their
apparent indifference to life after the womb — with their negligible efforts
to reduce poverty at home, starvation abroad, and war throughout the world.
If life itself is as precious as all that, one would expect these people
to be in the vanguard of the peace movement, for recurrent wars are certainly
the greatest violator of the right to life. Waving a flag and wearing a
"Right to Life" button, strikes me as a doubtful posture.
Reprinted by permission
of Sydney J. Harris and
Publishers-Hall Syndicate
-2B-
403
RELIGIOUS HISTORY
Brief Summary of the Position
of the Catholic Church
— from
"Catholics for a Free Choice"
For centuries the Catholic Church has vacillated back and ftrth on the
question of abortion. A decision which should be a woman's personal, civil
right has been a paliti^al battleground.
1198 to 1216. Pope Innocent III held that abortion was "not
irregular" if the fetus was not "vivified" or "animated." Anima-
tion was considered to be 8r days for a female and he days for a
male. It was never explained just how they could know the differ-
ence between a female and male fetus. This crucial distinction was
adopted into the Decretals of Pope Gregory DC.
1588. Pope Sixtus V forbade all abortions.
1591. Pope Gregory XIV rescinded that order, and reverted back to
allowing abortions up to bO days for both female and male fetus.
The female fetus gained equality that year.
1869. Pope Pious IX returned to the sanctions of Sixtus V and for-
bade all abortions at any time, thus again changing the Church's
teachings regarding the V;-day "vivifi cation" concept.
Contrary to popular belief, the Church's position on abortion is a moral
and traditional one and has never been an official encyclical nor an official
Church doctrine or dogma.
-3-
404
SECULAR HISTORY
Brief Summary of Abortion Rights
in England and America
(Adapted from Civil Liberties, Sept., 1973)
by Arlie Schardt
Long ago, back in the time before people from Europe settled in America,
abortion was not restricted by law. Thus the "common law" in England per-
mitted women to have abortions, from the year 1327 up to 18«3. In the United
States, this was the case from 1607 to 183C.
Thus abortion was legal when the U.S. Constitution was written in 1789;
specifically under the Ninth Amendment, which says that the enumeration of
certain rights in the Constitution shall not be construed to deny others.
When legislatures began passing abortion laws in the 18CC's, the motive
was neither religion nor morality. The laws did not seek to discourage
sexual promiscuity, since they applied to married as well as unmarried women,
and to victims of rape. Nor did they seek to protect the fetus.
What these laws did attempt to do was to protect the woman f»om the
medical conditions of those times. For then, danger to the life or health
of the woman was greater from the abortion procedures than it was from child-
birth.
This situation, of course, is now reversed; it is many times safer to
have an aborticn, especially if it is done at an early stage. But the laws
remained en the books in most states, defended generally on the basis of
morality, ->r on religious principles held by certain powerful churches.
The abuses of this situation were many — but most serious were the danger
from self -induced abortion, and the unfairness to the women who were the
victims of felonious intercourse, i.e., rape or incest. So, as a more en-
lightened attitude toward sexual matters and sex education slowly developed,
a few states relaxed their laws, making abortion legal at the early stages.
Then came the dramatic case of a brutal rape in Texas : a rape which
that state would not allow to be undone by any medical means for pregnancy
termination. The victim was a pitiful girl who had known only abuse most of
her life. But her utter helplessness suddenly changed when her case was
picked up by more powerful forces and ultimately carried all the way to
the United States Supreme Court.
There, her case was the occasion for a "Landmark Decision," that struck
down these unfair laws so common in most of the states.
This case is presented on the following page.
-k-
405
THE TEST CASE
(Condensed from GOOD HOUSEKEEPING Magazine: A Landmark Decision)
by Joseph N. Bell: June, 1973
The Supreme Court never acts on an abstract issue; it acts only on a
real case involving real people in real trouble.
What was the real situation that led to the Abortion Rights Decision
on January 22, 1973? Surely it was an unlikely one: it was the combination
of a rape of a poor girl from Texas, unable to escape from her plight be-
cause of that state's archaic laws about abortion; and an able assist from
two brilliant young women attorneys who offered to help.
Betty Mae* was a poverty-stricken, insecure high school dropout. Her
father drifted from one job to another, finally abandoning hi.3 family
entirely, after a period of nightly drunken arguments. Betty left school at
16 to become a "caihop;" later she married Barry, the only person who had
showed her any compassion. But Barry was little better than earlier assoc-
iates. When she confided in him that she was pregnant, his response was t
beat her. Alone again, bereft of whatever emotional security this marriage
had afforded, she endured this first pregnancy, only to lose the baby when it
was born into the custody of her mother and stepfather.
After that Betty worked at a variety of jobs and finally found warmth
and comfort from some carnival people with whom she had begun to work. But
again her comfort was short-lived. One night as she walked home from work
she was brutally raped by some men who had approached her earlier at tne
carnival. Although she was badly hurt, she never thought to report the
incident to the authorities. Later, when she found herself P*»gnant, she
requested an abortion and was refused because of a Texas law that prohibited
abortion except when necessary to save the woman's life.
At this point Betty was referred to Sarah Ragle We ddington and ^a
Coffee, two young women attorneys interested in ^'^eration^ general
and more specifically in abortion rights. They took Betty's *af? J? * J***8
court and obtained the ruling that the abortion law was un^onstl^u^°n^'
Yet Betty still could not legally terminate her pregnancy because the court
had not granted the necessary injunction. Sarah and Linda decided to appeal
her case and this brought them to the Supreme Court and the -Landmar ^Decision
Bv a 7 to 2 maiority, the Court handed down the decision permitting unrestricted
abortions L Se ttrst trimester, but with some authority for state regula-
tiorwin the second and third trimesters.
But Betty Mae had no help from all this legal struggle. The time hac i^long
since passed to terminate her pregnancy. So she had to bear the child . *"^
beset by fear of men and society, is attempting again to earn her self-iespect
anl herlivtng. She has. indeed, only the satisfaction of knowing that her
case has given new hope to others who are victims of rape.
* The name used throughout the trial, to protect her from "hate mail'.' Her
correct name was never disclosed.
406
"LANDMARK DECISION"
of the
SUPREME COURT
Two cases were considered by the Court:
(1) Roe vs. Wade, The Texas case, reviewed on page 5.
(2) Doe vs. Bolton, The Georgia case, about "red-tape"
restrictions on abortion.
The Court's decision is here summarized in two columns. On
the left, the legal terminology. On the right, some comments
on what this means in layman's words.
THE COURT
SUMMED UP ITS GUIDELINES
FOR STATE LEGISLATURES
(a) For the stage prior to approx-
imately the end of the first trimester,
the abortion decision and its effectual
tion must be left to the medical judge-
ment of the pregnant woman's attending
physician.
(b) For the stage subsequent to ap-
proximately the end of the first tri-
mester, the state, in promoting its
interest in the health of the mother,
may, if ,it chooses, regulate the
abortion procedure in ways that are
reasonably related to maternal
nealth.
(c) For the stage subsequent to via-
bility the state, in promoting its in-
terest in the potentiality of human
life, may, if it chooses, regulate,
and even proscribe, abortion except
where it is necessary, in appropriate
medical judgement, for the preserva-
tion of the life or health of the
mother.
What this means is:
In the first trimester, that is, dur-
ing the first 12 or 13 weeks of
pregnancy, the state can have no
voice in the decision. It is a
matter for the woman and her
physician.
(Note that no restrictive legislation
is permissible.)
In the second trimester, that is,
from the 12th to 25th week approx-
imately, the state may_, if it chooses
regulate the abortion procedure in
ways that are related to the health
of the woman, but may not limit the
ground for abortion.
(Note that no legislation is
necessary. Y~
In the third trimester, after the
fetus becomes capable of "meaningful"
life outside the womb, the state
may regulate or even forbid abortion,
except when it is necessary to pre-
serve the life or health of the
woman. It seems clear that health
includes mental health.
(Again, note that no legislation is
necessary.)
_*=
407
Proposed
FEDERAL LEGISLATION
That Would Overturn the Supreme Court Decision
The following three excerpts are taken from the most important legislation
now in Committee in the U.S. Congress.
#1— In the HOUSE:
#2~In the SENATE
H. J. Res. 261
by Repr. Lawrence HOGAN (R. Md.):
...Neither the United States, nor
any State, shall deprive any
human being FROM THE MOMENT OF
CONCEPTION of life without due
process of law; nor deny any
human being FROM THE MOMENT OF
CONCEPTION... the equal protec-
tion of the laws.
S. J. 119
by Sen. James B.
BUCKLEY: JR., N.Y.)
Sec. 1. With respect to the right
to life, the word "person" as used...
in the Constitution... applies to all
human beings, including their unborn
offspring, AT EVERY STAGE OF THEIR
BIOLOGICAL DEVELOPMENT, irrespective
of age, health, function or condition
of dependency.
Sec. 2. This article shall not
apply when a reasonable medical cer-
tainty exists that continuation of
the pregnancy will cause the death of
the mother.
In the above, note the words in capitals (emphasis added.) Both the
Hogan Amendment and the Buckley Amendment would confer the full rights of a
human being on fetus, embryo, and so on, back to even a single cell. Buckley
makes a single exception, which the hard core Right- to-Lifers do not like;
but still less do they like this third example:
#3~In the HOUSE
H. J Res. 468
by Representative William Whitehurst: (R. Va.)
Nothing in this Constitution shall bar any
State... from ALLCWING, REGULATING, OR PRO-
HIBITING the practice of abortion.
Their objection to this, of course, is that it permits states like New
York to go on with its liberalized abortion law.
STATE LEGISLATION
Please note that it is NOT necessary for the states to write ANY laws,
for the court decision defines the legal status of abortion rights for all.
However, many bills are being introduced, mostly to restrict these "-ghts,
for example, by requiring the consent of husband or parents. Such legislation
is almost certainly unconstitutional and is already being challenged in some
states.
-7-
408
A Statement of Position
by the
COALITION for the RIGHT TO CHOOSE
WE SUPPORT abortion rights as defined by the Supreme Court decision
of January 22, 1973. because:
1. It is the better of two alternates; we can either:
a. Pass laws to make abortion illegal, or we can-
b. Make birth control so effective that the need for abortion
virtually disappears.
This would require: research for better methods
control of genetically dangerous
drugs
better maternal counselling.
2. Prohibition (as in "a" above) is not effective. It results in:
a. A massive and expensive Federal bureauracy
b. Activity driven underground
c. Spiraling cost
d. Possible exploitation by gangsters
e. Disrespect for law •
f . Intrusion by the police into private affairs —
all of which were characteristic of the "old" Prohibition law—
the Eighteenth Amendment.*
3- Prohibition discriminates against the poor. The rich can always find
ways around the law — by going to some other country if necessary.
The poor are driven to the back-alley practitioner, or else they
submit to the enforced pregnancy.
^. Actual experience shows that the right to abortion is effective in:
a. Reducing maternal death rates
b. Reducing welfare burden
c. Reducing "botched" abortions
5. It is the humane way to deal with pregnancy from rape or incest.
6. It avoids putting religious beliefs into the Constitution.
Basically, this is what the fuss is all about — the idea that at
the instant of conception a "soul" is infused, or some such theo-
logical concept. But this has no support, except in the dogma of
a few religious bodies. Biologically nothing happens except that
the "half -sets" of information are combined *ftto a "full set" of
information. And, amazingly, that full set of information is con-
tained in the chromosomes of every cell in the body.
It was bad enough under the Eighteenth: people resented the snooping
of Federal Agents to see whether they had, or were making, any
alcoholic beverage. How much more would they resent such snooping
to see if they had, or were making, any zygotes, blastocysts, embryos
or fetuses! (The Right- to-Lifers call them all "babies:" even the
one-cell zygote.)
-8-
409
7. It avoids many legal problems. If we write into the Constitution
that a fertilized cell is a "person," we would have no end of
difficulties :
Must we record conception dates?
Must we issue conception certificates?
Must we have police protection?
Must we investigate miscarriage as possible murder?
Must we issue fetus passports?
or, as someone facetiously put it, must we now buy two tickets to
the ball game?
8. It recognizeb the present rights of real people, as against the
future rights of potential people.
This is most clearly shown in the ease where the fetus is known to
be defective. Why should the lives of the woman, of others in tho
family, and of other concerned people be sacrificed for a potential
person — especially if that new person will himself have no real
opportunity for a successful life?
9. It respects the Law of Nature. From natural causes, mutations are
going on all the time. Almost all of these are defective changes,
and must be "weeded out" if the species is to survive. But Nature
does this "weeding out" at an early stage: mostly in the sex-cells
(ova and spermatozoa) ; Partly in the gametes (by failure to im-
plant) ; partly in the embryo stage (death from lethal defects) , but
very little after the twelfth week.
10. It recognizes the changing level of value in the new life. At the
stage where it is carried by the two sex cells, it can have very
little value — for incredible numbers can be, must be, scrapped.
At the zygote stage, this value increases, but it is still low,
for this is only a cell, not comparable with a human being. But
as it develops into blastocyst, embryo, fetus and full-term infant,
its value increases until it approaches that of human life. But
to hold that during this whole period of change we must recognize
a constant value equal to or greater than the life of the woman —
this concept becomes an absurdity.
410
The Right-to-Life people
have a lot of arguments —
here are
OUR ANSWERS
Their Argument
1. We are PRO-LIFE.
2.
3.
Abortion can be a means for
genocide.
Abortion is the first step; the
next is enthanasia.
fc.
6.
But the Nazi's history proves
it: first abortion, then the
death camps.
"Abortion on Demand." - Free
and easy abortion is wrong; it
will (among other things) lead
to promiscuity.
Contraceptives should be used
instead of abortion.
Our Answer
We are also pro-life: pro the woman's
life and pro quality of life. It is
curious how emotionally charged some
poopl® get to protect life before it
it born but don't seem to give a
tinker's dam what happens to it after-
ward. They appear not to care, whether
it is deformed, doomed to a short and
miserable life by congenital disease,
whether it will be faced with neglect,
hatred, battering or even starvation.
If the law FORCES abortion, yes. But
the Supreme Court decision does not;
indeed, it does just the OPPOSITE. It
forces neither abortion nor pregnancy
but leaves it for the woman and her
doctor to decide.
Any sequence like this can be imagined.
How about the danger of tea — it may lead
to coffee, then to tobacco, then alcohol,
then LSD, then opium!
More seriously, this is comparing the
life of a single cell with the life
of a human being, and, again, attribu-
ting the same value to each.
Again, experience refutes this argument.
In the Scandinavian countries abortion
laws are liberal, but care of the aged
is far better than it is here.
Again it was JUST THE OPPOSITE! The
Nazi's law of May 26, 1933i made it a
crime even to help with an abortion.
"On Demand," "Free and Easy," -? at a
cost of from $15C to $*K0 plus time,
trouble and in convenience I Surely this
is penalty enough. Unfair, too, for
it is paid only by the woman.
Of course, because it is still earlier
in the life cycle. But we still do not
have the perfect contraceptive. Nor
are contraceptives available to all,
nor low in cost, nor safe in all cases.
-10-
411
7. Abortions may result in severe
and lasting psychological damage,
regret, remorse or guilt.
The operation is cruel to the
new life; it "cries" before it
dies.
9. Physicians are bound to preserve
life, not to destroy it.
10. A genius like Beethoven might
never have been torn — and look
at my fifth... (or fifteenth?)
For clandestine, illegal abortion, this
may be true, but not when it is legally
sanctioned and widely accepted. Many
women have mental problems after child-
birth, but this is virtually unknown
after legal abortion, especially if
suitable counselling is available.
This can be true only of late abortions
that are NOT authorized by the Court
decision, except to save the woman's life.
If we remove the roadblocks that the
Right-to-Lifers are always throwing
down, late cases would virtually disap-
pear. The saline method, most commonly
criticized on this ground, is now being
replaced by a new technique (Prostin
F-2 Alpha) which would be used in third
to sixth month cases, and IF the fetus
feels pain (which is not known) this
objection would be eliminated.
This turns on the question of how we
define "life." And physicians are also
concerned about the quality of life,
not merely to preserve biological
existence.
And Hitler might never have been born.
This is an open-ended argument; it is
always possible to imagine one more.
11. The Dred Scott decision of 1857
said that "Negros are not per-
sons," hence we can declare anyone
we don't like to be "not a person"
and have him destroyed.
12. There won't be enough facilities
and personnel to serve the mass
of women who will seek abortion.
13. Nurses and others will not be
willing to take part in this
procedure.
WRONG. The decision said that Negros
are not citizens - a completely dif-
ferent meaning. The rights of PERSONS
are not necessarily the same as the
rights of CITIZENS.
Early abortions need not be performed
in hospitals. Of course waiting lists
are possible at any facility, whether
or not abortions are performed. This
is a "scare" argument; it has not proved
to be a problem in New York and other
states where laws have been liberalized.
They have a right to refuse. But, again,
this has not been a problem. Many are
willing to help.
-11-
412
14.
15-
16.
17.
18.
19.
Legal abortion (since Jan. 22,
1973) has not eliminated illegal
abortion
Statistics from many states show
no cases of pregnancy resulting
from rape; why so much concern
from Right-to-Choose?
The father should have some say
or equal say for it's his fetus
too.
You say that the cost of welfare
was cut by some $15 million since
abortion became legal in New
York state. So you put dollars
as a value above human life.
There is a shortage of babies
for adoption. Our no-abortion
position will increase the
number put up for adoption and
so make a place for these un-
wanted infants. This will then
relieve the shortage.
You would treat an aborted fetus
as just a "thing" with no respect
for the fact that it is a po-
tential human being.
But there is a reduction in the number
of "botched" abortions. If there still
is illegal practice, this is because
so many obstructions have been attemptec
legislatures writing restrictive laws,
hospital refusals, etc.
And why no pregnancies in some states 7
Because a D and C or other abortive
techniques are routinely available
for such cases. But in the Texas case
that came to the Supreme Court, a rape
DID result in a pregnancy — it was the
basis for the suit.
He is not a "father" any more than she
is a "mother" or the zygote is a "baby"
until after birth. He may contribute
half the genes, but he does not have
to bear or care for the outcome. He
may not be available; he may not be
a husband; he has no more authority
than the state to force pregnancy.
Besides, no one can prove beyond any
possible doubt that he is the father.
The cost reduction in welfare is a "side
effect." If the side effect were the
other way, you would be quick to point
it out. Why should we not point it
out when it supports our position?
So you would increase the number of
unwanted infants to take care of the
demand — to supply the market! Would
you then approve a contract system
to "make babies" for this "market?"
The truth is, however, that there are
already many children in need of a
good home, but they are not wanted.
These children are "too old," "colored,"
"low I.Q. ," "foreigners," etc.
And so do you -in actual practice-
if it is in the early stages. Do
your women conduct a funeral service
if they have a miscarriage? Do they
go into mourning if they have a "late
period?" No: You never think of
such a thing unless the new life has
developed to near full-term. Thus
your practice conforms to the real-
istic decision of the Court. Only
by your words do you try to refute it.
-12-
413
20. You say, "This is a moral ques-
tion, not political, hence cannot
be solved by law." But suppose
the question is murder, and the
mass of people decide that morally
it is all right to murder; would
you still say that the law should
. be silent?
This argument shows most clearly that
you cannot see the difference between
destroying a cell and destroying a
human being.
It is a moral question, and the moral
law must recognize different value
levels. It must recognize that life
does not come from death; it comes
from life in a continuous flow. But
in this flow it passes through many
stages. When it is in the form of
information-bearing cells, it becomes
a flood. Only a few of the cells in
this flood can be preserved. A se-
lection must take place, and after
that selection, the few must increase
in value until they reach full human
status.
If you are so concerned about "murder, "
why are you not obsessed with hatred
of war, of crime, of highway deaths,
and of lethal disease?
But if you are really concerned about
suffering and death, why do you not
worry about the suffering that comes
from forced pregnancy? About the
woman whose life may be ruined? About
the infant doomed to early and terrible
death?
Our objective is to be humane, and this
is surely a part of moral law.
-13-
414
21. A legislator should
REFUSE to vote any
money that may be
used to provide a-
bortions for wel-
fare women, because
taxpayers who are
MORALLY OPPOSED to
abortion, are thus
FORCED to contribute
to it.
It is true that some taxpayers are "morally
concerned" that their money should not go to
pay for what they oppose so bitterly. But
other taxpayers just as vehemently oppose
many other things. Some, for example, think
the whole welfare system is morally wrong.
And others, with equally violent emotion,
oppose such things as:
All "Socialist type" programs, they
are too close to "Communism".
Federal business ventures, like the TVA
of the power industry » that's unfair
competition in a Capitalist system.
Government sponsored lotteries > all
gambling is "morally wrong".
State operated liquor stores; all such
traffic is booze—itself a drug—is
-'morally wrong".
Military development and manufacture
of the horror weapons like Napalm,
nerve gas, and chemical -bacteriological
killers of all kinds.
Indeed, if we say that the government cannot
allocate tax money for any cause that any
taxpayer thinks is immoral, then the
government can hardly allocate any tax
money at all.
ON THE OTHER SIDE, those taxpayers who DO
believe that the right to abortion is MORAL,
should have an equal right to insist that
legislators DO provide funds to welfare
women, not only because these women should
have equal rights, but also because every
dollar invested here yields a return of
many dollars in the reduction of future
welfare costs, and thus relieves them of
taxes which they would otherwise be FORCED
to pay in the future.
If we are going to talk about MONEY as a part
of a MORAL question, then we had better
look at both sides of the argument.
-13A-
415
TRI-COUNTY COALITION FOR THE RIGHT TO CHOOSE
on Abortion Rights
STATEMENT FOR THE HEARING RECORD
as sent to Sen. Bayh's Committee on Constitutional Amendments: 2-18-7^
WE, the concerned citizens of Columbiana, Mahoning and Trumbull Counties
of Ohio, in agreement with the national policy statements of the numberous
religious, social service, professional and political organizations which
endorse the pro-legal position on abortion, have joined in the Coalition for
the Right to Choose, to oppose the attempts being made to overturn the January
22, 1973 Supreme Court decision on abortion rights.
BELIEVING that human life is of qualitive, as well as quantitive, value,
we feel that the abortion decision must be weighed in the light of a tctal
situation and that which would most conserve human and spiritual values.
WE OPPOSE, therefore, any legislation which would prohibit, restrict,
or otherwise control abortion beyond the guidelines of the Supreme Court
decision, ESPECIALLY the proposed Constitutional Amendments, as being:
1. UNENFORCEABLE — previous prohibitive legislation at the state
level drove abortion underground. It did NOT eliminate it.
2. DISCRIMINATORY — the well-to-do have always and WILL ALWAYS be
able to obtain abortions safely and easily.
3. A THREAT TO SEPARATION OF CHURCH AND STATE — the major institution
financing the drive to outlaw abortion is the Roman Catholic Church,
religious tenets dictating their position.
k. CONTRARY TO MAJORITY OPINION « polls indicate that most people,
including Catholics, are in favor of abortion rights.
5. A DENIAL OF THE CONSTITUTIONAL RIGHTS OF WOMEN — The right of
privacy — to choose, or not choose, an abortion; the right to
avoid doing herself harm by continuing a dangerous pregnancy; the
right to adequate medical care; the right to the use of certain
contraceptives; and the right to life, itself, under the Helms-
Hogan amendment.
6. A CONSTITUTIONAL PEROGATIVE— for the suspension of the civil and
personal rights of a person who has committed no crime.
7. AN IMPLEMENT OF LEGAL CHAOS —fetal tax deductions; funerals, con-
ception certificates; investigation, possibly prosecution, for
spontaneous abortions; government control and monthly inspection
of all women of childbearing age; inheritance tax on the estate
of a fetus which is spontaneously aborted, and so on.
IN SUMMARY, we are unalterably opposed to any attempts to subvert the
right to choose— or not choose— an abortion, viewing these efforts as in-
humane, immoral and not in the best interests of the general ™u*r*' JV..-
anticipation of the day when safe, simple and effective contraceptive me asures
are within the ken of all, we look forward to the natural demise of all but
a very few reasons for seeking an abortion.
-1^-
416
GUIDE LINES for SPEAKERS
This is to outline the policy of the
Coalition in regard to speaking en-
gagements .
1. WHY SPEECHES? Oral presentation can be one of the most effective
means for getting our message to others.
2. WHERE? Anywhere that the opportunity appears, but particularly
where education is the prime objective, as at schools. But we
can appear at churches, at civic meetings, on TV, on radio, etc.
3» WHEN? This depends on the situation and we should use good judge-
ment. In general, we should:
a. Respond to RTL presentation by showing our position; but pre-
ferably at another meeting, not in debate.
b. Respond to invitations to present our views. Note that some
organizations have a policy of "equal time, " and seek those
who can present the opposition.
c. Take the Initiative and ask for appointments when this seems
advisable. We do not want to stir up controversy, but neither
should we be reluctant to explain the importance of our position.
**. WHAT to present? Again, it depends on the situation. But:
a. The "positive" position is much more effective than a
defensive position.
b. Dispose of RTL arguments quickly and concisely by pointing
out distortion, exaggeration, mis-9nformation.
c. Gauge your audience as to what convinces them. In some
cases, for example, you can talk about the mistake of
seeking a Constitutional Amendment in this situation
without talking about abortion at all.
5. HOW to present it? Herewith a few suggestions:
a. Prepare carefully, but if possible, don't read your talk. It's
unfair, perhaps, but people resent reading.
b. Use visual aids: slides, movies, models, or demonstrations if
you can.
c. Leave time for questions and discussion, if appropriate. (Under
some conditions, it isn't.)
d. If a questioner tries to debate, gets emotional, angry or
unreasonable, keep your cool (or try to!) Remember, he hurts
himself, not you. If you can inject a bit of humor, it will
relax the audience, and give you a distinct advantage.
e. Laugh at yourself; laugh at the audience; laugh at a situation;
but never laugh at a questioner.
f . Plant questions if you want to.
g. Coordinate your talk with others who will share the stage. Pre-
ferably only two will appear together. Nothing is worse than
a panel that begins to argue among themselves,
h. Remember: our whole purpose is to "win friends and influence
people."
-15-
417
GUIDE LINES for WRITERS
To outline the policy of the Coalition in regard to
written communications
1. WHY LETTERS? Some important reasons:
a. For reaching longer distances at low cost—this applies es-
pecially to legislators.
b. For reaching large numbers of people— this applies especially
to letters-to-the-editor.
c. Because many people write well but do not like to speak; writing
takes less time, can be done under relaxed conditions, and
allows for precise wording.
2. WHERE to send? Mostly to legislators; occasionally to editors;
sometimes to friends.
3. WHEN to write? The RTL people say, write your Legislator once a
month. We think this approaches a nuisance level an J is counter-
productive. So, write when occasion demands. Write when you have
something to say, and multiply your letters by writing to different
people, especially to key people.
NOTE: The Coalition staff should keep you informed about the
news so you will know when to write and who are the
key people.
^. WHAT to say? This depends on the situation, as in the case of
speakers. But always make sure at the start to indicate which
side you are on: e.g. "This is in support of the Supreme Court
decision on abortion rights." We have reports of cases where
some clerk apparently glanced at our letter ans says, "Oh, that's
about abortion," and throws it in the pile of Right-to-Life letters I"
5. HOW to say it? To a legislator, a letter is basically a vote. He
counts the pro's and con's. But such "votes" are far more powerful
than votes at the polls, partly because letters are few compared
to election crowds and partly because a letter is a vote on a
single issue.
So a letter can be only one sentence. For example, "I urge you
you to support the Supreme Court decision on abortion rights." But
usually you will want to give some reasons for your position or
to point out advantages, disadvantages, obscure side-effects, etc.
This approaches the field of lobbying. Lobbying has acquired a
bad reputation, but this is not necessarily deserved. Legislators
do not have time to explore in depth the mass of bills they must
vote on so they rely on the help of the lobbyist who is thoroughly
familiar with his particular subject and can quickly explain the
meaning, the purpose, and the effects of a bill. True, this may
be biased information but at least it is an education, and, hope-
fully, other lobbyists will present the other side of the picture.
So don't hesitate to do a little lobbying in your letter.
But make your explanation clear and concise; preferably not more
than one page whether typed or hand-written. Don't forget to sign
your name and usually as a concerned citizen, not as a member of
an organization. Legislators dislike "pressure groups."
-16-
418
TO SUM UP:
Write in your own words.
Keep your letter clear and concise.
Cover only one issue.
Rafer to bill by name and number, if you can.
Be specific as to what you want the legislator to do.*
Show your familiarity with the subject. (The bulk of such mail is
from casual, uninformed people.)
Give reasons for your position.
In general, be helpful rather than threatening.
Write to various people: key people, your own representatives;
committee leaders and members; Congressional leaders;
any legislator with State or National ambition.
Send to the Capitol if they are in session; otherwise, to home
address if available*
ONE MORE COMMENT:
We hope the WRITERS GROUP will not only write letters themselves
but will also persuade others to write. The zealous RTL people
have been sending about ten times as many letters as we have been
sending, and naturally legislators are impressed.
* But don't forget the "thank you" letters. That's the rare kind
that are really welcome 1
-17-
419
SAMPLE LETTERS
(Date)
Dear Senator (or Congressman) :
I urge you to defend the Supreme Court's decision making
abortion legal.
The government should not interfere with a woman's decision
whether or not to have an abortion. Please oppose all legis-
lation which would overturn the Supreme Court ruling or inter-
fere with it.
Sincerely,
(Date)
The Hon.
The U.S. Senate
Washington, D. C. 20510
SUBJECT: The Hogan Bill— H.J. Res. 26l) "rights
The Zwach Bill 284) of the
fetus"
The Whitehurst Bill 468 "states
rights"
Dear Senator:
The Supreme Court's ruling for abortion rights means a better
quality of life for Americans. It gives women more opportunity
to plan and control their lives. It lifts the burden of forced
pregnancy and childbearing. It means every child can have the
love and care that a wanted child receives.
Please do all you can to support and defend the Court's de-
cision for abortion rights. Don't let it be overturned. Don't
let it be watered down.
I urge you to stop all Constitutional Amendment bills like
the ones listed above.
Please don't let a vocal minority send women's health care
back to the Dark Ages. Please support the abortion rights decision.
Sincerely,
-18-
420
SAMPLE LETTERS
(Date)
Senator Birch Bayh
Chairman, Sub-Corn, on Constitutional Amendments
U. S. Senate Office Building ffl supK)Rr op ^
Washington, D.C. 20510 SUPREME COURT DECISION
_ ^ „ ON ABORTION RIGHTS
Dear Senator t
This is to urge that your sub-committee should not report out
any of the legislation that would overturn the Supreme Court de-
cision on abortion rights. I refer to the Buckley Amendment, S.J.
119, and other proposed amendments having the same purpose.
The propaganda of various pressure groups — Right-to-Life,
Birthright, SOUL (Save Our Unborn Lives) etc., gives one the im-
pression that these people think that they have all the answers
to morality and that they are determined to force their ideas on
the whole population.
For my part, I think the Supreme Court had the right idea of
morality, and I think so because their decision:
1. Permits abortion, but only at the early stage and gives
the states the right to regulate the late stages.
2. Recognizes the right-to-privacy of the woman involved
and the dire circumstances she often faces, especially
in the case of rape or incest.
3. Helps reduce the awful toll of deformed children, un-
wanted children, and those with "lethal" defects who will
die a miserable death shortly after they are born.
These reasons alone would justify the defeat of these amendments,
But there is another side— the legal side— with all the difficulties
of enforcement, the invasion of privacy, and the incredible confusion
of interpretation of laws that try to give not only a fetus, not
only an embryo, but even a single cell the full rights of a human
being!
We tried to legislate morality-by-amendment once before when
we wrote the Eighteenth into the Constitution. I hope we do not
make the same mistake again.
Best regards,
John Doe
111 Blank St.
Anytown, Ohio WUt4
-19-
421
GUIDE LINES FOR VISITORS
To See your Member of Congress*
If you can make a visit to Washington, D. C, this can be an effec-
tive way of lobbying. However you need to know something about the pro-
cedure before you start.
THE WASHINGTON OFFICE. Each Member of Congress has from 10. to 6$
staff assistants. These people can be as important as the Member himself;
especially the top Legislative Assistant, or the Assistant that is following
a particular issue. So generally these are the people you will see: they
are the ones who have time to meet with casual visitors. And if you in-
sist on seeing the Senator or Representative in person you may harm your
own cause, for he magr -resent your pressure and he will turn your problem
back to an assistant anyway.
PREPARATION. You must of course make an appointment by calling or
writing about your problem. But first you should have done your "hom«work"
— and if you are not familar with your subject, you should obtain more
information. You can get documents (billst resolutions, or committee reports)
by writing to:
SENATE DOCUMENTS ROOM HOUSE DOCUMENTS ROOM
S 325 - or - H 226
U.S. Capitol U. S. Capitol
Washington, D.C. 2C5ir Washington, D.C. 2C515
where you can obtain, free of charge, copies of all bills, resolutions and
committee reports.
Another free source of information is the G.A.O.:
General Accounting Office
441 G Street
Washington, D.C. Z 5^3
where a staff of some 5C«C professional people have reports on a wide
variety of national issues.
Sometimes the Library of Congress-ir, First St. S.E.-can be useful
to answer specific questions, make up reading lists, etc. Or you can
request help from your Member of Congress to get information from the Library.
His staff can also contact the Congressional Reference Service (CRS)
on important issues, to prepare reports, do research, etc.
Again, you can ask his staff to arrange contact for you with any
agencyoof the Federal Government that deals with your problem. The bureau-
cratic maze can be vastly simplified if your Representative or Senator s
office makes an appointment for you.
*"M.C." is meant to include both Senators and Representatives,
422
You can also request meetings with your Senator or Representative
when he is back in the state of district. You can organise your group
to meet with them and often these meetings can be very effective as the
member is away from Washington and usually more relaxed and attentive to
your problem.
Finally, if you want to testify before a congressional committe, you
can ask the office of your member of Congress to put you in tovch with
the appropriate committee staff member. This is especially important if
the chairman of the committee in question is not from your state.
*****
To Testify before a Congressional Committee
IF YOU WISH TO TESTIFY in favor of a bill, contact the bill's sponsor
and make arrangements with him or his staff for your testimony. If you
wash to testify against a bill, make similar arrangements with the Committee
Chairman or with another member of that committee that shares your views.
In either case, be sure that your testimony is written out in a neat form.
You should have enough copies to supply each member of the committee— d* , if
you do not know the number, make at least 20 copies. Have the copies
agailable before your appearance.
Keep in mind the following points:
1. Favorable committee action is necessary before a bill reaches
the floor of the Senate or House,
2. Keep your testimony short and to the point. Allow time for
questions. If possible, talk to members before the meeting
so you can answer their concerns and misgivings.
3. Members who share your views may be willing to examine op-
posing witnesses using questions you have prepared. (Thit,
must be arranged before the meeting.)
^. A day before your appearance, check to be sure that no changes
have been made in agenda or time and place of meeting.
5. Remember— you are trying to persuade the committee to vote
for your position. Avoid testimony or conduct that will out-
rage its members. Even if members are hostile, they should
be given polite, responsive answers.
COMMITTEE ACTION IS VERY IMPORTANT. This kind of lobbying should
have a high priority.
-21-
423
STATISTICAL DATA
FOR THE CALENDAR YEAR
1973
Live Births, U.S.A 3,141,000 (about 8600 per day)*
Deaths 1,977,000 (about 5400 per day).
Increase, "natural" 1,164,000 (about 32C0 per day)
Immigration (estimated) 348,000 (about 950 per day)
Total increase 1,512,000 (about 4150 per day)
Total U.S. Population January 1, 1974 211,216,000
Marriages 2,269,000
Divorces (about 3750 839,000
Birth Rate ......15 per 10CO people
Sertility„Rate 68 per 10*0 nubile women
amage'Rate 10.9 per 10J0 population
Divorce Rate 4.4 per 1000 population
World Research for Contraception in 1973 $26,700,»0O.
(This is about the cost of two miles of superhighway.)
Child Abuse, reported cases in the U.S. about 60,000 annually.
165 per day
Children unwanted, born in the U.S.
per day — 2,00f approximately
Cost to the state for welfare cases:
Contraceptive service, average ....$66 per year
Therapeutic abortion $2C0 per year
Prenatal care and delivery $1000
Mother and child on welfare $3000 per year
Mother and child - for 18 years ...$54,000
(Compiled by Family Planning Information Office,
New Cumberland, Pa. 1974)
Results of GALLOP POLL:
(Actual question: Do you favor a law
which would permit a woman to go to
a doctor to end a pregnancy at any
time during the first three months?)
Number answering* "yes" Dec. 1969 40*
May 1971 50*
Jan. 1972 57*
June 1972 64*
* for the whole earth, about 200,000 per day
-22-
424
STATISTICAL DATA
Results of HARRIS SURVEY:
(Actual question:
1. Do you favor or oppose a law
permitting abortion for al-
most any reason?
2. Do you favor the Supreme
Court decision making
abortions legal up to 3
months of pregnancy?
Number answering "yes" June, 1970 kC<f> (Ques.l)
June, 1972 #3* (Ques.l)
Aug. 1972 l»2JJ (Ques. 1)
This data plotted April 1973 52# (Ques. 2)
on Curve No. I
Maternal Deaths per 1000 Births, in New York City:
1969 (prior to legal abortion 5*3
1970 (abortion legal in July) >*.6
1971 2.9
1972 (lowest ever recorded) 2.6
This data plotted
on Curve No. II
Children Born to Welfare Families in New York City
1970 25, ^81 (all-time high)
1971 23,6^3
1972 19.791
Estimated saving in 2-yr. period, $15,000,000
(See Graph HI)
"Botched" Abortions
Referred to San Francisco General Hospital
1967 (before abortion reform) 68 per 1000 births
1968 (after abortion reform) 36 " ■ n
1969 22 " " "
(See Graph IV)
23-
425
*I Tt/BL/C O'PtN/oM
On th^. T^icfht to Pr-<s.^tn<z * cy /er^ ! ^a /to*
\#'-fh'n "The /Jcs/ Hnr&z **o*fhs.
3o
J*— Abortion Hitfhh /-<3Lvl> Ptxs^td
i -, A/ca; /urL
/9fe9 /970 /?7/ /?72 '?73 19 7f
^
^^f tf4T£rx.HAL- DEATHS
Tyt>§ U.^ Asm* n M" >^
/?&? /?70 /?7/ /?72 /973 /^7^
426
HI Crt'L.2 R£tsJ Bl3E/V to WSTLPAllLi
Fa m i l I <C5
t'n A/ou/ Yorlc C'Vi
2>o aoo
XS ooO
2o o^o
/Sooo
/O Oo«
' /f£? '?7* /?77 /?72 ff?3
£-0
IZ
; i
Rt.te.rr * A ^P
1 F 1
Francisco ne.rxe.ral
Hospt+CL I
-A
tfL7 ,9i>* '?<>? /97o /9 7/ /77Z
-25-
427
HOW CHANGES ARE MADE
in the
CONSTITUTION
The Constitution is always subject to interpretation; there-
fore, it is always expanding in the .sense that laws are passed
that provide elaboration. Such laws, of course, are considered
necessary or desirable to fit current conditions. This expansion
is the most common method of change.
It can change also by custom and usage, as, for example,
when the electoral college became merely a "rubber stamp" to
record without question the vote of the people instead of a
deliberative body assigned the task of choosing the most qualified
candidate for President.
Again, the Constitution can change because of interpretations
handed down by the Supreme Court.
Finally, it can change by the addition of Amendments. Such
specific changes must be passed by a two-thirds majority of both
the House and the Senate. Then they must be ratified by the
Legislatures of three-fourths of the states. A time limit for
this ratification is sometimes specified in the Amendment.
-26-
428
Congress of the United States,
House of Representatives,
Washington, D.C., May 1, 1974.
Hon. Birch Bayh,
Subcommittee on Constitutional Amendments,
Committee on the Judiciary,
U.S. Senate, Washington, B.C.
Dear Mr. Chairman : As you know, Senator Marlow Cook requested cita-
tions of legal cases on the rights of unborn children. I sent him a copy of an
article which I had published in the Winter of 1971 edition of The Maryland
Law Forum. I am enclosing a copy for your perusal. Under "Notes" you will
find several pertinent citations.
Please let me know if you have any questions.
Sincerely,
Lawrence J. Hogan,
Member of Congress.
The Embattled Minority : Out of Sight, Out of Mind
(By Hon. Lawrence J. Hogan, Member of Congress)
During the course of the 19th century, the American Medical Association
asked the several states to reform their laws to prevent abortions, and in
1859, the AMA obtained unanimous adoption of a resolution which condemned
abortions at every period of gestation except as necessary for preserving the
life of either the mother or child. The reason for the resolution was stated
to be the increasing frequency "of such unwarrantable destruction of human
life." x
It's interesting that the members of the AMA in 1859 had no trouble identi-
fying the fetus in a woman's womb as a human being, yet today with a cen-
tury's worth of added bio-medical knowledge and the development of a science
of fetology, there are some members of today's American Medical Association
who would consider a human fetus, for the purposes of terminating pregnancy,
as only a "cluster of cells."
I have not seen any statistics citing the numbers of abortions performed
in 1859, but I wonder if the "unwarrantable destruction of human life" in
that year came anywhere near the estimated 215,000 abortions which were
performed in the State of New York alone in the year following the liberali-
zation of that State's abortion statute in 1970.
To continue in this tone would cause us, however, to fall into one of two
problem areas which seriously handicap a rational discussion of the abortion
debate. This first area can be labeled simply "emotionalism." On the one
hand, the abortion controversy is subject to the emotionalism of what has
been characterized by the pro-abortion forces as the classic Catholic, moralis-
tic, theological view of abortion as sinful and symptomatic of a decaying
society. On the other hand is the emotional argument that abortion is neces-
sary to achieve the social good, that the world is overpopulated and abortion
is a cure, and that unwanted pregnancies are a burden to the mother and
to society.
The second area which hampers a forthright discussion of abortion is not
so readily perceived as the emotionalism which beclouds rationality. Here
we have fallen into the 20th century trap of "specialization" of career inter-
ests that we have failed to interrelate the disciplines where such an inter-
relationship exists and is essential to a thorough understanding of the subject
matter.
To return for a moment to my opening statement, that in 1859 the AMA
was calling upon the States to pass anti-abortion legislation, if we combin*
the present statute and case law with our advanced knowledge in the area of
fetology, it would appear that the AMA should be making a similar, and even
stronger, plea to the States today. Instead, the AMA is passing resolutions to
make it possible for their members to practice in accordance with the liberal-
ized abortion laws in New York, Alaska, Hawaii, and Washington without
violating the canons of the medical profession.
See footnotes at end of article.
429
For purposes of this article, I have attempted to isolate the abortion ques-
tion from the emotionalism and from all moral, ethical or theological per
spectives and center the discussion instead on the biological and legal aspects
These parameters can best be summarized by two questions:
(1) When does life begin?
(2) Having begun, what are the legal rights of the possessor of that life?
As long ago as 1964 (which is ancient history in the rapid developments in
the medico-scientific community), Professor Ashley Montagu of Columbia Uni-
versity said that, "The basic fact is simple : Life begins, not at birth, but at
conception." 2 It was during the 1960s also, that the biogenetic community made
the startling discovery that the newly conceived fetus possesses the genetic
(DNA) code, which transmits the human constitution.5
The new science of fetology which was brought into existence during the
late 1960s by Dr. H. Liley's work on blood transfusions to the fetus has thor-
oughly exploded old myths, such as those which caused Justice Pound of New
York's highest court to hold in a 1921 decision that "When justice or conven-
ience requires, the child in the womb is dealt with as a human being, although
physiologically it is a part of the mother." *
But today the experts agree that a child is a separate, living, human being
from the very beginning. The fetus shows a working nervous system and brain
different from his mothers in the 19th day of pregnancy, and there is no
medical or scientific disagreement that his existence as an individual begins
no later than the time when the cells which make up the fetus separate from
those cells which later become the placenta. Even the persistent belief that
the placenta is a part of the mother has been explored.6 Moreover, the modern
technique of fertilizing human eggs in test tubes further establishes that life
begins at conception.
Dr. Liley and his wife, both pioneers in the new science of fetology, have
observed the fetus in his watery world inside the amniotic sac by closed
circuit x-ray television. Their words for what they seen clearly establish for
the layman or the lawyer, the nature of a human fetus :
". . . 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." 9
If a heartbeat with circulating blood can be detected at three weeks ges-
tation, if the internal organs of a complete human being and human facial
features can be determined at six weeks, and if by seven weeks gestation the
nervous system of the fetus is functional to the point that it flexes its neck
when its mouth is tickled, then we should be able to say with some certitude
that medical developments regarding the essential humanity of the unborn
fetus confirm the soundness of the law in treating the fetus as a being with
rights not dependent on his parents.
At this point in time, the evolution of bio-genetics favoring the recognition
of the fetus as a living person within the womb is supported by the common
law. The precedents of property, tort, and welfare law have long recognized
the legal rights of the unborn person. The Dean of tort law — and the "wise tort-
father" of first-year law students — Professor Prosser stated as early as 1964
that, "All writers who have discussed the problem have joined ... in main-
taining that the unborn child in the path of an automobile is as much a person
in the street as the mother." 7
It is not my purpose in this article to review the legal precedent established
in tort, property, and equity cases which uphold the rights of the unborn
fetus as separate and distinct from the mother in whose womb he is couched.
There are numerous outstanding legal articles dealing with these rights which
adhere to the child before birth.8
Suffice it simply to reiterate Professor Maledon's statement of the incon-
sistencies which develop in those States with liberal or "abortion-on-demand"
"The unborn child, under the law of property in most jurisdictions, can,
among other things, inherit and own an estate,0 be a tenant-in-common with
his own mother,10 and be an actual income recipient prior to birth." The new
See footnotes at end of article.
430
liberalized abortion laws, however, present a dilemma in this area. How
can it be a crime for a woman to misappropriate the estate of her unborn
child, and yet not be a crime for her to kill that child? Can a woman, who
has inherited an estate as a tenant-in-common with her unborn child, increase
her own estate 100% simply by killing the child? Will the law, which has
recognized the unborn child as an actual income recipient prior to birth, allow
the child's heir (the mother) to kill the child for her own financial gain?
Will the law that has specifically said that an unborn child's estate cannot
be destroyed where the child has not been represented before the court
allow the child himself to be destroyed without being represented before the
court? These few possibilities are but a sample of the legal maze that the
abortion law revisions have created." "
Similarly, in my own State of Maryland, in an action for the wrongful
death of a stillborn child, the Maryland Supreme Court observed : "The cause
of action arose at the time of the injury, and . . . (there is) no more reason
why it should be cut off because of the child's death before birth, than if it
died thereafter." M .
If the fetus can be tortiously injured,15 can inherit and be the beneficiary of
a trust, can be represented by a guardian ad litem seeking support payments,
and can be preferred to the parents' constitutionally-upheld religious liber-
ties,17 then it appears that there must be a substantial basis for a constitu-
tional argument favoring the unborn child's right to life.
The unborn child's constitutional right to life is then the avenue which I,
as a Federal legislator, will explore. There are some constitutional precedents,
such as the previously cited New Jersey case where the fetus was likely to
be aborted if denied a blood transfusion in accordance with the parents'
religious beliefs.18
It is noteworthy that in a unanimous per curiam opinion in the Anderson
case, the New Jersey court found no difference between this case and an
earlier New Jersey case18 where the blood transfusion was given to a blue
baby suffering from lack of oxygen after birth. Similarly, in an earlfer case
the same year as the Anderson case in New Jersey, Judge P. Skelly Wright of
the U.S. Court of Appeals for the District of Columbia Circuit held that, "The
State as parens patriae will not allow a parent to abandon a child and so it
should not allow this most ultimate of voluntary abandonments. The mother
had a responsibility to the community to care for her infant."20 It is note-
worthy that in both the Anderson and Georgetown cases, the Supreme Court
denied certiorari, thereby in effect affirming the decisions denying the mother's
right to permit the abortion of her child.
We will return later to the impact of these decisions in framing the issue
that the unborn child's right to life supersedes all the mother's constitutional
rights except her own right to life.
In its first confrontation in April, 1971, with the abortion controversy, the
Supreme Court of the United States sustained the constitutionality of the
abortion statute of the District of Columbia against an attack for vagueness.21
Although the Court upheld the right-to-life philosophy, at the same time, it
courts.22 Nevertheless, construing broadly the term "health" in the statute 23 and
violations of the District of Columbia statute.
In upholding the constitutionality of the D.C. statute, the Court overturned
the U.S. District Court decision granting a motion to dismiss the indictment,
holding that the statute was so vague in its exception of abortions to pro-
tect some undefined standard of "health" that it denied defendant's due process
of law and did not afford adequate standards for judgment by juries or
courts.22 Nevertheless, construing broadly the term "health" in the statute23 and
placing the bruden of proof on the prosecution to show, by the criminal stand-
ard of beyond a reasonable doubt, that a particular abortion was not within
the statutory exception will mean at the least that prosecution cases must be
far more complex and could well approach the psychiatric complications of the
typical trial in which insanity is a claimed defense.
Although concurring in the majority opinion written by the late Mr. Justice
Black, Justice White indicated that he would object to any construction that
permitted "abortions on request." The statute seemed clearly to him to pro-
scribe all abortions "not dictated by health considerations."
See footnotes at the end of article.
431
Even more recently, Dr. Milan Vuitch, who is licensed to practice in the
District of Columbia, Maryland, Virginia, and New York, was denied certiorari
on October 12th on his appeal from a Maryland conviction."1 Although a
constitutional argument of due process and equal protection was made, tin-
Court of Special Appeals affirmed the Circuit Court conviction under the
newly revised Maryland abortion statute as contained in Chapter 470 of the
Acts of 1968. The courts, however, never decided the merits of the constitu-
tional question because a procedural technicality disallowed the constitutional
argument to be raised as a defense to the abortion charge.
There are, however, more extensive constitutional attacks presently pend-
ing on the Supreme Court's docket.25
For the most part, these attacks on the constitutionality of anti-abortion
statutes have taken two approaches :
(1) Abortion statutes invade a woman's right to privacy and sovereignty
over her own body ; and
(2) Abortion statutes deny equal protection of the law to poorer citizens
by discriminating in favor of richer inidviduals who can afford the trips and
expenses involved in abortions.
Looked at objectively and in the light of legal precedent neither of these
two arguments hold water. In the first case, if we accept the fetologist's
scientific evidence that light begins at conception, then it follows that the
mother's right to privacy must be subordinated to the unborn child's con-
stitutional right to life. The blood transfusion and blue baby cases illustrate
this point.
Interestingly enough this legal recognition of the rights of the unborn is
not an anomaly indigenous to the American legal system. In 1959, the United
Nations adopted a "Declaration of the Rights of the Child," wherein the
representatives of the member nations of the U.N. recognized 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." 2
The second attack focussing on the denial of equal protection to the poor
is even more valid when applied to the unborn who is also entitled to equal
protection of the law. As a society we should recognize that our entire system
of justice sometimes denies equal protection to the poor. However, the re-
sponse to this recognition should be a striving for the eradication of the
root causes of poverty, not for the invalidation of lawfully enacted statutes
because some segments of society find the statute easier to contravene than
another.
Interestingly enough, since abortion clinics in the District of Columbia have
been mushrooming after the Vuitch decision, preliminary statistics indicate
that two-thirds of the users of one of these abortion clinics are white.29 This
is hardly an indication that these clinics will make it easier and cheaper for
the inner-city blacks to obtain abortions.
Statistics recently released by the Johns Hopkins University School of
Medicine indicate that some 2,500 Maryland women obtained abortions out-
side the state during the last fiscal year.29 Of these out-of-state abortions, 878
were performed in New York City, another 202 in other parts of New York
State, and an estimated 1,500 in Washington, D.C. Again, these figures don't
indicate that it's the inner-city blacks who are profiting from the liberalized
abortion laws.
Finally, one learned writer has come to the conclusion that abortion is in
complete contradiction to the civil rights movement of the 1960's. For more
than a decade, Americans have fought in the courts and on the streets for
the civil rights of our minority groups. And now, some of those same civil
rights advocates fail to see that abortion abrogates the most important civil
right— the right to life itself. Let's not forget that every one of the individuals
in the pro-abortion movement has already enjoyed that civil right to life
which they are refusing to the unborn child in the womb.
For my own part, I'm hopeful that the Supreme Court, in deciding the
cases on its docket this Term, will recognize the essential humanity of the
unborn child and will no seek to reverse the established precedent that the
right to life supersedes all other rights which are bequeathed to all Americans.
If the Supreme Court were to decide otherwise, it would be clear then that
our constitutional safeguards will have given way to the era of convenience.
See footnotes at end of article.
432
For in reading the test cases on the constitutionality of abortion statutes, one
cannot help but think that due process and equal protection are but legalese
for insuring the convenience of the living. Because this is a time of concen-
tration on making life as easy as possible, by holding the abortion statutes
unconstitutional, the Supreme Court would insure that thousands of lives
would be made much simpler and more convenient by not allowing a child
to be born. ,
In that event, I have every intention of introducing a resolution to amend
the Constitution in the following manner:
"The right of the unborn to life shall not be abridged, and unborn persons
shall have the same rights as others to the equal protection of the law."
If one of the purposes of a Constitutional amendment is to clarify the
language of the fundamental principles upon which the United States was
founded, then in the words of that 1859 AMA resolution, "such unwarrantable
destruction of human life" would certainly call for a clarification of the mean-
ing of our inalienable right to life.
Unfortunately, this clarification is no longer necessary only for the unborn.
The anti-life movement has already been extended as in the case of the mongo-
loid babies which have been allowed to die after birth and in the case of the
aged and infirm who would be allowed to die if a euthanasia bill presently
pending in the Florida State Legislature is passed by that body.
Just as we are now witnessing the attempted extension of the abortion
mentality on constitutional grounds, so also will the constitutionality of kill-
ing the unborn be extended to the constitutionality of killing the living with-
out due process of law.
i American Medical Association, Minutes of the Annual Meeting 1859, Tenth Annual
Medical Gazette 409 (1859).
8 Montagu, Life Before Birth 2 (1964).
3 F. Gottlieb, Developmental Genetics 17 (1966).
*Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567 (1921).
sLiley, Modern Motherhood 2S (1967).
?W\'Prosser, Handbook of the Law of Torts sec. 56, at 355 (3rd ed. 1964).
8 Maledon The Law and the Unborn Child : The Legal and Logical Inconsistencies,
46 N D. Lawyer 349 (1971) ; Noonan, The Constitutionality of the Regulation of Abor-
tion 21 Hast. L.J. 51 (1969): Noonan, Amendment of the Abortion Law: Relevant
Data and Judicial Opinion. 15 Cath. Law. 124 (1969) ; Means, The Law of New York
Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation
of Constitutionality, 14 N.Y.L.F. 411 (1968).
• Hall v. Hancock, 32 Mass (15 Pick.) 255 (1834).
"Biggs v. McCarty, 86 Ind. 352 (1882). „«..-»
» Industrial Trust Co. v. Wilson, 60 R.I. 169. 200 A. 467 (1938).
"Deal v. Sexton, 144 N.C. 157, 56 S.E. 691 (1907).
"Maledon, supra, note 8 at 369. . „ __ „ ,i(li..
"State ex. rel. Odham v. Sherman, 234 Md. 179, 19S A.2d. 71, 73 (1964).
"Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C. 1946).
™Kyne v. Kyne, 38 Cal. App. 2d 122. 100 P2d 806 (1940).
1T Raleigh Fitkin — Paul Mem. Hosp. v. Anderson, 42 N.J. 421, 201 A. 2d 537, cert.
denied. 377 U.S. 985 (1964).
wId.
w State v. Pcrricone, 37 N.J. 463. 181 A.2d 751 (1962).
*>7n re Application of President of Georgetown Lmversity Hospital, 331 i Za 1000
(D.C.Clr.) cert, denied., 337 U.S. 978 (1964).
21 U.S. v. Vuitch, 402 U.S. 62 (1971).
""Id., 305 F. Supp. 1032 (D.C.D.C. 1969).
23 22 D. C. Code sec. 201, provides inter alia:
"Whoever, by means of any Instrument, medicine, drug, or other means whatever,
procures or produces or attempts to procure or produce an abortion or miscarriage
on any woman, unless the same were done as necessary for the preservation of the
mother's life or health and under the direction of a competent licensed practitioner
of medicine, shall be imprisoned in the penitentiary not less than one year or not
more than ten years . . ." __ „,
"State v. Vuitch, 10 Md.App. 3S9. 271 A.2d 371 (1970).
23 Roe v. Wade, 314 F.Supp. 1217, (D.C.N.D. Tex 1970) appeal pend. No. 808:
Rosen v. Louisiana State Board of Medical Examiners, 318 F. Supp. 1217 (D.C.L.D. La.
1970) appeal pend., No. 1010 ; Rodgers v. Danforth, appeal pend., No. 1402 ; Doe v.
Bolton, 319 F.Supp. 1048 (D.C.N.D. Ga. 1970) cross appeals pend., Nos 971 973.
"Genl Assembly of the U.N., "Declaration of the Rights of the Child adopted
unanimously in the plenary meeting of Nov. 20, 1959, Official Records of the General
Assembly, i4th Session, p. 19-20. _ ,. _. „
=8Auerbach, Stuart. "2/3 of Users of Abortion Clinic White," in The Washington
Post, August 26, 1971, p. B-l. . ,. ,__..
29 The Evening Capital, "Maryland women abort elsewhere, November it, lyvi.
433
Zero Population Growth,
Fort Wayne, Ind., March 97, 191/4.
Hon. Birch Bayh,
Senate Judiciary Subcommittee on Constitutional Amendment, U.8. s> nate,
Washington, B.C.
Re : Constitutional amendment on abortion.
Dear Sir: We in Ft. Wayne are very interested in the hearings yon are
conducting on abortion. Our chapter would like a chance to testify at your
hearings, however I am sure your time is limited and the requests are mauy.
Keeping that in mind, as well as the fact that our treasury falls short of
financing a trip to Washington, D.C., we are sending you written testimony.
We hope you can find time to read it personally and consider our thoughts.
We do not favor a constitutional amendment or any other type of legis-
lation that would render abortion once again illegal. Our reasons are many.
I will endeavor to relate all of them briefly and clearly.
The abortion laws, before the Supreme Courts decision making them in-
valid, were passed in the context of 19th century medical conditions. There
were no anesthesias, antibiotics, blood banks or modern surgical procedures,
thus making abortion extremely hazardous, as was any surgical procedure.
Moral compunction had no part of these laws. Abortion is now safe, when
done in the proper facilities; but up until about a year ago when it was
legalized, back alley operations continued to keep abortion medically haz-
ardous.
Theologically, opinion is greatly divided. Protestant opinion is diverse.
Jewish law consists of a general framework, enabling every separate case to
be examined with the widest possible attitude.1 In general, major opposition
to abortion arises from Roman Catholic and fundamentalist religions.
What part should religion play in abortion law? We feel a religious group
is and should be free to characterize abortion as a sin if it sees fit, as well
as punish its membership if it sees fit. However, members of other religious
groups should have the right to sanction abortion if it is in accordance with
their conception of morality and human dignity. No one sect, in our views,
should be allowed to impose its views on other religious groups or those
whose beliefs are other than religion oriented. Surely each must be able to
accept a religious or non-religious way of life as long as civil laws are
observed.
At which point then, in a nine month pregnancy can we justifiably call a
fetus or embryo a human being? From a biological prospective an unfer-
tilized egg— or any other cell— is quite as "alive" as a fertilized egg, since
almost every cell in the body contains the properties of life. The question
then, is not the extinction of life, but whether or not we are destroying a
human being when embryonic cells are destroyed.
Biologists question the assumption that a fertilized egg is a human being.
Many people, all over the country, have been exposed to actual fetuses us
well as pictures ; to vivid descriptions of heartbeats and talk of brain waves
inside the womb. The purpose is to create the impression a fertilized egg is
a complete, although miniature, human being. Only time and nourishment
then is needed to allow this tiny creature to grow big enough to live on its
own life support systems. This is not true. n^nrtaA hr nature
A fertilized egg may develop in many ways. Millions are aborted b> nature
in the first weeks of pregnancy : some defective, but not all. Early aborted
Lue if It regarded" human; legally medically, scien tiflcaU* social* ^or
religiously Some with abnormal development are not aborted and result
in virions non-human forms. They become malignant tumors • chorioe,u hHh,
mas or benien tumors, hydalidiform moles; some develop into anomalous
masses o Uvfng tiSue 'with bits of identifiable elements : teeth, bones hair,
cartilage etc Every variation is possible from an unorganized mass of eel h-
la • t slue to 'a live baby with a cleft lip or extra fingers. The idea of regard-
ng as nonhSman a baby born with extra fingers, etc is repngnan t, s
all. Is not awarding human rights to an anomalous mass of tisue or a tumor
1New York Metropolitan ReKlon of United SynaKogue of AM. "The Jewish Attlt.,...-
Toward Abortion" (mimeo)
434
equally repugnant. Can we then accept the idea that an egg, fertilized, is
human from the moment of conception?
At which point then can we assume an embryo is more than just a piece
of tissue? Embryologists suggest that it is not until the fifth month that the
brain of the fetus has developed enough to resemble that of a human being.2
It is also around that time when a fetus becomes something more than a
tissue inside the mothers body. With intensive, care, many babies born after
the fifth month of pregnancy can survive.
What of the woman herself. Have you, or any legislator for that matter
ever asked a woman that has had or needed an abortion, how she feels about
it. Through all the emotional outcries from the "Right to Life" groups, one
fact has been ignored. Most women in the United States never have advo-
cated abortion as a form of birth control. Most women seeking abortions are
those already with children, that cannot, for various reasons, face another
pregnancy. The decision to have an abortion is never taken lightly. Probably
no decision a woman makes is more important ; no decision can affect her
whole life so completely as having a baby.
The belief in fetal rights and the states' rights to regulate reproduction
has resulted in much unnecessary anguish for many women and their fam-
ilies.
Antaibortion forces would give fetuses rights that living people don't enjoy.
No humans rights to life include the use of another human beings body and
life support systems against that individuals will.
Since the Ft. Wayne Chapter of Zero Population Growth was formed three
years ago, we have received many calls from women and men with problems
related to an unwanted pregnancy. They had no where to turn and hoped
we could provide some alternatives. May I relate two of these to you?
A woman called, extremely upset about her sister. The sister already had
five children, one right after another. The family was already living at pov-
erty level. Due to a birth control failure she was pregnant again, according
to here doctor, probably with twins. Her health was poor and the husband,
furious with her for "getting pregnant," felt it was all her fault and left.
Close to a breakdown, with five children to care for and now provide for ;
she was truly desperate. Could she obtain an abortion? At this time abor-
tions were illegal and medically she was not a candidate for a therapeutic
abortion. What could we tell her?
Then there was a call from a girl, unmarried, a student, who found herself
pregnant. During the course of the conversation it became obvious that,
although a college student, her knowledge of contraception was very limited
and much was incorrect.
Can we truly expect her to change her plans for the future because of an
unwanted pregnancy? The father could continue with his plans for his future.
Is she less important ; is she that much less than an equal human being, that
a pregnancy should have precedence over her, and dictate her future?
Ideally prevention would be the answer. But, present conrtaceptive methods
are not perfect and sex education is not wide spread, but rather left up to
parents, and statistics show how effective that is. Ironically we have found
those that are against abortion are the same ones that are against sex
education in schools, are against contraceptive use, especially among the
under age and single, and think sex is dirty and should be used only to
reproduce. They do not recognize it as a perfectly human instinct and would
have those that do be forced to accept the strict doctrine of sex only for
reproduction purposes.
Possibly the true solution to this most perplexing situation is assuring the
money is available for perfecting contraception and then making sure contra-
ception and sex education are available to all, thus eliminating the need for
abortion.
Thank you for your time.
Sincerely,
Julie McLeod.
2B I Ballnsky, An Introduction to Embryology (Philadelphia: Saunders 100"
p. 370.
435
Wisconsin Citizens Concerned fob i
Ordinance Codtj «
Milwaukee, Wis., Aui/ust 16, 18
Hon. Birch Bayh,
Chairman, Subcommittee on Constitutional Amendments,
Senate Judiciary Committee, U.S. Capitol, Washington, 1>.<
Dear Senator Bayh: As a member of the Board of Governors and I
of Directors of the Wisconsin Citizens Concerned for Life and President of
the Milwaukee Chapter, I present herewith a statemenl of the WCCL prepared
for your committee with respect to the Right to Life Amendment on which
you are conducting hearings.
While we would like to present this statement to your subcommittee orally,
we realize how crowded the schedules of the Senators arc and so we submit
this statement in writing and respectfully request that it be made a part
of your hearings and that it he included in the printed hearings of your
committee.
We believe we have provided new material to the subcommittee in that we
have outlined the impact of the Roe vs. Wade decision of the Supreme Court
on the Wisconsin Law.
If there is any further information you would like to have with t
to any matter covered in our statement we would be pleased to try to furnish
it to you.
Sincerely yours,
David Keyser,
President.
Statement of Wisconsin Citizens for Life re Human Life Amendment to
U.S. Constitution
The Wisconsin Citizens Concerned for Life, 4945 West Fond du Lac Avenue.
Milwaukee, Wisconsin, has several thousand members and twenty-five local
chapters in various communities in Wiconsin. We submit this .statement in
support of the Human Life Amendment which would protect human life from
its biological beginning.
When the U.S. Supreme Court in Roe vs. Wade, 93 S. Ct. 705, declared the
Texas abortion statute unconstitutional it also stated that any state criminal
abortion statute of the current Texas type is unconstitutional.
The Court made much of the "fact" that the purpose of the Texas statute
was to protect the mother and not the unborn child, and also that there was
no penalty for the mother for destroying her own child by abortion.
The Wisconsin Statute, however, clearly states that its purpose is to pro-
tect the unborn child,and it does impose a penalty on the mother who de-
stroys her unborn child.
However, we can take little encouragement from the fact that our statute
differs from the Texas statute. The temper and tenor of the Court clearly
indicates that it would engage in some other line of sophistry to find Wis-
consin's statute unconstitutional. For the Court was hell-bent in its exercise
of social engineering to pave the way for abortions, even if it had to rupture
the U.S. Constitution to do it.
Thus in its august wisdom, the Court set aside the will of the citiz<
Wisconsin as constantly expressed through their legislators ever since the
founding o fthe state in 1848. Somehow we are supposed to draw the conclu-
sion that seven judges in Washington in 1973 are smarter than the people of
Wisconsin and the thousands of Wisconsin legislators and judges over the
past 125 years who also took an oath to uphold the Constitution of the
United States. .., , ..
A review of the Wisconsin law on abortion over the years will show tne
attitude and intent of the Wisconsin legislators with respect to ab
attitude and intent either ignored or unrecognized by the U.S. Supreme < ourl
in the Roe v. Wade case. . Q.
The AVisconsin Constitution adopted in 1848 provides m Article 1. section »
"Every person is entitled to a certain remedy in the laws for all injuries,
or wrongs which he may receive in his person, property, or character; . .
436
The first publication of the Wisconsin laws after the adoption of the Con-
stitution, the 1849 Revised Statutes of Wisconsin, clearly indicates the will
and intent of the legislative to include the unborn child within the class of
persons who are to be protected by the law.
Chapter 133, of the 1849 Revised Statutes of Wisconsin is entitled: "Of-
fences Against the Lives and Persons of Individuals" and deals with murder,
homicide and manslaughter. Sec. 10 of Chapter 133 reads:
"The willful killing of an unborn quick child, by an injury to the mother
of such child, which would be murder if it resulted in the death of such
mother shall be deemed manslaughter in the first degree."
Section 11 reads :
"Every person who shall administer to any woman pregnant with a quick
child, any medicine, drug, or substance whatever, or shall use or employ any
instrument or other means, with intent thereby to destroy such child, unless
the same shall have been necessary to preserve the life of such mother, or
shall have been advised by two physicians to be necessary for such purposes,
shall in case the death of such child or of such mother, be thereby produced,
be deemed guilty of manslaughter in the second degree."
In 1858 these two sections were revised only a striking the word "quick."
Thereafter the text of these two sections remained the same until 1947
except for numbering. (Sec. 10 became par. 4347 of 1878 R.S. and Sec. 340.11
of 1925 Wis. Stats. Sec. 11 became par. 4352 of 1878 R.S. and Sec. 340.16 of
1925 Wis. Stats.)
In 1947 Sec. 340.16 (old Sec. 11) was renumbered 340.095 and amended
to read at end :
". . . be deemed guilty of murder in the third degree. In case the death of
the mother is thereby produced it is unnecessary to prove that the fetus was
alive when the act so causing her death was committed."
In 1955 the criminal code revision rewrote the abortion statutes into
present Wisconsin Statute Section 940.04 which provides as follows:
"940.04 Abortion. (1) Any person, other than the mother, who intention-
ally destroys the life of an unborn child may be fined not more than $5,000
or imprisoned not more than 3 years or both.
(2) Any person, other than the mother, who does either of the following
may be imprisoned not more than 15 years: (a) Intentionally destroys the
life of an unborn quick child; or (b) Causes the death of the mother by an
act done with intent to destroy the life of an unborn child. It is unnecessary
to prove that the fetus was alive when the act so causing the mother's death
was committed.
(3) Any pregnant woman who intentionally destroys the life of her unborn
child or who consents to such destruction by another may be fined not more
than $200 or imprisoned not more than 6 months or both.
(4) Any pregnant woman who intentionally destroys the life of her unborn
quick child or who consents to such destruction by another may be imprisoned
not more than 2 years.
(5) This section does not apply to therapeutic abortion which: (a) Is
performed by a physician ; and
(b) Is necessary, or is advised by 2 other physicians as necessary, to save
the life of the mother; and
(c) Unless an emergency prevents, it is performed in a licensed maternitj
hospital. .
(6) In this section "unborn child" means a human being from the time ot
conception until it is born alive."
The statutes defined abortion as manslaughter in the second degree from
1849 to 1947, and as murder in the third degree from 1947 to 1955. Since 19o5
the statute does not define it, but it still appears in statutes after murder
and ahead of manslaughter. „
And the statute continually refers to "destroy the life of an unborn child.
Clearly the aim was to protect the unborn child.
The Court in the Wade case said,
"The few state courts called upon to interpret their laws in the late lytn
and 20th centuries did focus on the States interest in protecting the woman s
health rather than in preserving the embryo and fetus."
The Court in this statement obviously could no tbe referring to the Wis-
consin law since it is self-evident that its purpose was to protect the embryo
and fetus.
437
The Court also stated :
". . . The word 'person' as used in the 14th Amendment, does not include
the unborn."
We contend this is a gratuitous statement with only specious reasoning
to back it up. It should have said, "The word person as we use it does not
include the unborn.''
The only logical conclusion one can draw from the court's statement is that
the House and Senate and the legislatures of the several Btates Intended bj
the adoption and ratification of the 14th Amendment to abolish the abortion
laws of the various states. This inconsistency in the court's decision was
clearly shown by Justice Rehnquist in his dissent in the Wade case.
There can be no question that the Wisconsin legislature with a law on the
books declaring the destruction of an unborn child to be manslaughter in 1 1 1« -
second degree had no intention of revoking that law when it ratified the 14th
Amendment.
Independent of the abortion laws Wisconsin has also shown its concern
for the unborn child in its welfare laws. Sec. 46.03(7) of the Wisconsin Stat-
utes on Children and Youth imposes on the State Department of Health and
Social Services the following duty :
"(b) When notified of the birth or expected birth of a child born or likely
to be born out of wedlock, see to it (through advice and assistance to the
mother or independently) that the interests of the child are safeguarded,
that steps are taken to establish its paternity and that there is secured for
the child (as near as possible) the care, support and education that would
be given if legitimate." (italics supplied)
This statute indicates a clear obligation of the state to safeguard the life
of an unborn illegitimate child, and not aid or abet the extermination of the
child. And that duty is not any recent innovation, but is traceable all the
way back to the time Wisconsin was a part of Michigan territory (See Laws
of Michigan, 1833, "Support and Maintenance of Illegitimate Children", Sec.
1, pp. 335, 336).
The Wisconsin Supreme Court has also protected the unborn child.
In Kwaterski v. State Farm Mutual Automobile Insurance Co., 34 Wis. 2d
14, (1966) the court held that "a viable infant who receives an injury and
by reason thereof is stillborn is a "person" within the meaning of sec. 331.03
of the Wisconsin Statutes (later 895.03 of Stats), so as to give rise to a
wrongful-death action by the parents of the stillborn infant." The court
further stated in that same case that it did not decide what the law would
be in the case of a non-viable unborn child, but its language indicated that
it would probably hold the same in such a case because the court quoted
favorably in its decision from Puhl vs. Milwaukee Automobile Ins. Co., 8
Wis 2d 343 (1959).
In the Puhl case the Court stated:
"The viability theory has been challenged as unrealistic in that it draws
an arbitrary line between viability and nonviability, and fails to recognize
the biological fact there is a living human being before viability. A child is
no more a part of its mother before it becomes viable than it is after via-
bility. It would be more accurate to say that the fetus from conception U
within its mother rather than as a part of her. The claim of a child injured
before viability is just as meritorious as that of a child injured during the
viable stage. The proof of such injury, of course, may be more difficult."
The Supreme Court decision in changing abortion from a crime to a con-
stitutional right leaves Wisconsin and the other states in a helpless Position
to cope with this heinous offense. Even the infamous Dred Scott decision did
not deprive the states of their right to regard slavery as a serious wrong
and to ban it from their jurisdictions.
The Wisconsin Constitution from its beginning banned slavery In Wisconsin
(Art. 1. Sec. 2) Nine vears after Wisconsin became a state with this pro
vision in its constitution, the U.S. Supreme Court in Scott v. Sandford, WJ
U.S. 393 (1857) declared that a slave was not a lejral person under the I
Constitution and had no standing in court; and held that the United .8
could not even prohibit slavery in the territories. Yet this decision did not
render void our Wisconsin constitutional provision banning slavery, it
still not legal to own a slave in Wisconsin despite the Supreme Court decision
that a slave was not a person under the U.S. Constitution.
438
In fact, the Wisconsin Supreme Court had declared in 1854, prior to the
Scott decision in In re Sherman M. Booth, 3 Wis. 13 (*1), 113:
"In Virginia he may indeed be a chattel, but in Wisconsin he is a MAN."
So however abhorrent the Dred Scott decision may have been, it did not
trample on the Wisconsin law and the human rights protected by it, as the
Wade case has done.
The fundamental purpose of government is set forth in our 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
theo^ rights Governments are instituted among Men . . ."
The only way the Supreme Court can square this clear statement of our
founding fathers with their interpretation of the Constitution in the Wade
case is to say that a man is not created until he is born; which is obvious
nonsense. Is a person created weighing 8M> pounds?
We submit the Supreme Court decision in Roe v. Wade is not merely an
erroneous interpretation of the U.S. Constitution but is in itself a massive
assault on and rupture of the constitution.
For long before the United States existed, and should it ever depart the
scene of world history, it was and will be the primary function of any gov-
ernment to secure Man's unalienable Right to Life.
The Wisconsin Citizens Concerned for Life petition and entreat the U.S.
Senate to overcome the Supreme Court decision by proposing a Constitutional
Amendment which will protect the Right to Life from its biological beginning.
There is no way to change the nature of the act of abortion, no matter
when it is performed. The euphemism "terminate a pregnancy" glosses over
the essence of the act of abortion which is deliberately to destroy a human
life precisely because it is a human life. If this were not a human life there
would be no clamor for the right of abortion.
What is life but a story of man's growth, physically, mentally and morally ;
to learn, to grow, to achieve, to mature, to love, to understand, and then to
shed our earthly straight-jacket for an immortal life? Is any part of this
life cycle less important than any other part? Who can make this determina-
tion?
Humanitarian feelings cause some people to advocate abortion, not on
demand, but in cases of rape, incest or possible deformities of the child. The
sentiment is understandable, but even here the right to life is still such a
basic, inalienable right that no such exception can legally be made. The
circumstances of conception do not change the essence of life as far as the
embryo is concerned. He is still a human being and deserves his right to
make his mark in the world even as all of us. With respect to deformities,
we do not destroy deformed or incurable people living amongst us. The num-
ber of amputees, blind, deaf and paraplegic people in the world who cherish
their own lives testifies to the fact that "life is more than the rainment."
We are reminded that John Keats was "doubly dead in that he died so young"
at the age of 26. What shall we say of all the children who never had a
chance to see the light of day?
The outlook is bleak for a reconciliation of the abortion issue. This is not
like the usual legal matter where some degree of accommodation by opposing
factions can be made. There is a basic philosophical question whether the
courts or legislatures like to face it or not. It has been reiterated that we
live in a pluralistic society; each person may have his own beliefs and cus-
toms; and each may go his own way. But this is only a limited truism. It
can be applied to the accidentals of life, but it cannot be applied to funda-
mentals. We still would not permit cannibals to pitch their tents in town
and practice their trade. Can a society continue to exist which does not have
some basic consensus of fundamental beliefs?
We are still living on the residuals of a civilization based on the teachings
of Christ and the prophets. These still influence the behavior and conduct
even of nonbelievers, culturally if not by conviction. But how long can our
civilization live off the residuals of a previous civilization? Our laws will
inevitably reflect our mores. Abortion on demand reflects a distinct deteriora-
tion in the regard for human life, caused by an erosion of religious and moral
beliefs. This is not inevitable. People who believe in the right to life of an
439
unborn child can reawaken in others, now morally dormant, this same con-
cern and thereby prevent our society from being torn asunder. Sayeth tin-
prophet in the book of Wisdom :
"God did not make death, nor does he rejoice in destruction of the living.
For he fashioned all things that they might have being ; and the creatures
of the world are wholesome, . . . For God formed man to be Imperishable;
the image of his own nature he made him."
Statement to the Subcommittee on Constitutional Amendments of the
Senate Committee on the Judiciary Respecting the Buckley and Other
Anti-Abortion Amendments
The Lake County (Ind.) Women's Council asks to go on record as opposed
to the Buckley and other anti-abortion amendments which would outlaw the
Supreme Court decision confirming the legality of reproductive freedom.
The Lake County Women's Council is an organization of women drawn from
over the county to work for the rights of women as equal persons before the
law, and to change the attitude of society wherever women are demeaned, dis-
criminated against, or dehumanized because they are female. We must seek to
bring about a better understanding of the sexes and to encourage women to
become whole persons capable of contributing in every field of endeavor for
the good of themselves, their families, the state, nation, and society. We be-
lieve women are at the core of life as co-creators with Divinity and that
women's needs and role in life should and must be recognized as central if
society is to flourish in peace and prosperity, and avoiding social ills which
begin as problems in the home when women do not have the tools and aids
for discharging their responsibilities.
The anti-abortion amendments proposed by the cardinals and bishops of the
Roman Catholic church would have the effect of making a tenet of their
religion the law of the land for all women of the United States. This would
breach the first amendment to the constitution which holds that freedom of
religion is to be preserved and that there be no establishment of any
religion.
This breach would open the way for other injuries and damage to the Bill
of Rights and Constitution which we need not go into here except to indicate
we are aware of the danger.
The anti-abortion measures also contravene civil rights laws protecting the
right of privacy and individuality of citizens. Family planning (which one of
the measures would also eliminate) and the "last resort" method for control
of reproduction must be allowed if the rights of citizens who are women are
to be respected.
We believe that women should have the right to control their own bodies
and that they can be trusted to be the kind of mothers a superior civilization
requires. Allowing abortion does not mean that these rights will he abused. In
time all women will become educated to know how to plan their families
without resort to abortion. But it should be available in emergency situations.
Statistics available from organizations and agencies working directly with
abortion indicate that most abortions now performed take place within the
first trimester and under safe medical supervision.
The heaviest argument for legalized abortion and against the Buckley and
similar amendments is that denying the right would not cud abortion practices.
Denial of the right would only mean a return to the days before it became
legal when thousands of women died every year through abortions performed by
illegal, "butcher" operations. Wealthy women have always had acr»
abortion; it is poor women who have had to suffer most. This amendmenl would
penalize the poor, especially, denying women the right to limit the size of
their families to what they can afford and care for.
It is the familv impoverished with the support of more children than the
breadwinner can earn a living for which produces the greatest proportion of
unwanted children. It is the unwanted children, the unloved. th(
(because their mothers cannot give them time enough when a household mount -
up duties like cooking, cleaning, laundering), who suffer dlsadvantag"
by being barred from education and other opportunities for good development.
440
and who later exact their penalty from society, consciously or unconsciously.
It is these poor families of mothers unable to control or limit the size of
their brood within their abilities to nurture them which spill their problems
into the public sector — delinquency, police, hospitals, the courts, the prisons,
institutions for defectives, cemeteries and even war. To require a woman to
become a reporductive drudge which the anti-abortion amendments would
compel, is to dehumanize women as mere breeding organisms.
Civilization depends far more on the intelligence and personal development
of its mothers and women than on any other single factor because women are
at the core of life and primary to its development. All other institutions are
secondary. The child has already been marred or damaged, or well-developed
and of greater potential by the time the secondary institutions and services
take over in schools or other institutions. "Quality" is a term much made of
these days with respect to education. We submit that "quality" people are the
first requisite. And quality people can only be produced by quality mothers.
A women cannot do justice to anyone else, her children, family, state or nation,
unless justice is first done to herself.
We agree wholly with the statement of Fr. Carl Lezah of Chicago in the
following quotation :
"As someone who has worked as a Catholic priest on the parish level, deal-
ing directly with the Catholic laity, I particularly deplore the latest attempt
by the Catholic bishops of Chicago to manipulate the political structures of
our free society in the name of supposed moral principles. No system of
ideology, including the finest of Roman Catholic theologians has ever estab-
lished that a fetus is a human person rather than an embryonic life. For
Cardinal Cody to continue to protend otherwise is an insult to intelligent and
sincere people trying to struggle with an enormously sensitive human and
social problem. To further attempt to drastically alter our American constitu-
tion with his proposed amendment is a denial of our fundamental American
tradition of the separation of church and state. Individual women must be —
and will be — free to make these kinds of significant decisions for themselves.
This is what a free society and real morality are all about." — Carl Lezakk
To us it appears obvious that the bishops and cardinals supporting the
anti-abortion measures are not so much concerned about the "right to life" of
the unborn as they are about keeping women a submerged sex for reasons that
have to do with the power and aggression of the Roman Church. They most
certainly are not concerned about the right to life of women. This has been
demonstrated all along by the practice in Roman Catholic hospitals in cases of
difficult childbirth, where only one of them may survive. The Roman Catholic
practice is to kill the mother to save the baby, which very often cannot sur-
vive anyway. This is done even if the mother has a large family who are then
left motherless.
The name of this practice is "mother-murder." We have always been incensed
that nothing is ever done to correct this immoral practice, which is also
harmful to social well-being.
By their insistence on the Buckley and/or othed anti-abortion amendments
the bishops and cardinals have made it abundantly clear that they are the
enemies of women and of the development of a better society. By "manipulat-
ing thte political structures of our free society in the name of supposed moral
principles" the bishops and cardinals would destror our democracy for the
authoritarian ideology of the Roman Church, which past history has shown to
be fatal to the development of peoples.
We hereby go on record to uphold the Supreme Court decision confirming
the right of reproductive freedom. We also go on record to maintain that the
rights of women are of more importance to the well-being and future develop-
ment of this nation than tenets of a foreign-based religion whose prelates are
themselves uncommitted to our democracy. As officials of a foreign-based
organization which claims political power as well as being a religion, the priests
and prelates are in truth manipulating their own laity, who are true citizens,
into subverting our democracy. We do not take kindly to this abuse of American
hospitality granted to this political-religious organization which takes such
advantage of our religious freedom.
We ask that the Supreme Court decision confirming reproductive freedom be
supported by the Committee and by the Congress.
441
Donald Lynn Billman, J.D.,
Columbus, Ohio, Autjust ?, 1974.
Mr. Biech Bayh, Chairman,
Subcommittee on Constitutional Amendments,
U.S. Senate,
Washington, D.C.
In Re— Proposed Human Life Amendment to the United States Constitution
Deab Senator Bayh: Please permit me to initially convey my compliments
to you for your thorough attention to the complex issue of "abortion on de-
mand"—the manner in which you are conducting the hearings on the proposed
Human Life Amendment to the United States Constitution is a credit to the
Congress of this Nation. It is regrettable that so many members of the Sub-
committee are conspicuous for their absence.
The subject of "abortion on demand" is perhaps one of the most controversial
issues of our day and one which I felt compeled to get involved in at an early
date due to my belief that this is one of the most horrendous practices followed
in this Nation since slavery and the slaughter of defenseless Indians. Ihe deci-
sion in Roe v. Wade, 410 U.S. 113 (1973), which held that the unborn baby was
not a "person" he was a "fetus", has not seen its like since Dred Bcott v. band-
ford which held that the Black Man was not a "person" he was a "slave —
he was a "chattel", a thing subject to the capricious nature of his master .
Today the unborn child is likewise subject to the capricious nature of his
"mother" ' The latter decision of the high court was reversed by loth amend-
ment and so possibly might the former decision be reduced to a bad mark
against the American system of justice-as an attorney I quietly hope that the
Supreme Court will reverse this disastrous decision in a subsequent case how-
eVThehbaSS S SSuaf rigMs is the Bin of RisMs-the ft* 10 amen*
ments— however it is the 14th amendment which championed the cause of
civil liberty for "all persons" and assumed the supremacy of the Constitution
and the rule of law, justice and reason over the fiickle nature of the human
rLe After 10 years of study and concern it is my opinion that this amend-
ment-the 14th-applies to the unborn child as well as the black, the Indian
Td the woman! It is my belief that the amendment is clear-that "no life shall
bf tSen without due process of law" and that "no person shall be denied
equal protection of the laws"! I am not "against" abortion but am opposed to
"abortion on demand"-we do not live in an Utopia and "some ra in must fall
but no class of persons should be deprived of any civil rights w bout due
nrocess of law"— no person should be deprived of the basic right of life
wXout a showing in a court of law that he has committed a capital crime or
That his existlnc! will cause the immediate death of an otherwise innocent
SeCT°hedsurvhnal of all civil rights and liberties is now in peril I! An amendment
is needed— a "Human Life Amendment"— to finish the work of the 14th amend-
ment The decision in Roe v. Wade et al. has punched a hole in the Bill of
Rights which will, if not corrected, erode and destroy this grea Nation of law
guSantleing individual liberty! It is crucial that : "Person" be » defloed-the
high court has fashioned a means of circumventing the aPP11^10"^*®^8.?
riJhts of the Constitution. A political philosophy alien to the foundation or
his Nation has initiated its attack upon the ^f^^^^SS^L^
sault against the basis of all legal rights-the individual s right .to continuem
existence "the right to life". It was no mere accide nt th jat*" attack ™
initiated by an assault upon the little unborn baby for he is the ™ost helpless
member of our society. The unborn child was ch OS en w »fh care for ^J™
epitome of the "unpopular client" and it was felt-poss 1W3 not incorrectly
that he would find new defenders, he is a client who can neither paj us, vote
for us, thank us or organize a riot. inmnd urxm
The implications of "abortion on demand" are apparent. If this inroad u^n
the vitality of the Constitution goes unchecked and reversed a most powerf ul
precedent will have been established for the proposit on .ttat an Jg™»
life may be snuffed out at the whim of "big brother [Orwells 1WI ir we
who believe in the Bill of Rights and true civil ■***£*}_??*■ i hand
defense of the unborn child we will one Jay soon find ourselves l with a hand
ful of "rights" as difficult to retain as a handful of sand for that right wnicn
442
is the sine qua non for all other rights — the right to life — has ceased to exist.
It is said that "this could not happen" — I would recall that, unlike the slave
and the Indian, the unborn child has continuously — until January 22, 1973 —
been afforded the protection of the law and our courts "in every instance and
for all purposes where it is for the benefit of the unborn child".
I have taken a great deal of your time Mr. Senator and I am grateful for
your attention. Hopefully history will not record that while our Nation lan-
guished with the tragedy of Watergate and debated the effect which that
occurrance and subsequent proceedings would have on the future of constitu-
tional law and the real threat and the fatal blow was going largely ignored —
you in your hearings on the Human Life Amendments stand at a most critical
juncture in our history.
I am writing to make myself available to you and the subcommittee at the
future hearing dealing with the law on this issue. For your review in evaluat-
ing my potential for making a meaningful contribution to your work I am
enclosing two published papers which I have written as well as a few selected
news clippings which will help explain my activities. [Two additional sets with
signed copies of this letter are also enclosed for distribution as you may
desire.]
I am presently Assistant Attorney General of Ohio and can be contacted
through my oflice at the State Oflice Tower, Columbus, Ohio 43215, telephone
1-614-^66-5414. My appearance, if that would be your desire, would be as a
concerned citizen and as an attorney and not as a representative of that office.
Because of my concern for the critical nature of this issue I would be happy
to use my vacation time to permit my release from duties with the State of
Ohio for the time required for attendance. If you will conclude that I might
be of assistance to the committee I would appreciate as much notice as possible
so as to afford me the opportunity to prepare testimony worthy of the honor of
appearing. It will also be necessary for me to secure assistance in the financing
of such a trip therefore the more advance notice the better — if the subcommit-
tee has a budget to assist witnesses appearing that would be appreciated.
Most sincerely,
Donald Lynn Billman
443
"EQUAL JUSTICE UNDER LAW"
The Law & The Little Unborn Baby
by Donald L. Billman, J.D.
The phrase "Equal Justice Under Law" is etched deep in
the granite above the United States Supreme Court Building,
Washington D.C., and has existed as long as the Constitution
to serve as the basis from which our legal system springs —
JUSTICE. Perhaps at no other time in our history has the
future of this guiding principle been so severely challenged.
Whether this will be a legal maxim or merely an assortment
of shallow words may well be decided in the days ahead.
The concept of justice does not mean that laws will pro-
tect some while exposing others to harm. The law which has
continually protected the Little Unborn Baby's interest in
all areas has now been disregarded in protecting his most
basic right — his right to live. All courts, including the
Supreme Court of the United States, are on record in affirm-
ing the duty of the powerful state to protect those who can-
not protect themselves. Courts regularly protect the indigent,
the mentally handicapped, the accused criminal and others
who occupy a position which prevents them from protecting
themselves.
It is no mere accident that the Supreme Court has never
ruled that the Little Unborn Baby's life may not be taken —
this is because it has long been assumed that laws restrict-
ing the performance of the operation known as abortion
were designed to protect the helpless unborn child. It was,
has been, and is recognized that the operation termed abor-
tion is unlike any other medical procedure — this is because
it involves the taking of a human life — therefore, the re-
gulating of the performance of such a procedure is not only
within the authority of the state but it is incumbent upon it
in the form of a duty to regulate such a medical operation.
The legal interest of the Little Unborn Baby, which has
continuously been protected, include all major areas of law
— property, tort, and equity. Courts and statutes have con-
sistently held that an unborn child can inherit from his
father who he may never see if that father is taken by death
before the child's birth. The courts protect the unborn
baby's property by appointing a "guardian ad litem" to pro-
tect the portion of the deceased person's estate belonging
to the unborn child. The unborn baby can even inherit from
his mother who may be taken by death before the baby's
birth This situation arises when a woman with child is, for
example, struck by a car and killed. Upon arriving at the
hospital following such an accident, medical procedure re-
quires that the doctor who pronounces the woman dead
examine her and upon noting that she is pregnant will per-
form a Caesarean section in an attempt to free the living
444
child from his dead mother. When the child survives such a
tragedy — which has taken his mother — that child will in-
herit from the estate of his deceased mother — even though
the child was "unborn" when the mother died.
Possibly the most convincing illustration of how the
courts protect the Little Unborn Baby is in those instances
when a court must order that a woman be given blood trans-
fusion — against her will — to save the life of her unborn
child. This situation commonly arises among those of the re-
ligious faith known as Jehovah's Witnesses, whose teachings
forbid the giving or receiving of blood transfusions. Most
notably courts in New Jersey and Illinois have ruled that
blood transfusions would be given to a woman who is preg-
nant and because of hemorrhaging needed that blood to sus-
tain her life and the life of her unborn child. The courts are
quick to point out that the woman's right to practice her re-
ligion under the First Amendment of the Constitution and
her right to privacy under the Ninth Amendment are sacred
rights and that the court would affirm her argument based
on these rights were they not being weighed against the
life of an innocent unborn child. The courts point out that
the right to life is the fundamental right under the Constitu-
tion, without which all other rights are meaningless.
Thus what has been attacked is not only a segment of
our society, but also the Constitution. Were this attempt —
to establish the right of one person to take the life of
another — successful, a most powerful precedent would
have been established for the proposition that there is no
"right to life." The basic right to live would then be viewed
as a "grant" or "privilege" received from the state and
therefore one which could be withdrawn at any time.
The actual argument put forth by those advocating
"abortion on demand" is that the Little Unborn Baby's life
is not "meaningful" — therefore his life may be taken. It
should be recalled that this argument was used to exter-
minate or reduce to slavery those who disagreed with the
Nazi regime in Germany. The United States has a constitu-
tion which some say would prevent such a thing ever hap-
pening in this country. The writer would point out to you
that not only are we attempting to do exactly that same
atrocious act today in the form of "abortion on demand"
type legislation, but that we have done it before. Two sad
pages out of the history of this country record those occur-
ances — the first was the "Indian" who could be killed or
imprisoned in complete disregard for the Constitutional pro-
tection afforded persons because it was said that he was
not a "person" — he was a "savage". The same fate befell
the "Negro," for he was not a "person" — he was a "slave."
We are now recording a third such shameful page in our
history books. During these days in which many give voice
445
to the importance of civil rights for the "Indian" and the
"Negro", we see some of the same "civil rights activists"
arguing that the right to abort — to kill — one's child is the
right of every woman. It is not this writer's intention to
here question the sincerity of these people, yet the writer
would be less than negligent if he did not observe that were
the "abortion on demand" movement successful no one
would henceforth have any "civil rights."
That some intend to change the structure of our society
by altering so as to effectively destroy the Constitution is
beyond doubt by this writer. Such a future, where there is
no constitution as we now have, has already been prophesied
by Adxley Huxley in his book "BRAVE NEW WORLD" and
George Orwell in his book "1984." These two authors speak
of a future "UTOPIA" in which "the state" has complete
control over all persons. Such a time as "1984" would not be
possible until and unless the Constitution of the United
States is destroyed. A word of caution, do not classify those
who seek to establish "abortion on demand" so as to effec-
tively destroy the right to life as "Communist." They art, in
most likelihood, no such thing but are in fact citizens of the
United States who, because of their "education" and own
misguided belief in their own infallibility, believe that they
know best how others should live. The state in "BRAVE NEW
WORLD" and "1984" was made up of just such individuals
who feel that the common people are incapable of regula-
ting their own lives. If the Constitution of the United States
should be destroyed the responsibility for that act will rest
with all the people. Those who blindly endorse "abortion on
demand" as a "cure-all" to the problems which this nation
now faces are acting in a negligent manner which cannot
exist side by side with the responsibility which is a part of
citizenship in a free society.
The attack on the Constitutional "right to life" was di-
rected against the Little Unborn Baby not by accident, but
because he is so helpless and powerless to defend himself
— he cannot thank, pay, or vote for his defenders. To sit by
doing nothing while a segment of our society is extermina-
ted is to contribute to that day when our conduct and be-
havior will be regulated by the state. The right of a woman
and her doctor to kill the "unborn baby" is no more a
"right" than the frontiersman had a "right" to kill a "savage"
or a plantation owner had the "right" to kill his "slaves."
The issue of whether the life of the Little Unborn Baby
may be taken without "due process of law" and without af-
fording him the "equal protection of the laws" as required
by the Fifth and Fourteenth Amendments to the Constitu-
tion will soon be decided by the Supreme Court of the United
States. The decision of those Nine Distinguished Judges may
well foretell the future of the Constitution and therefore
the future of all claiming protection under that Document
446
and her Flag. That decision will be the result of the efforts
of many — the attorneys who defend the Little Unborn Baby,
the legislators who write the laws and the people, and how
they respond to this issue, will have their influence in their
own unique way. These nine men, as they enter the Su-
preme Court Building on that day, will pass under that in-
scription which reads "Equal Justice Under Law" and when
they leave that great center of law the future of those
words will be firmly established — whether they are mere
words or the guiding principle for our society.
447
THE CASE
FOR THE UNBORN BABY
The Constitutional
Right To Life
by
Donald L. Billman, J.D.
REPRINTED FALL, 1971 FROM
A Publication of the Student Bar Association
The University of Toledo College of Law
Toledo. Ohio
Volume 4 Number 4 Spring. 1971
448
ABORTION
AS A LEGAL ISSUE
A DISCOVERY SPECIAL FEATURE:
THE CASE FOR THE UNBORN BABY:
THE CONSTITUTIONAL RIGHT TO LIFE
by Donald L. Billman
The Constitution of the United States is a law for rulers
and people . . . and covers with the shield of its
protection all classes of men, at all times, and under all
circumstances. '
The stakes are high-for the Unborn Baby, his life and for
those of us who have crossed that "bridge between (the) two
stages of life"2 the existence of the rights which are ours by
virtue of the Constitution including the right to continue in the
state of "being alive"
The assault against the basis of all legal rights-the
individual's right to continue in existence "The right to
life"— has been launched against the most helpless member of
our society. The Little Unborn Baby has been -recognized by
the courts to have interests deserving of protection in all major
areas of law-property, tort and equity. The law, which has
continuously expanded its protection of interest of the
Unborn Baby in accord with advances in medical science,
which has demonstrated conclusively the humanity of the
Unborn Baby, has been put in the anomalous position of
protecting the legal rights of one who it is argued, by those
classified by Professor Robert Byrn as "quality of life
jurisprudents"^, has no legal right to live.
The goal of the "quality of life jurisprudents" is to establish
that the individual does not have an "unalienable" right to life
but that "life" is only possible by the "grace" of the state and
that it may be withdrawn when the specific life has lost its
"usefullness" to society.
To establish this unique concept straight out of the
prophesy for the future of Orwell's 1984 and Huxley's
Brave New World the proponents of this future "utopia"
chose with care the epitome of the "unpopular client"— who
they felt, possibly not incorrectly, would find few defenders.
Were this inroad upon the vitality of the Constitution
successful, a most powerful precedent would have been
established for the proposition that an individual's life may be
snuffed out at the whim of "Big Brother" while circumventing
the safeguards of the Constitution.
The attorney and the jurist who does not rush to the
defense of the helpless Little Unborn Baby-a client who can
neither pay us, vote for us or thank us— may one day soon find
himself with a handful of "rights" as difficult to retain as a
handful of sand for that right which gives all other rights
meaning— the right to life— has ceased to exist.
The issue therefore is one of the gravest Constitutional
proportions— whether a life may be taken without "due
process of law" and whether a segment of society can be
deprived of the "equal protection of the laws", or stated
another way— whether "the shield" of the Constitution does in
fact, as Justice Davis believes, act to protect "all classes of
men, at all times and under all circumstances".
I. The Unborn Baby— An Autonomous Human Being
The human-ness of the Unborn Baby— the fetus— is the crux
of the "abortion" controversy for if the subject of the surgical
procedure termed "abortion" is not in fact a small human
being but is in fact "mere protoplasm" or a mere "appendage
of the woman" then there is nothing here of concern to the
law. The issue then, concisely put, is what is it that the mother
seeks to have removed from her body?
The issue of "what is life" is a medical question— and
medical science now recognizes that life is a continuum, from
conception to the grave. Modern science— embryology,
fetology, genetics, perinatology, and all of biology— has
established conclusively the essential humanity of the Unborn
Baby.
Professor Ashley Montagu of Columbia University has put
it very succintly-'the basic fact is simple: Life begins, not at
birth, but at conception".^ The "mystery of life" begins with
husband and wife in the constitutionally protected privacy of
the marital bed— thus the beginning of life for a third person.
It is in this instant that the fertilized female egg, which until
being fertilized by a male sperm cell was on its own
incomplete and even unable to preserve its own existence, in
the words of Professor Patten, has become the "initiation of
the life of a new individual". 5 The future of the new human
being has been established by acquiring half of his forty-six
chromosomes from his mother and half from his father.
The conceptus-the new fetus-is now in possession of the
qualities which begin the somewhat "secret" but sure journey
into the life cycle. The "genetic code" is present within the
labyrinth of the chromosomes which is composed of "genes"
which contain the complex chemical DNA (Deoxyribonucleic
Acid) which holds the secret of life and growth.
449
FOR THE UNBORN BABY . . (cont. from page 8)
In the first weeks the baby's body not only exists— it also
functions. The brain in configuration is already like the adult
brain and sends out impulses that coordinate the function of
the other organs. The brain waves have been noted at
forty three days. 6 On an electroencephalogram there is
possitive recording of electrical activity the absence of which
today is used as the absolute determination of death for its
presence signifies LIFE! The heart beats sturdily. The stomach
produces digestive juices. The liver manufactures blood cells
and the kidney begins to function by extracting uric acid from
the child's blood. The muscles of the arms and body can
already be set in motion.
A complete medical study of the Little Unborn Baby is
beyond the scope of this paper, but the writer would note that
from this point until adulthood, when full growth is achieved
somewhere between the 25th and 27the year the change in the
body will be mainly in dimension and in gradual refinement of
the working parts. It is most clear that the doctor of a
pregnant woman has two patients before him— the mother and
the baby. This is most obvious in the treatment unique for the
unborn child— a physician can now give a blood transfusion to
the Unborn Baby using a technique developed by Dr. A Liley
of New Zealand.
For those who desire visual evidence of the validity of Dr.
Liley's statement that the fetus "is ... a tiny human being, as
independent as though he were lying in a crib with a blanket
wrapped around him instead of his mother"? the writer would
direct attention to the outstanding series of photographs taken
by Lennart Nilsson, a Swedish photographer, which record the
growing baby .8
Medical science has demonstrated conclusively that human
life begins at conception-and that the child is as much a child
in those several days before birth as he is in those several days
after. The maturation process, commenced in the womb,
continues through the post-natal period, infancy, adolescence,
puberity, maturity and old age. With this recognition that life
is a continuum— from conception to the grave— the medical
inquiry ends and the Constitutional protections afforded the
Little Unborn Baby attach.
II. The Unborn Baby-and The Law
Possibly no more horrendous philosophy has ever been
advocated than the present thought that the Little Unborn
Baby is not protected by the basic provisions of the U.S.
Constitution-the 5th and 14th Amendments. Specifically the
proponents of "abortion on demand"— the "quality of life
junsprudents"-argue that the Unborn Baby's life can be taken
without complying with the basic requisites of "due process of
law" and that he need not be afforded the "equal protection
of the laws".
The primary argument of those advocating the destruction
of the Little Unborn Baby is that he is not a "person"
therefore :he Constitutional safeguards as found in the 5th and
14th Amendments do not attach. Not since the "Negro" was
excluded from the protection of the Constitution-for he was
not a "person" he was a "slave"-and the "American Indian"
was likewise denied the protection of the Constitution-for he
was not a "person" he was a "savage'-has terminology been
used to rationalize away what is so clearly unconstitutional
conduct."
That the Unborn Baby is not a "person" is so blatently void
of reason and lacks the slightest semblance of truth is evident
upon even a cursory examination of the legal status of the
Unborn Baby.
The writer would pause here to explain the semantic
problems which seem to cause so much difficulty when
examining the legal status of the Unborn Baby. The use of the
phrase "unborn baby" is perhaps somewhat imprecise but of
all terms possible no other is more accurate. For as Mr. Justice
Holmes has said "a word is not a crystal, transparent and
unchanged, it is the skin of a living thought and may very
greatly in color and content according to the circumstances
and time in which it is used". 9 The use of terms like
"embryo" or "fetus" which may be medically precise, is
grammatically awkward since they refer only to specific stages
of gestation. fO Words such as "quick" or "viable" are equally
unclear since the law's own use of such words reflect little, if
any. consistency with current medical practice. If If the
writer's use of the phrase Little Unborn Baby is troublesome
and makes one uncomfortable it is perhaps because the reader
has not been as realistic as the members of the Judiciary
Committee of the Minnesota House of Representatives who
found that "abortion involves the taking of a human life". 12
III. Legal Status of the Unborn Baby
Medical authority has recognized long since that the
child is in existence from the moment of conception,
and for many purposes its existence is recognized by the
law. The criminal law regards it as a separate entity, and
the law of property considers it in being for all purposes
which are to its benefit, such as taking by will or
descent. . . All writers who have discussed the problem
have joined . . . in maintaining that the unborn child in
the path of an automobile is as much a person in the
street as the mother . .."
The legal status of the Unborn Baby has thus been
summarized by Professor Prosser and its only shortcoming is
that it does not reflect the advances of the law since that
statement was penned in 1964.
It is not within the scope of this paper to develop the
entire spectrum of the evolution of the law as relating to the
recognition of the Unborn Baby as a "person", but a few cases
of significance will show conclusively that the common law of
past judicial decisions have placed the courts in the anomalous
position of protecting the legal rights of one, who it is now
• One of the anomalies of the "abortion controversy" is to note th«t
"women" who have had difficulty in establishing that they were
"persons "-albeit to a lesser degree than the "Negro" and the
"Indian "-and entitled to all rights under the Constitution have a
segment-the "Women's Lib" gals-who are now "demanding" the
"right" to destroy another, or slated another way. on achieving their
due rights their first act is to deny to another a right which thev always
had-the "right to live'-perhaps this is a blatant indictment of the
self^entered, non-caring about others, direction in which our Nation is
ring
(continued to page 11)
450
FOR THE UNBORN BABY . . . (cont from page 10)
argued, has no identity. It should be stated that this evolution
of attributing greater rights has grown and increased at a pace
reflecting the advances of medical science of providing a more
complete picture of the unique Little Unborn Baby in his
somewhat "secret home".
A. Tort Law
The "landmark decision" which upheld the right of
recovery for pre-natal injuries was Bombrest v. Katz 65F.
Supp. 46 (District of Columbia, 1946) in which the court
held:
From the viewpoint of the civil law and the law of
property, a child en ventre sa mere Is not only regarded
as human being, but as such from the moment of
conception . . . which it is in fact.
The Ohio Supreme Court spoke of the constitutional rights
of an unborn baby in Williams v. The Marion Rapid Transit,
Inc. 152 Ohio St. 114 (1949). The Court found the unborn
baby to be a "person"
If the common law protects the rights of the unborn
child and if every intendment in the law is favorable to
him, the inference is inevitable that such unborn child is
a person even though he is incapable himself to assert
them. If the unborn child may not legally be deprived of
his life, it is hard to understand how that life may with
impunity be totally impaired by the tort of a third
person.
The Court later stated in the same opinion:
To hold that the plaintiff in the instant case did not
suffer an injury in her person would require this court to
announce that as a matter of law the infant is a part of
the mother until birth and has no existence in law until
that time. In our view such a ruling would deprive the
infant of the right conferred by the Constitution to all
persons, by the application of time-worn fiction not
founded on fact and within common knowledge untrue
and unjustified.
B. Property Law
In the case of Phillips v. Herron 55 Ohio St. 478 (1896) the
court faced the question as to whether an unborn baby was
"in being" for the purposes of the statute restricting
entailment of real estate. The Court held that "a child in utero
at the testators death is in being."
C. Inheritance Rights
The question of whether a "non-viable" unborn baby was
in existence for inheritance purposes was considered by the
Supreme Court of Ohio in Evans v. Anderson 15 Ohio St. 324
(1864). The Court found that a child had a right to inherit
from his father who did not know of his existence at the time
of his death, saying:
It is doubtless a well-settled rule of law relative to
succession, and to most other cases in relation to infants,
that a child in ventre sa mere, as to every purpose where
it is for the benefit of the child, is to be considered in
D. International Law
Whereas the child, by reason of his physical and mental
immaturity, needs specific safeguards and care, including
appropriate legal protection, before as well as after birth.
... Preamble, Declaration of the Rights of the Child
The Little Unborn Baby has not only been recognized
by the domestic law of this Nation, but has also been the
subject of an international treaty to which the United States is
a signatory The United Nations Declaration of November 20,
1959 clearly states that the Unborn Baby must be protected
"before as well as after birth". Those states which permit, with
impunity, the taking of the life of the Little Unborn Baby are
violating one of the most sacred commitments of this
Nation-a treaty!
IV. Individualism and The Sanctity of Life
In the "abortion debate" individualsim finds some strange
bed-fellows who seize upon that outstanding quality by
claiming that anti-abortion laws wrongfully invade the privacy
of the individual, of the family and of the physician-patient
relationship. By some form of inverse reasoning, which is a
mystery to this writer, the "quality of life jurisprudents" argue
that it is an invasion of privacy to restrain the hand of one
who is about to destroy another. Conspiciously absent from
the arguments of those proposing "abortion on demand" is
any mention of the Unborn Baby's right of privacy.
A. Personal Privacy
The "right of privacy" is a very basic and highly cherished
right-however one which is nowhere expressly mentioned in
the Constitution or its amendments, but is only found in the
"penumbra" of those articles. When the "right of privacy" is
attached to an "express" right such as the "right of freedom of
religion" a very strong constitutional basis exists for upholding
the "right"-except when in conflict with the most basic and
foundamental of all rights-the "right to life".
The New Jersey Supreme Court was asked to decide just
such an issue— a conflict between the mother's privacy and the
life of the Unborn Baby. In Raleigh Fitkin-Paul Morgan
Memorial Hospital v. Anderson 14 the issue was whether the
rights of a child in utero were violated by his mother's refusal,
on religious grounds, to submit to a blood transfusion
necessary to preserve the lives of both the mother and the
Unborn Baby. The Court's finding favored the right to life of
the Unborn Baby over the mother's freedom of religion:
An unborn child, of a woman who did not wish to have
blood transfusions for the reason that they were
contrary to her religious convictions as a Jehova's
Witness, was entitled to the law's protection, and
appropriate order would be made to insure blood
transfusion to the woman in the event that the physician
in charge at the time should determine that blood
transfusions were necessary to save the woman's life or
the life of her child.
B. Physician-Patient Privacy
The proponents of "abortion on demand" assert that
anti-abortion laws unlawfully intrude upon the privacy of the
(continued to page 12)
451
FOR THE UNBORN BABY . . . (conL from page 11)
physician-patient relationship. The fallacy of their argument is
that they assume that the doctor caring for a pregnant woman
owes an obligation of good medical care to only one patient.
The fact of the matter is that the doctor has two patients-the
mother and the Unborn Baby! This was the finding of the
court in Jones v. Jones ' 5 which held that the Unborn Baby:
became a patient of the mother's obstetrician, as well as
the mother herself. In so holding, I can think of the
infant as a third-party beneficiary of the mother-doctor
contract or perhaps a principal for whom the mother
acted as agent
The idea that a doctor should be free of legal restraints in
making decisions-that he. the doctor, is above the law-has
been rejected by the Supreme Court in Barsky v. Bd. of
Regents. 347 US 442 , at 449 119541:
It is elemental that a state has broad powers to establish
and enforce standards of conduct within its border
relative to the health of everyone there. It is a vital part
of a state's police power. The state's discretion in that
field extends naturally to the regulation of all
professions concerned with health ... including
medicine.
The role of the doctor in society has been defined by Dr.
Viktor E. Frankl as:
ID t is not the doctor's province to sit in judgment on
the value or lack of value of a human life. The task
assigned to him by society is solely that of helping
wherever he can, and alleviating pain where he must; of
healing to the extent that he can, and nursing illness
which is beyond cure. ">
C. Family Privacy
The "right of family privacy" is also a most fundamental
right which is most zealously guarded until the conflict
involves the right of a person to live. In the case of Gleitman v.
Cosgrovel? the family— Mom, Dad and Little Jeffrey— sought
damages from the two doctors who had attended Mrs
Gleitman during her pregancy on the grounds that they had
not been advised that Little Jeffrey might be born with
"defects" due to the mother's having contracted German
measles during her pregnancy. The Gleitman's argued that they
were thus deprived of the opportunity to destroy Jeffrey by
abortion. The Court, in dismissing the complaint, emphasized
the primacy of Little Jeffrey's right to live:
It is basic to the human condition to seek life and hold
on to it however heavily burdened. If Jeffrey could have
been asked as to whether his life should be snuffed out
before his full term of genstation could run its course,
our felt intuition of human nature tells us he would
almost surely choose life with defects as against no life
at all. "For the living there is hope, but for the dead
there is none, " Theocritus.
The right to life is inalienable in our society.
We are not faced here with the necessity of balancing the
mother's life against that of her child. The sanctity of
the single human life is the decisive factor in this suit in
tort. Eugenic considerations are not controlling. We are
not talking here about the breeding of prize cattle It
may have been easier for the mother and less expensive
for the father to have terminated the life of their child
while he was an embryo, but these alleged detriments
cannot stand against the preciousness of a single human
life to support a remedy in tort.
Though we sympathize with the unfortunate situation in
which these parents find themselves, we firmly believe
the right of their child to live is greater than and
precludes their right not to endure emotional and
financial injury.
The Gleitman decision illustrates the inappositeness of
the Supreme Court decision in Griswold v. Connecticut 18 m
the "abortion" controversy. The decision of the Supreme
Court in Griswold which is the major contention of the
proponents of "abortion on demand" as supporting their
position, recognized the right of marital privacy by voiding a
statute preventing dissemination of contraceptive information
and devices.
The proposition that the decision of the High Court relating
to contraception should be extended to protect the "right" of
a woman to destroy the product of conceotion after it has
taken place is so ludicrous as not to merit any serious
consideration. It is good law that no court should tell a
husband and wife what they can do in the privacy of their
bedroom to prevent conception-however once conception
takes place and a new life has begun there is a new issue which
extends beyond the bedroom.
The contraceptive relationship is between the husband and
wife-the abortion relationship is between the parents and
their child. The Little Unborn baby changes the entire
picture— his interest must then be considered. To equate
contraception and abortion is to fly in the face of the basic
facts of biology.
The Honorable Judge Don J. Young speaking for the court
in the landmark decision of Steinberg et al. v Rhodes et al.1^
put this debate to rest saying:
(Tlhe legal conclusions in Griswold as to the rights of
individuals to determine without governmental
interference whether or not to enter into the process of
procreation cannot be extended to cover those
situations wherein . . . the preliminaries have ended, and
new life has begun. Once human life has commenced, the
constitutional protections found in the Fifth and
Fourteenth Amendments impose upon the state the
duty of safeguarding it.
V. Our Legal Structure in Perspective
A man 's life, like a piece of tapestry is made up of many
strands which interwoven make a pattern; to seperate a
single one and look at it alone, not only destroys the
whole but gives the strand itself a false value.20
The mother who comes before a court of law, or a
legislative assembly, arguing that her "right to privacy" is
being violated, when the state acts to restrain her hand which
would destroy another, runs counter to the wisdom of Judge
Learned Hand and demeans her own existence for if her "life"
were not the primary concern of medicine and law she would
(continued to page 13)
452
FOR THE UNBORN BABY . . . (cont from page 12)
have no rights. Were we to ignore the admonition of Judge
Learned Hand and give the "right to privacy" a standing out of
context to the whole we would not only destroy the whole
but would have debased and rendered shallow what would
have otherwise been a sacred right. The strength of the
American Judicial System rests upon the sanctity of life-the
most precious of the individual rights without which all others
become meaningless.
The "quality of life jurisprudents" who advocate the
"propriety" of the destruction of the Little Unborn Baby on
the basis that his existence is not "meaningful" within the
"utilitarian ethic" of "the greatest good for the greatest
number"21 are promoting a philosophy alien to our system of
law which is based upon the Judeo-Christian concept that all
life is precious. The corner-stone of our system of
law-JUSTICE-cries out for the repudiation of "abortion on
demand".
If the life of the Little Unborn Baby may be forfeited for
someone's mere convenience sooner or later all citizens will
find that they are at the mercy of a state which can grant or
withhold at will the fundamental rights essential to the
protection of life, liberty and property. The handwriting is on
the wall when one contemplates two recent bills submitted in
the legislatures of Florida-an euthanasia bill (H.B. 3184. Oct.
1969)-and Hawaii-a compulsory sterilization bill (S.B.
1421-70).
When our law and the basis from which it springs-the
sanctity of life-is placed in proper perspective it will be seen
that the Constitution provides only one resolution of this
issue-that the Little Unborn Baby's life is protected by the
shield of that great rule of law-to take the Little Unborn
Baby's life in violation of the 5th and 14 Amendments is to
violate his Civil Rights.
CONCLUSION
The basic problem, it would seem, is not that we often
behave badly but that we may be losing our sense of
ethics; the American Consensus about what is good and
bad, what is to be done and what avoided, may be
breaking down.22
The attack on the LIFE of the Little Unborn Baby may
well prove to be the final assault upon the greatest chance a
people ever had to be free-the Constitution of the United
States. The fabric of our society is being rent and unless we are
quick to heal the wound the damage done may well be this
Nation's final illness. Were we to permit the taking of the life
of the Little Unborn Baby we will have ignored the prophetic
warning of Mr. Justice Brandeis:
Our Government is the potent, the omnipresent teacher.
For good or ill, it teaches the whole people by its
example. Crime is contagious.^
Footnotes
1. Davis, J., Ex Parte Milligan 71 U.S. (4 Wall) 120. 18
L.Ed. 281, 295 (1866).
2. A. Montagu, Life Before Birth P. 205 (1964).
3. see Byrn, Abortion-on-Demand: Whose Morality? 46
Notre Dame Lawyer 5 (1970).
4. Montagu, Life Before Birth, New York: New York,
American Library, Inc., P. 2 (1964).
5. Patten, Human Embryology 3rd ed.. New York,
McGraw -Hill Book Co., (1968).
6. Still, J. Washington Academy of Science. Vol. 59, P. 46
(1969).
7. Liley, Modern Motherhood, P. 26 27 (1969).
8. see Nilsson's photographs appear in Life Before Birth, Life
Educational Reprint No. 27.
9. Towne v. Eisner 245 U.S. 418, 425, 38 S.Ct. 158, 159,
(1918).
10. see Black's Law Dictionary (4th ed., 1968), and Dorland's
Illustrated Medical Dictionary (24th ed., 1965).
11. see Byrn, Abortion-on-Demand: Whose Morality? 46
Notre Dame Lawyer 5. 9-14. (1970).
12. Hilgers and Shearin, Induced Abortion: A Documented
Report, Written for presentation to the Minnesota State
Legislature P. 1, 1971.
1 3. Prosser, Handbook of the Law of Torts Section 56, at 355
(3rded. 1964).
14. Raleigh Fitkin-Paul Morgan Memorial Hospital v.
Anderson 42 N.J. 421, 201 A. 2d. 537, cert, denied, 337
U.S. 985 (1964).
15. Jones v. Jones 208 Misc. 721, 144 N.Y.S. 2d. 820, (Sup.
Ct., 1955).
16. Frankl. The Doctor and the Soul, P. 37 (1969).
17. Gleitman v. Cosgrove, 49 N.J. 22, 227 A. 2d. 689 (1967).
18. Griswold v. Connecticut 381 U.S. 479 (1965).
•19. Steinberg et al. v. Rhodes et al Fed. Supp , (Civil
Case No. 70-289, Three Judge Federal Court, 1970).
20. Judge Learned Hand, Proceedings in Memory of Mr.
Justice Brandeis, 317 U.S. xi (1942).
21. see Statement by Rev. Waldemar Argow, "Women's
Abortion Rights Debated", P. 15, The Toledo Times.
March 31, 1971.
22. Cogley, Introduction, in Natural Law and Modern Society,
P. 13.(1962).
23. Olmstead v. United States, 227 U.S. 438, 485, Brandesis J.,
Dissenting.) (1928).
* The reported form is Steinberg et al.
F. Supp. 741 (1970).
Brown et al, 321
453
Coalition for Freedom of Choice,
Minneapolis, Minn.. March ). /.97.J.
Senator Birch Bayh, Chairman,
Subcommittee on Constitutional Amendments,
U.S. Senate, Washington, D.C.
Dear Senator Bayh: The undersigned organizations, constituting the Coali-
tion for Freedom of Choice, do hereby submit the enclosed testimony regarding
S.J. 119, which is currently hefore the Subcommittee on Constitutional
Amendments.
Sincerely,
.Tidy SILVERMAN,
Coordinator.
Ad Hoc Physicians Committee for Freedom of Choice.
Association of Universalist Women.
American Association of University Women, Minnesota Division.
Abortion Counseling Service of Minnesota.
Abortion Rights Counsel of Minnesota.
Dakota County Citizens for Freedom of Choice.
DFL Feminist Caucus of Minnesota.
Elizabeth Blackwell Women's Health Center.
GOP Women for Political Effectiveness.
Minnesota Feminists.
Minnesota Psychological Association.
Minnesota Women's Political Caucus.
Minnesota Women's Abortion Action Coalition.
National Council of Jewish Women, Minnesota Sections.
Planned Parenthood of Minnesota.
Religious Coalition for Abortion Rights.
Social Action Committee of the First Unitarian Society of Minneapolis.
Socialist Worker's Party.
Southside Comunity Health Coalition.
Twin Cities Chapter, National Organization for Women.
Twin Cities Women's Union.
United Church of Christ, Minnesota.
West Suburban Council for Women's Liberation.
Women's Rights Committee of the Minnesota Federation of Teachers.
Young Socialists.
Zero Population Growth.
Testimony Regarding S.J. 119
The Coalition for Freedom of Choice represents 28 Minnesota professional,
service, religious, political and feminist organizations, having a total member-
ship of more than 70.000 Minnesotans. We share the belief that abortion should
be a matter for individual decision, based on each person's convictions, and
we support the Supreme Court rulings of January 22, 1973, which made it
possible for people to exercise their freedom of conscience in tins matter.
We wish to express our strong opposition to S.J. 119. which i< now before
the Senate Subcommittee on Constitutional Amendments. We believe that the
definitions established by the Supreme Court are consistent with the principles
of good health care, with the pluralistic nature of our society and with its legal
framework. S.J. 119 is in conflict with all of these.
First, we believe that this amendment represents a step backward in terms
of health care. The restrictive abortion laws which were struck down at last
in part an attempt at protecting the health of women. Women, however, con-
tinued to seek abortions, often getting them at the hands of illegal abortionists,
and the protective laws were the cause of untold suffering. Prior to legal abor-
tion, the complications arising from criminal abortions constituted, in areas
like New York City, the major single cause of maternal death. In areas where
abortion has been legalized for a statistically measurable amount of time, there
has been a marked decrease in maternal death rates. By denying safe, legal
access to abortion to most American women. S..T. 119 is unlikely to eliminate
it. Instead, it will remove abortion from the protection of medical standards
of health care and relegate it once more to the status of an unregulated
criminal procedure.
454
Second this amendment is in direct conflict with the traditional separation
of church and state in this country. Our laws have protected freedom of re-
ligion and freedom from religion, guaranteeing freedom of conscience to both
majority and minority points of view. By imposing the theology and beliefs of
one or 'two denominations upon all citizens of this country, S.J. 119 sets a
dangerous precedent. • , x.x~*
Finally we do not believe that the implications of granting legal personhood
to what S J. 119 refers to as the •unborn" have been evaluated in the context
of our entire legal system. There appears to be no historical precedent for rec-
ognizing the "unborn" as Dersons in the constitutional sense. In addition, enact-
ment of this amendment could throw into chaos entire areas of long-established
law having no relationship to abortion.
It is our hope that S.J. 119 will be rejected as both unnecessary and unwise,
and that future congressional action may be directed toward developing pro-
grams of education, family planning services and contraceptive research that
will help reduce the need for abortion.
Association for Grand Jury Action, Inc.,
Rochester, N.Y., March 31, 1974.
Senator Birch Bayh, Chairman.
Subcommittee on Constitutional Amendments,
Senate Office Building, Washington, D.C.
Dear Senator Bayh : Even though your hearings on the abortion amendment
have been concluded may we ask that this letter and accompanying petition
be made a part of the hearing record.
We take no stand on the matter of abortion but are interested solely in the
constitutional process. This amendment is not the proper way to counteract a
Supreme Court decision. The petition suggests a better method.
Didn't we learn a long time ago that a constitutional amendment wouldn't
stop alcohol and resulted in widespread evasion? The same will happen if this
amendment is passed.
Please consider the arguments in our petition.
Very truly yours,
Robert E. Kesel,
President.
Petition Before the U.S. Senate and House of Representatives
Association For Grand Jury Action, Inc., 67 Northampton Street, Roch-
ester, New York 14606; Ralph Boryszewski, Chairman, Board of Direct-
ors, 67 Northampton Street, Rochester. New York; and Robert E. Kesel,
98 Royleston Road, Rochester, New York; petitioners
vs.
Barber B. Conable, Representative. House of Representatives, House Office
Building, Washington, D.C. ; Frank Horton, Representative, House of
Representatives, House Office Building, Washington, D.C. ; Jacob Javits,
Senator, U.S. Senate, Senate Office Building, Washington, D.C. ; and
James Buckley, Senator, U.S. Senate, Senate Office Building, Washing-
ton, D.C, respondents
congress has many alternatives to supreme court decisions
Our Constitution was never meant to be cluttered by amendments cover-
ing every single subject matter that causes and arouses controversy such as
abortion. Senator Buckley is proposing a constitutional amendment to bann
abortions when in reality this could be brought about by the mere enactment
of statute. Congress too often avoids its rightful responsibilities and lets the
Supreme Court make vital decisions because the court does not have to run
for relection. The Congres is obligated to review all supreme court decisions
which it has failed to do. In instances where the Supreme Court decided
cases in which it had original jurisdiction, the Congress could change such
decisions only by amending the Constitution. Such amendment could (1)
consist of revising a specific Supreme Court decision or (2) deprive the
court of the right to hear under such original authority in all future cases.
455
The Congress may by lair limit the Court's right to decide cases dealing with
the abortion matter. Art. Ill Sec. 2 of the Constitution empowers congress to
make "exceptions and regulations" to the Court's appellate jurisdiction. The
Constitution thusly explicitly makes our elected legislators the supreme judges
by simply majority vote of what kinds of cases the Court may decide. Our
founding fathers wanted the Congress, not the courts, to decide at times the
extent to which the federal judicial powers should he used, where it was not
specifically spelled out.
Congress has the power, by enactment of a statute to hit at what it deems
judicial excess. A controlling number of lawyers in Congress, however, have
failed the people by their attempts to serve two masters, one the judicial
the other the legislative. Congress therefore has not used its power exclusively
in the people's interest.
The judges were never intended to be the sole arbiters of the Constitution.
The makers of the Constitution decided that Congrss should have the duty to
define what constitutional limitations it was empowered to curb in cases of
excess by the Courts. Congress has failed in this duty all too often. The House
in 1964, did vote 218 to 175 to forbid the Court to interfere in state legisla-
tive apportionments. Under Article III this majority vote was sufficient. The
Senate wrongfully sought passage of the measure as a constitutional amend-
ment and the required two-thirds majority missed by seven votes.
If it desired Congress could limit by law Supreme Court membership to
only one or at most two judges and could further forbid such judges from
citing dissenting opinions to mollify any of its decision.
Under our Constitution, Art, V a constitutional amendment requires a
two-thirds vote of Congress and ratification by three fourths of the State
legislatures. We are in effect permitting a combination of five supreme court
judges with one third of either Senate or House to radic ally amend our
Constitution.
It is up to our elected representatives to discipline and limit the powers
of our judges for the people are denied such a direct check on the judges
by themselves.
Wherefore petitioners pray : that Senator Buckley's amendment be scrapped
as improper and unnecessary and that legislaiton instead be introduced in the
matter of abortions;
that the Congress exert its proper authority in all future matters where the
Court has attempted to make ours a government by decrees of five unelected
judges.
Respectfully submitted,
Ralph Boryszewski,
Chairman,
Board of Directors.
Robert E. Kesel,
President.
American Association of University Women.
Schenectady, N.Y., February 21, 1974.
Senator Birch Bayh,
Senate Office Building,
Washington, B.C.
Dear Senator Bayh : I understand that some of the anti-abortion amend-
ments which have been proposed will be coming before a Sub-committee
headed by you, and I am therefore writing to express the concern of the New-
York State Division Board of AAUW. The New York Division has long sup-
ported abortion reform as well as good medical care, available to everyone,
including women.
The proposed Amendments to the U.S. Constitution and the amendments at-
tached to other legislation which would reverse or hinder the implementation
of the U.S. Supreme Court decision on abortion are of great concern and pre-
sented before the Board of Directors at their February meeting, with the fol-
lowing resolution adopted :
Whereas, the New York State Division, American Association of University
Women, has a long-standing record of support of abortion reform : and
Whereas, the New York State Division supported the 1970 New York Abor-
tion Law; and
456
Whereas, the New York State Division recommended, in accordance with
a 1970-71 membership survey, that the New York State Legislature refrain
from adopting any restrictive or discriminatory amendments to the 1970
Abortion Law ; therefore, be it
Resolved, That this New York State Board of AAUW recommend to our
representatives in the New York State Legislature and the U.S. Congress that
no restrictive amendments to the U.S. Constitution or to any other federal
legislation be adopted which would subvert the 1973 U.S. Supreme Court de-
cision regarding abortion.
Our membership of almost 10,000 women firmly supported the New York
Abortion Law of 1970 and voiced disapproval of restrictions or discriminatory
amendments which would reduce the availability of abortions or deny this
medical care to the indigent.
It would seem that the law as it now stands is a proper one for a pluralistic
society. It permits, but does not compel, a woman to have a medically-safe
abortion with the decision made according to her own convictions and cir-
cumstances. It respects all religious convictions, but does not set one above
another . . . this is of paramount importance to our society. We, therefore,
urge that your committee reject any measures to reverse or block the intent
of the 1973 U.S. Supreme Court decision regarding abortion.
Very truly yours,
Mabjorie Kagay,
Chairman, NYSD Legislative Committee.
Men's Rights Association,
St. Paul, Minn.
Position on Abortion
The Men's Rights Ass'n leaves conclusions on the legality or morality of
abortion to its members. However, we firmly support the right of men to
equality of decision with women in matters of abortion. Our stand rests on
both biological and constitutional grounds.
Biologically, we know that abstention from sexual activity prevents preg-
nancy. No sex, no fetus. No method of birth control is 100 percent effective
when there is sexual intercourse between fertile persons. Women after puberty
and before menopause produce one or more eggs every month. If unfertilized,
the menstrual cycle continues. If fertilized, menstruation is prevented, and
the development of the individual begins. Without sperm, no babies would
be born.
The fetus never is part of the woman ; its tissues never mingle with hers.
She simply provides the proper aqiieous enviornment for the development of
the individual. That individual's genetic make-up is determined equally by
the father and the mother.
The Preamble to the U.S. Constitution says the purpose of the Constitution
is to secure the blessings of liberty "for us and our posterity." Everyone has
a right to produce children, men as well as women. To leave the decision on
abortion to women is to deny all men their constitutional right. If the deci-
sion stands, the right of a man to preserve the life of his offspring is sub-
servient to the whim of a woman. This is an outrageous and intolerable blow
at the most fundamental human right.
457
taken from the Appendix of the author' 8
article, "Abortion and Public Policy:
What Are the Issues?" in the New York
Law Forum, vol. XVII, no. 2, 1971.
NARAL
NATIONAL
ASSOCIATION
FOR REPEAL OF
ABORTION LAWS
Tm Major Issues and the Ar<,i mi ntation is i hi \bortion Di hmi
r Mil I ( HOORF
Some of I he issuer arc basic, having 10 do with
whether abortion should be permissible and legal
under any circumstances; others are more specific,
dealing with particular aspects of proposed legislation
such as permissible indications, limitations to hospital
facilities, etc.; others concern the anticipated difficul-
ties in implementing a law involving moderate or dras-
tic changes 1 lie reader can easily distinguish these
three categories in the condensed argumentation
below The author wishes to draw the reader's atten-
tion to the format of the following presentation The
discussion on the left paraphrases the issue as pres-
ented by the parly raising it: the discussion on the right
paraphrases the opposing view.
Ethical— Moral Religious Issues
Opponents of liberalization
Life begins at the moment of conception; the
fetus has a right to life; abortion is murder
("lynching in the womb").
It is just one step from abortion to euthanasia;
legal ahortion reflects and encourages declining
morality and loss of reverence for the sanctity
of life.
3. Promiscuity will be encouraged by legal abortion;
sexual misbehavior should be punished ("she had
her fun, now let her pay")
Proponents ol liberalization
Life began eons ago; the question is when does a
human person begin some say at conception,
some at nidation, some at quickening, some al
viability, some al birth, some al a later dale; the
assignment of personhood is arbitrary and dif-
fers among failhs l! ahortion were considered
by society 10 be murder, there would be sonic 30
million women behind bars. If fertilised o»a were
considered persons, we would require regis-
tration and burial of all spontaneously aborted
fetuses (including many expelled with late men-
strual flow). A hydatidiform mole starts as a
fertilized egg, ends as a mass of cells, and could
in no way be described as a person. A blueprint
is not a house, an acorn is not an oak, DNA is
not a person.
Abortion and euthanasia are separate issues
(though determining the end of ihe human per-
son is as difficult a question as determining the
start): we set speed limits al 60 MPH and do not
necessarily then move them lo 70 MPH tone
step does not necessarily lead lo another), rever-
ence for life includes concern for ihe quality of
children born and consideration for the rights
and well-being of women unwillingly pregnant
Fear of pregnancy is notoriously inefficient
as a deterrent to sexual behavior Why should
the woman be punished and not the man? Why
should an innocent child also be punished? Does
the punishment fit the crime?
• B A . 1959 Cornell University; MA. 196* Hunter College; M.S. 1968 Columbia Un-
iversily; Staff Associate. Demographic Division, The Population Council. City of New York
458
Proponents oj liberalization
In a pluralistic society one religious faith 4.
should not be permitted to impose its views on
others by law, though it may make every effort
to do so by persuasion.
Mi niiAt
Opponents oj liberalization
A physician is trained to preserve life, not to
destroy it.
Abortions in late pregnancy will result in the 2.
killing of viable fetuses who will cry in surgical
trash cans before they die.
Abortions should be limited to hospitals, prefer-
ably with committee approval required and
weekly or monthly quotas.
Abortions should be performed only by licensed
physicians, or only by board-certified obstetri-
cians and gynecologists.
Opponents ol liberalization
This may be true for less serious issues on which
the various religions differ, but on the quesiion
of abortion, those who believe it to be equivalent
to murder are duty-bound to make every ef-
fort, including legislative restriction, to prevent
its occurrence.
Proponents ol liberalization
This is a narrow view of medical responsibility;
physicians arc also concerned with the quality ot
life and the preservation of health mental and
physical —of the woman and her family.
Late pregnancy abortions are due to a) proced-
ural delays in hospitals, b) the impossibility of
early determination of some forms of deformity
and c) changed circumstances or denial of preg-
nancy—none of which will be legislated away.
Improved administration, easier availability of
anonymous pregnancy detection and pregnan-
cy counseling, and widespread educational ef-
forts will prevent most women from obtaining
abortions— legal or dangerously illegal late in
pregnancy. (Proponents are not in agreement on
the issue of determining a permissible gestation
limitation by law. many would prefer it to be lell
to the medical profession's responsibility; others
approve a limit of 28 weeks, 26 weeks. 24
weeks, 20 weeks. 18 weeks. 16 weeks, 12 weeks.)
These restrictions are mainly attempts to limit
the number of abortions. Proponents are not in
agreement on the medical advisability of re-
striction to hospitals or to hospitals and ap-
proved clinics, but they uniformly oppose ob-
structive committees and quotas.
This, too, is merely an attempt to limit the
number of abortions. While proponents are not
in agreement on the medical advisability of
abortions performed by paramedical personnel
(nurse midwives) acting under a doctor's
supervision, most would agree that an abortion
performed by a trained paramed is likely to be
safer than one by a psychiatrist or dermatolo-
gist; the disagreement lies not in the ability of
parameds to perform routine abortions by suc-
tion, but in the occasional emergency requiring
more highly trained personnel.
459
Opponents
Contraceptive services should be offered instead 5
of legalizing abortion. (However, not all oppon-
ents of liberalization would support this sugges-
tion.)
There won't be enough physicians and hospital
beds to accommodate the mass of women
who will seek abortions.
Nurses and other hospital personnel will be un-
willing to participate in such an operation.
Proponents
Of course contraceptives should he more widely
available and promoted, however, in the present
state of contraceptive technology, and giun the
continuing possibility of human error in the use
of even the best methods, abortion is needed as
a backstop; its use is not preferable to contra-
ception, but onee a pregnane) occurs, it is the
only means of birth prevention.
While states which have liberalized abortion
laws may have experienced initial pressure on
personnel and facilities, this does not appear to
have remained a continuing problem As deliv-
eries decrease in number and as bungled illegal
abortions require less hospital lime and space,
the legal abortion demand will proh.iblx turn out
to be less on balance
Some may initially find participation repugnant;
some may continue to do so. their right to refuse
should be granted, but in most situations to
date, there have been sufficient personnel to fill
Proponents
The physician often believes that it is in the best
interests of the mother to perform an abortion;
good medical practice is deterred by restrictive
laws.
Consider the tremendous costs in hospital staff
and facilities and impersonal danger and suffer-
ing of the public health aspects of illegal abor-
tions poorly performed; women will abort, one
way or another, whatever the law says.
Substitute measures will not alleviate the men-
tal and physical health problems associated
with unwanted pregnancy, excessive childbear-
ing or pregnancies occurring in rapid succession.
The original reason for passing restrictive abor-
tion laws was not for the protection of the fetus
(there were no or few Catholics in the legisla-
ture at the time), nor for the protection of public
morality, but for protection of the women from
a then-dangerous surgical procedure, more
dangerous than childbirth. Since the reverse is
now true (childbirth is more risky than hospital
abortion), the law ceases to be constitutional."
Opponents
1. In a matter such as this, it is not moral or good
medical practice— to sacrifice one life unless the
other is in danger. It would not be correct to
license the killing of other persons, just because
some practitioners decided it was good medical
practice to do so.
2. These may be tragic cases, but alternatives to
legal abortion should be developed instead: ade-
quate sex information and contraception, facili-
ties for adoption or homes for unwed mothers,
adequate social insurance and housing so that
these do not constitute reasons for illegally
aborting.
3. Yes they will.
That may be true, but there arc now new, com-
pelling reasons for retention of the restrictive
laws, whatever the reason for their original pas-
sage.
" See Means. The Phoenix o/ Ahorlional Freedom I; a Prnumbral or Smth- Amendment Right About to Ar
Legislative Ashes of a Fourteenth-Century Common-Law Liberty7. 17 N.Y.L.F. 335 (1971)
' From the \inrleenlh-( enlurv
460
Social Issues
Opponents
Legalizing abortion in this state will create an
abortion "mecca" for the entire country.
2. Legal abortion abroad has not eliminated illegal
abortions.
If abortion had then been legal, Beethoven
wouldn't have been born, and possibly some of
you senators here wouldn't have been born,
and my lovely third child wouldn't now exist.
Legal abortions should be limited to state resi-
dents only.
Abortion is genocide; it is an attempt by people
in power to eliminate poor and Third World
people.
Proponents
Legal abortion will decrease the number of un-
wanted children, battered children, child abuse
cases, and possibly subsequent delinquency, drug
addiction, and a host of social ills believed to be
associated with neglectful parenthood.
Proponents
This was the warning in Colorado (first state to
modify) and each successive state; such has not
proved the case. A look at abortion ratios in
Hungary, Japan, and even Scandinavia, and a
comparative look at ratios in the United States
will suffice to set at rest the description of New
York, or Baltimore, or Denver as "abortion
capital of the world."
Mere modification doesn't, in fact, eliminate il-
legal abortion; it only makes a dent. But far-
reaching liberalization (as in Japan and Hun-
gary) does drastically curtail it (as reflected in
decreased deaths and hospital admissions for
"incompletes"), but the residual can be attrib-
uted to remaining restrictions and lack of pri-
vacy within the legal registration system.
And possibly Hitler wouldn't have been born
either. We do not miss the many persons not
born because they were spontaneously aborted.
If Beethoven's father had coughed at the criti-
cal moment, a being other than Ludwig would
have been born instead.
If the abortion "mecca" argument fails to pre-
vent liberalization, then last-ditch efforts to
curb the numbers of abortions performed takes
the form of suggestions for residency require-
ments. Not only are they probably unconstitu-
tional but the medical delivery system has been
found adequate to handle the influx of non-resi-
dents wherever la«s have so far been liberalized.
Under restrictive laws, poor women suffer
most, as reflected in their disproportionate
mortality and underrepresentation in the few
hospital abortions performed under restrictive
laws. Legal abortion will be made available on
a voluntary basis to those women who want to
use it — there is no suggestion for coercive meas-
ures in a call for liberalization.
Opponents
Society would do better to make substitute
provision for unwanted children with adequate
institutions and benefits to enable each child to
have a warm and loving home. Many women who
do not want a child when they discover their
pregnancy do change their minds and love the
child when" it is born and vice versa. It cannot
461
Proponents
Legal abortion will decrease the number of ille-
gitimate births
Legal abortion could decrease the tragedy of the
birth of deformed children.
Legal abortion provides, the only humane dis-
position of a pregnancy resulting from rape or
incest.
Under restrictive laws, rich women with know-
how obtain safe legal or quasi-legal abortions,
while poor women bear unwanted children or arc-
butchered by back-street abortionists.
A bad law. unenforced and unenforceable, fos-
ters disrespect for the law in general.
The population explosion compels us to take
every means necessary to curb our growth rale.
Since contraception alone seems insufficient to
reduce fertility to the point of no-growth, and
since population experts tell us that eliminating
unwanted fertilty would go a long way toward
achieving replacement ferility, we should permit
all voluntary means of birth control (including
abortion) so as to avert the necessity for coer-
cive measures.
Legal abortion will result in a reduction in wel-
fare rolls. (As has often been remarked, the
abortion reform effort makes strange bed-
fellows.)
Opponents
Statistical!) he proven that children born to
women denied legal abortion lare an\ worst
than those presumably willingly conceived; ir-
responsible parenthood stems from many
causes and should be dealt with accordingly, un-
wanted children can turn out to be creative
genuises. contributing much to society
Although we are alarmed b\ (he surging in-
crease in illegitimacy, society must find alter-
nate w.i\s t<i preventing it sex education, ade-
quate contraception or of dealing with it once
it occurs adoption services, child care allow-
ance, jobs lor unwed women
Deformed children have as much right to live as
others; main deformed persons lead normal and
constructive lives II you sanction the disposal of
deformed fetuses, you may soon also decide to
do away with the elderly and the useless, or the
non-productive adult
Tragic as these cases may be. that is not
adequate justification lor the destruction of
human life. (Opponents do. however, sometimes
find rape so abhorrent that they would make
an exception.)
That is a matter of discriminatory application
of the law. not of its substance. Neither group
should seek or obtain an abortion, sale or unsafe.
legal or illegal
Many laws are difficult to enforce; that is not
sufficient justification for (heir eradication.
The United Slates is not experiencing a popula-
tion explosion. Problems of pollution and en-
vironmental degradation are due more to other
causes (increased affluence) than lo population
growth. Growth is good for business. If growth
seems detrimental lo our quality of life, then we
should step up family planning programs utiliz-
ing contraception only, avoiding the necessity for
including abortion. If you can use abortion to
control the size of the population, then you will
also justify eunthanasia and genocide-
There you are genocide, the elimination of
"undesirables " Society must make adequate-
provision lor its need) not merely ensure their
non-birth.
Rights and Responsibilities
Opponents
The father should have some say, or equal
say, since it's his fetus too.
Proponents
He's not a "lather'' (any more than she's a
"mother") until a child is born. He may con-
tribute 50rr of the genes, but he docs not have
to bear and care for the outcome \ husband's
consent clause violates the woman's right to
462
Opponents
The Fetus has a right to live; it is not just a blob 2.
of tissue or a part of the woman's body.
Proponents
I . A physician has the right to practice medicine
as he sees fit; he should not be limited in his
choice of advice and procedure if a medical so-
lution to the problem presented to him is feasi-
ble. He or she also has the responsibility to re-
fer a patient for care if he or she cannot in good
conscience perform an abortion. Public funds
should not be used for facilities where no abor-
tions may be performed.
2. The family has a right to determine its own size,
using all technology available.
It is a woman's right to control her body, to 3.
determine the timing and extent of her own fer-
tility.
Proponents
control her own body. Some husbands may
not be present, some partners may not be
husbands, and in case of disagreement and a
husband's denial of abortion the woman is sub-
ject to compulsory pregnancy and involuntary
servitude.
We're back to the religious argument over
whether the Ictus is a person or orjt.^JUi an re-
solvable conflict. In virtually all i nitcd States
law. however, a fetus cannot claim legal rights
of property, inheritance, or damages unless and
until it is born alive.
Opponents
As noted earlier, the availability of the means
does not justify their use; one need 30! -Ffiy ~-
medical solution to a social, economic, or per-
sonal problem. At the very least, we demand a
conscience clause in any liberalized law which
would prohibit discrimination against non-»
participating hospital personnel; this is not
adequately insured by the Medical Practices
Act or the Hospital Code.
No such right exists, it is the moral duty of each
married couple to engage in responsible sexual
relations, which need not necessarily result in
uncontrolled fertility.
The rights of the individual woman must be
weighed against other rights those of the fetus
and of society to uphold its moral integrity.
Psychological Issues
Opponents
Women undergoing abortions suffer severe and ' •
lasting psychological sequelae — regret, remorse,
guilt.
Proponents
The right to privacy in the bedroom (i.e., sexual
matters) was established by the Supreme Court
decision in Griswold v. Connecticut ."
Proponents
Women undergoing the degradation, danger,
and expense of a clandestine abortion are quite
likely to experience negative after-effects, but
this is not true in situations where abortion is
legally sanctioned and widely accepted. While
many women are known to be hospitalized with
mental illness following childbirth, such severe
psychosis following abortion is virtually un-
known. Psychological effects may follow sterili-
zation or appendectomy, or any surgery for that
matter.
Opponents
The right to privacy does not extend to a
"right" to murder the innocent.
381 US 479 (1965).
463
U.S. Senate,
Washington, B.C., March 5, 1911,.
Hon. Bibch Bayh,
Chairman,
Subcommittee on Constitutional Amendments,
Committee on the Judiciary,
U.S. Senate,
Washington, D.C.
Dear Mr. Chairman: I am writing in behalf of the members of the Wood
stock (Vermont) Right to Life Committee, who have sought my aid and as-
sistance in the following matter.
The membership of the Committee is most anxious to have their statement
in support of the Helms Human Rights Amendment included in the transcript
of the hearings vou will be holding tomorrow and Thursday, March 6th and
7th.
I would deeply appreciate your complying with this request.
Thanking you, I remain
Sincerely yours,
Robert T. Stafford,
U.S. Senator.
Enclosure.
Woodstock Right to Life Committee,
Woodstock, Vt.
We, the undersigned members of the Woodstock Right to Life Committee
support the Helms Human Rights Amendment, or any Constitutional amend-
ment which protects the right to life from conception to natural death. We
base our support on the Declaration of Independence which endows us with
the unalienable right to life.
We know, as do all thinking persons, that life begins at conception. Since
each of us was once a fertilized ovum, it is clear that the fertilized ovum is
human life and, therefore, is entitled to the protection of the Constitution of
the United States of America.
Frances W. Gillett
Jane B. Dutton
Lillian C. Phelan
Mildred P. Whitney
Beatrice Gyra
Joan R. Johnson-
Thomas F. Dutton
Terry Dietz
Francis G. Dietz
Sarah M. Dietz
Alice Frick
Abortion : The Court Decision and Some Consequences of a Constitutional
Amendment
(By Phillips Cutright, Department of Sociology and Karen B. Cutright. School
of Law, Indiana University. Bloomington)
introduction
Recent actions bv anti-aobrtion Congressmen and Senators to by-pass normal
legislative routines suggest a real possibility that the Supreme Court decision
on abortion will be nullified by a Constitutional amendment. The purpose oj
this article is to lay some groundwork from which one may judge various
claims of anti-abortionists and to assess the likely consequences ol a BUG
ful effort to repeal the Court decision. .
It is not enough merely to say you support the Court decision— one should
knoiv what one is supporting. Similarly, it may help stiffen resistance to B
proposed Constitutional amendment if its consequences are spelled out.
After reviewing the facts in each of the cases beard by the Court we sum-
marize the Court's reasons for finding in favor of the appellants. The probable
consequences of the Court's decision are then described. Finally, some conse-
quences of a reversal of the Court decision that would follow from a < onsti-
tutional amendment are given, and some suggestions for local activities tnat
may help check the anti-abortion movement are offered.
464
THE COURT'S DECISION
Roe v. Wade
In Roe v. Wade the Court was confronted with three appellants, a pregnant
unmarried woman, suing on behalf of herself and other women similarly
situated, who desired a safe, clinical abortion which was impossible for her
in Texas, the state of her reisdence, and which she could not afford to obtain
by traveling to another jurisdiction ; a physician who was facing prosecution
for performing allegedly illegal abortions, and a married couple who stated
they were told that because of the wife's health, pregnancy would present
complications, although it would not seriously endanger her health, and who
wished to be able to secure a safe, legal, clinical abortion in the event of a
contraceptive failure. The Court dismissed the doctor's suit on the ground
that he could raise the issue of the unconstitutionality of the statute in the
prosecutions pending against him. It also dismissed one which was too specu-
lative to subject to judicial scrutiny.
The Court did find that the pregnant woman, called Jane Roe. had stand-
ing to sue. The District Attorney of Dallas Co., Texas, against whom Roe
had originally brought her suit in a Federal District Court, claimed that Roe
did not have standing to sue because, although sbe was pregnant at the time
she instituted suit, that pregnancy had ended by the time the appeal was
heard (some 3 years later), and, therefore, she had no present injury capable
of judicial resolution. The general rule for appeal is that the issue must not
have been made moot either by some event or by the passage of time ; that is.
it must be as capable of judicial resolution at the time of appeal as it was
when it was first presented to a court. The Court took a realistic approach,
noting that the 266-day gestation period of the human female virtually as-
sures that in every such case the woman will be non-pregnant at the time
of appeal, and that while a woman may be pregnant more than once she
may still be unable (and unwilling) to be pregnant simply for appellate pur-
poses. Therefore, it held that because pregnancy is both a common condition
and one " 'capable of repetition evading review,' " Roe's case was not mooted
by termination of her pregnancy.
Looking next to the purpose behind the 1898 Texas statute, the Court con-
cluded that in prohibiting all abortions except those necessary to save the
life of the mother, the legislators could have had only three things in mind.
The first was a Victorian concern with prevention of illicit sex ; but if this
was the purpose of the law, it had no relation to the statute because the
statute made no distinction between married and unmarried women. The
second reason proposed as the purpose of the statute was to protect women
from the dangers of abortion. This, in fact, seems to have been the reason
for the Texas as well as other statutes. Abortion before antisepsis and modern
medical techniques was much more dangerous than carrying the child to
term. The third reason preferred for the abortion statute was the state's
interest in protecting pre-natal life. The Court here noted that the predomi-
nance of scholarly evidence indicated that this was not the case ; however.
the Court refused to disregard a state's interest in this area even though this
interest was not the reason behind the statute.
Jane Roe had challenged the statute on the ground that it violated her
First, Fourth. Fifth, Ninth and Fourteenth Amendment rights. It is within
the meaning of the first four of these that the Court has found a right of
privacy, not specifically mentioned in the Constitution. The Fourteenth Amend-
ment requires that for such a right to achieve the status of Constitutional
protection it must be a personal right of a fundamental nature, one that is
"implicit in the concept of ordered liberty." In past decisions, the Court has
found a right or zone of personal privacy in the right to marry the person
of one's choice, the right to procreate, the right to limit the number of chil-
dren through contraceptive use, the right to rear one's children according to
one's own values, and the right to educate one's children according to per-
sonal precepts. However, none of these are absolute rights: they are all
subject to the interest of society as a whole. Thus, while one has a right to
control the uses of his body, he cannot endanger the rest of society by re-
fusing to submit to vaccination.
In Roc r. Waric the Court held :
The right of privacy, whether it be founded in the Fourteenth Amendment's
concept of personal liberty and restriction upon state action, ... or ... in
the Ninth Amendment's reservation of rights to the people, is broad enough
to encompass a woman's decision whether or not to terminate her pregnancy.
465
The detriment that the State would Impose upon the pregnant woman by
denying this choice altogether is apparent Specific and direct harm, med-
ically diagnosable even in early pregnane; may be Involved. Maternity, or
additional offspring, may force upon the women a distressful lilt' and future
Psychological harm may he imminent. Mental and physical health may lie
taxed by child care. There is also the distress, for all concerned, associated
with the unwanted child, and there is the problem of bringing a child into a
family already unable, psychologically and otherwise to care for it. In other
cases, as in this one. the additional difficulties and continuing Btigma of
unwed motherhood may be involved.
Although the decision to have an abortion comes within the woman's right
of privacy, because the right is not absolute, at some point during her preg-
nancy the state's interest in protecting her health and potential life of the
fetus becomes sufficiently compelling to "sustain regulation of factors that
govern the abortion decision." Because abortion during the flrsl trimester
of pregnancy is safer than carrying the child to term, the state has no logical
interest in safeguarding her health by denying abortion.1 During the second
trimester, however, abortion becomes more difficult from a medical stand-
point, and then, to protect her health, the state may regulate abortion. How-
ever, since we are dealing with a fundamental personal right, state regula-
tion must be narrowly drawn so as not to infringe too greatly on that right.
Therefore, the state is limited in its intervention in the abortion decision.
It may require that the abortion be performed by a licensed physician in a
facility that is state-licensed, for that would be consistent with its interest
in protecting the health of the woman.
Although the Court refused to find, as the state of Texas urged, that the
fetus was a person within the meaning of the Fourteenth Amendment, it did
hold that once the fetus had survived the viability i i.e.. it could live outside
the womb independent of its mother), then the interest of the state in pro-
tecting potential life was sufficient to allow it to proscribe abortion entirely,
unless the life or health of the mother was threatened by continued pregnancy.
Doe v. Bolton
The second case before the Court. Doe v. Bolton, involved a married woman
who had three other children, one of whom had been placed for adoption : the
other two were in foster homes. She lived with her parents and their eight
other children because her husband had left her and she had no means of
support. She had been in a state mental hospital and was advised that an
abortion was less dangerous to her health than pregnancy and caring for a
child. She declared she was unable to support another child, just as she was
unable to support her other three children. Mrs. Doe was a resident of
Georgia and sought an abortion under that state's liberalized abortion law
which permitted abortion in cases where it was necessary to save the life
of the mother, to prevent a serious threat to health, or in cases where the
fetus was the product of a rape, or was physically or mentally defective. To
secure an abortion the statute required that the case come within one of the
above exceptions, that it be so certified in writing by a physician, and agreed
to in writing by two other physicians after their separate personal exami-
nations of the woman. These decisions then bad to be approved by three staff
members of a hospital accredited by the Joint Commission on Accreditation
of Hospitals and licensed by the state board of health. The abortion had to be
performed in one of those hospitals, and the woman had to be a resident of
Georgia. , .. ..
Mrs. Doe petitioned an accredited hospital for an abortion after securing
all the examinations and certifications necessary from physicians. Her peti-
tion was denied. She then sued the District Attorney on behalf of herself
i There were 16 deaths rein tod to the 402,059 legal abortions n New Fort City over
the 1970-1 0-^ period— or 4 deaths per 100.000 legal abortions. This mortality risk may
he compared tc the most recent <v.w.u estimates of maternal mortality from de-
nvorie?Pand complications of pregnancy childbirth and the Puerperinm -27 deaths
nor 100000 live births. By race the risk of maternal death In 1968 was 17 among
whites and 64 among nonwhite mothers per 100,000 live births. Hence the conclusion
that the risk of mortality from legal abortion is much lower than Is the risk Of
mortality related to carrying to torn.. It is worth noting thai the risk of death from
Seal abortion goes ° to T about zero when the gestation perl ind method ol abortion
is under """weeks and sucti.,,, is used. In New York, for example .there was one
death among 265,363 legal abortions using suction In the 1970-1972 period ha.
SetS occurred In the firs, year. No deatijs from ^»*^°V^p5£t BE)
recorded among the 105,851 suction abortions since July 1. 1971. (J. Pakter. 1873]
466
and other women similarly situated. The basis of the suit was substantially
the same as that of the Roe case, an unconstitutional infringement of the
right to personal privacy.
Thus, in this case the Court was concerned only with the medical proce-
dures required by the state and the extent to which they impinged on the
plaintiff's right to privacy which had been established by Roe. As to the re-
quirement that the abortion be performed in a hospital accredited by the
Joint Commission on Hospital Accreditation, the Court found that no other
medical or surgical procedure was required to be done in a hospital so ac-
credited, so long as the physicians were licensed and the hospital itself
licensed by the state board of health. The state offered no reason why an
abortion had to be performed in a hospital which was accredited. Other far
more difficult procedures were carried out in non-accredited hospitals, and
accreditation took place only after the hospital had been operating for a
year. Since there was no reason why accreditation had any relation to pro-
tecting the woman's health, the requirement had no connection with the
purpose of the statute and could not be upheld.
Similarly, the state of Georgia failed to show why the abortion had to be
performed in a hospital facility. It made no showing why an abortion done
in the first trimester could not be as safely performed in a non-hospital
facility, and that provision therefore had no relation to the purpose of the
statute either.
The requirement of approval of the abortion decision by a staff committee
was held to be invalid for the same reason. No other medical or surgical
procedure required the approval of the three staff members (especially not after
three other physicians had determined it was proper). Because no hospital
need admit a patient for what is essentially elective surgery (barring the
case of the mother's life), and because the statute exempted any staff mem-
ber from performing or assisting an abortion if so doing would conflict with
a moral or religious belief, the hospital had sufficient protection of its own
interests without requiring the additonal "imposed overview." The Court
further pointed out that the process of committee approval takes approxi-
mately 15 days (16 in Mrs. Doe's case), and this comes after the woman has
already submitted to three examinations, another time-consuming process.
This time element adds additional risk for as the pregnancy continues, the
danger to the woman increases.
The Court disposed of the requirement of concurrence of two other physi-
cians along the same lines. "Required acquiescence by co-practitioners has
no rational connection with a patient's needs and unduly infringes on the
physician's right to practice."
As to the requirement that the woman be a resident of the state, the Court
found that this was not based on any policy of reserving state-supported
facilities for state residents, as the statute applied to private facilities as
well. There was no showing that the Georgia facilities were overburdened
by Georgia residents nor that other types of surgery were forbidden to persons
from out of state.
SUMMARY
The sum of these two decisions means simply that during the first tri-
mester of pregnancy, a physician may perform a requested abortion without
imposition of criminal penalties or other regulations by the state. During the
second trimester, the state may regulate the performance of abortion to the
extent that it may require a licensed physician perform it and do so in a
licensed facility. During the last trimester, the state may proscribe abortion
altogether, unless one is necessary to save the life or preserve the health of
the woman. It does not mean that abortion is now "on demand." No one can
demand that a physician perform this service. Also, no woman can be forced
to have an abortion she does not want.
When Does Human Life Begin?
Our summary of Roe v. Wade and Doc v. Bolton gives little attention to
the Court's comment on the main claim of anti-abortion groups — that abortion
is murder because life begins at the moment of conception. Actually, the
Court dealt in some detail with this issue.
The problem inherent in finding a solution to the legal question of when
human life begins had been well stated earlier and in the New Jersey Su-
preme Court by Justice Weintraub : "Contraception and abortion have this in
467
common, that whereas in most areas of criminal prohibition, the fact of evil
is evident to most people, here there is evil or none at all depending wholly
upon a spiritual supposition . . ."
In short, people "cannot agree upon the point at which a living thing
should be thought to be human in its being."
Opinion of both state and church authorities has swung back and forth
over the centuries. The Court noted that until the mid-1800's many Western
scholars, theologians and lawmakers maintained that life began when t la-
fetus quickened — that is, when the pregnant woman could feel movement.
However, the common law of England and the Colonies treated abortion
lightly, if at all. Thus, at the time the American Constitution was adopted it
was ". . . doubtful that abortion was ever firmly established as a common
law crime even with respect to the destruction of the quick fetus." In Eng-
land it was 1S03 before even post-quickening abortions were first made felonies
— this "new" law was amended over the years, and finally rescinded in 1967.
The first American statute (Connecticut. 1821) prohibited only those abor-
tions performed after quickening. These post-quickening laws were not passed
to protect, the unborn — rather they were legislated to protect women from
the enormous risks of mortality in a period when even simple surgery in-
volved a major risk of death. Referring to our state anti-abortion laws tin-
Court found that such laws ". . . are not of ancient or even of common law
origin. Instead they derive from statutory changes effected for the most part
in the latter half of the 19th century." Most of the early state statutes (after
the Civil War) "dealt severely with abortion after quickening, but were
lenient with it before quickening." Thus, the purpose of these laws was not
to protect the unborn, but to protect the mother. Further, "at least with
respect to the early stage of pregnancy and very possibly without such a
limitation, the opportunity to make this choice (abortion) was present in this
country well into the 19th century." Also. ". . . at common law. at the time
of the adoption of our Constitution, and throughout the major portion of the
19th century, abortion was viewed with less disfavor than under most Ameri-
can statutes currently (1972) in effect."
From the above and other facts the Court concluded that the intent of
early state laws restricting abortion was to protect the mother, not the un-
born. The argument that the states should protect prenatal life from in-
duced abortion rests on the theory that a new human life is present from the
moment of conception. This view lacks a legal precedent in the United States.
The Court found that no cases in law can be cited "that holds that a fetus is
a person within the meaning of the Fourteenth Amendment." Legal persons—
those entitled to protection by the Constitution— do not include the unborn.
The Court continued : "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." "There has always been strong support for the
view that life does not begin until live birth ... in areas other than criminal
abortion the law has been reluctant to endorse any theory- that life, as we
recognize it. begins before live birth or to accord legal rights to the unborn
except in narrowly defined situations . . ." In sum, "the unborn have never
been recognized in* the law as persons in the whole sense. In view of all this.
we cannot agree that, by adopting one theory of life, Texas may overrule the
rights of the pregnant woman that are at stake."
CONSEQUENCES OF THE DECISION
The immediate effects of the Court decision, if it is implemented, can he
measured in terms of health, the cost and accessibility of abortion to differ-
ent groups, the number of induced abortions that replace former illegal abor-
tions the number of new abortions .and the impact of legal abortion on fer
tility. It is also possible that a shift from illegal to legal abortion may
change contraceptive use and patterns of sexual behavior.
It is still too earlv to obtain an accurate national picture oi these various
effects, and our best guide to the likely impact of the Court decision comes
from the experience of New York City residents under their abortion-on-
request situation after July, 1970. The consequences of the court decision
for the nation should be reflected in New York. Fortunately this experience
has been evaluated by C. Tietze, M.D., an experienced, competent and reliable
researcher.
468
In his report to the Commission on Population Growth and the American
Future (in Westoff and Parke, eds., Social and Demographic Consequences of
Population Growth, Vol. I (Washington, D.C., Government Printing Office,
1972 : 579>ff. ) ) Tietze examined the probable impact of legal abortion on
fertility rates. He found this effect to be relatively small, because (in part)
U.S. fertility is already relatively low. Also, many women seeking abortion
are unmarried and/or young married persons avoiding timing failures; they
may replace the aborted fetus by a live birth later in their lives. Tietze also
reports the pre- and post-abortion (i.e., before and after July, 1970) record
of infant and maternal mortality in New York. Both measures of health
indicate a rapid improvement related to legalization of abortion.
Tietze recently updated his Commission paper with data for the 1971-1972
period (Family Planning Perspective 5 (Winter), 1973:36). The number of
legal abortions to New York City residents increased from 67,000 the first
year to 75,000 in the 1971-1972 period. The rate of abortions per 1000 women
aged 15—44 was 39 in the first and 43 per 1000 women 15—44 in the second
year. The legal abortion rate varies by characteristics of the population. For
example, the rate per 1000 women aged 15—44 was 72 for nonwhites and 32 for
whites and Puerto Ricans in the 1971-1972 period.
Careful analysis by Tietze indicates that between 70 to 80 percent of all
legal abortions would have been done illegally had the New York law not
been changed. The evidence behind such estimates notes (among many other
details) that the increase in the number of legal abortions from about 5,000
per year to 75,000 was not accompanied by a similar decline in the number
of births. Before legal abortion can cause a decrease in the number of births
it is necessary that the number of legal abortions exceed the earlier number
of illegal abortions. In New York City only some 20-30 percent of the number
of legal abortions represent a net increase — hence we find a relatively small
drop in total births, as compared to a much larger increase in the number
of legal abortions.
The 1971-1972 count of 75 thousand legal abortions thus includes 52 to 60
thousand abortions that would have been performed illegally, had the New
York law not been changed. It is the modest increase in the number of abor-
tions that accounts for a reduction of illegitimate births in New York in
1971-1972, the first decline observed since New York's illegitimate births were
first reported (1954) separately from legitimate births.
We noted above a large difference in abortion rates by ethnic group. A still
larger difference exists between married and unmarried pregnant women.
Tietze estimated 1500 legal abortions per 1000 live births among the un-
married : among married women the abortion ratio per 1000 live births is
about 100. By the same measure Tietze also finds that the poor are more
likely than the nonpoor to abort a pregnancy. In short, the groups most likely
to abort are poor, unmarried and nonwhite — the same groups with low levels
of effective contraceptive practice.2
The money cost of a legal abortion under the New York law is far less than
is found in states with more restrictions. Thus, one effect of the Court deci-
sion will be to reduce money costs, and make legal abortion available to
women otherwise too poor to afford it in the past. Also, legal abortions are
covered by various insurance and medical care programs that could not, of
course, pay for illegal abortion. Legal abortion is not only safer than illegal
abortion, but it is also cheaper — hence the sharp decline in illegal abortions in
New York reported by Tietze.
Tietze reports no indication that contraceptive use declined as a result
of abortion. Researchers Edwin Daily et al. (Family Planning Perspectives
5 (Spring, 1973:89)) also found no evidence of declining contraceptive use
in New York. They studied repeat abortion cases and traced these eases to
a relatively small number of abortion facilities that did not provide contra-
ceptive care to their abortion patients. Repeat abortion cases are rare when
patients are given contraceptive care. Tietze suggests that contraceptive use
may have increased in the population at risk of abortion, due to contraceptive
instruction and service in abortion facilities.
The view that sexual promiscuity will increase if abortion is legalized is
similar to the view that contraception increases promiscuity. These claims
have never been supported by a shred of evidence. All data pertaining to this
issue are indirect, but indicate that legal abortion does not stimulate a popu-
2 See Appendix for California data.
469
lation to a frenzy of sexual activity. Making legal abortion available can
hardly increase promiscuity among those already married, and aboul half of
all legal abortion cases are married women. The usual indicator of sexual
promiscuity among the unmarried— the illegitimacy rati — cannot be used to
show the stimulus that abortion allegedly gives to promiscuity because il-
legitimacy rates in foreign as well as the New York population all declined
after the introduction of legal abortion on request. We also know that fear
of an out-of-wedlock birth is rarely mentioned by unmarried persons still
virginal as a cause of their sexual inexperience. People do not avoid illicit
sex because of a fear of pregnancy, but for other reasons.
Finally, the stigma and indignities suffered by women seeking illegal abor-
tion are removed by legalization. In short, the consequences of legalization
of abortion seem favorable. Costs and stigma decline while dignity increac
Illegal and risky abortions are converted to safe legal abortions, and the
health of women and children benefit. Contraceptive use does not deteriorate
and may increase, while illicit sexual activity is unaffected. The small in-
crease in the total number of induced abortions under legal-on-request condi-
tions goes primarily to the poor and the unmarried, with the effecl of depress-
ing illegitimate births and welfare dependency.
CONSEQUENCES OF A CONSTITUTIONAL AMENDMENT
We now consider the changes that would occur if efforts to pass a Consti-
tutional amendment succeed. The amendment considered here is a "life begins
at the moment of conception" type similar to what has already been proposed
in the U.S. Congress, the legislatures of Indiana and other states. An alter-
native amendment returning to the states the power to legislate on abortion
could have similar effects to those listed below, if the state then passed (as
seems likely in many areas of the nation) its own "moment of conception"
law under the influence of the anti-abortion lobby. At best the second type
of amendment would take us back to the legal situation prevailing before
the Court decision of January 22, 1973.
If a moment-of-coneeption amendment passes, all the benefits from legal
abortion on request will be lost, perhaps for the next century. Abortions will
not cease — they will revert back to their former hidden, illegal and hence
uncounted status.
As illegal abortions increase, we will once again have hospitals treating
botched abortions, with the associated declines in maternal health. As the
costs of abortions rise, and access becomes more difficult, the poor and the
unmarried will, more than the middle-income and the married, be unable
to have abortions — thus increasing the numbers of their children. The right
to abortion, now defined as legitimate and proper, will be lost, and the in-
dignity of seeking an illegal abortion will be with us once again. However, if
the proposed amendment were adopted and enforced the consequences could
be even more severe.
When the law, which is to say the government, decrees the point at which
life begins, then it must extend protections from that moment on. Until now,
for most purposes the law extends protections to post-natal life only, and
defines life in those terms. If we ask the government to decree that life begins
at conception we ask the government to guarantee maximum protection to
one form of life at the expense of another. The government would become the
arbiter of the care the woman takes of herself perhaps before, and certainly
during pregnancy. Just as the state acts in loco parentis for post-natal chil-
dren, it would be forced to assume that role in areas where the fetus is de-
pendent on its mother for the rights given it by a Constitutional amendment.
The area of negligence law could be greatly expanded, for the fetus as to
human with rights from the moment of conception would be able to sue for
acts of negligence committed by its mother or third parties. (The government
would sue on behalf of the fetus.) This would run contrary to a long tradition
of not permitting family members to sue each other for acts of negligence in
that such suits tend to destroy familial relationships.
The most extraordinary effect such an amendment could have would be in
the determination of pregnancy itself. In order to guarantee Fourteenth and
Fifth Amendment rights the government must know the person to be pro-
tected actually exists. The only way to be sure that all fetuses are being
properly cared for by their mothers and not being aborted is to see who is
pregnant. That would require that every female who is unable to prove her
470
sterility submit to a compulsory monthly pregnancy test from the onset of
her first menses.
One pregnancy is determined, the burden would be on the woman to show,
in the event of fetal loss, that such loss was not due to an act or omission
on her part.
Similarly, if a woman needed to have an abortion to save her own life (for
example in the case of ectopic pregnancy) the fetus would have to have its
arguments represented since the consequences of a finding for the woman
would deprive the fetus of its life. Any deprivation of life under the pro-
posed amendment cannot be made without due process which means a trial
with representation by counsel in front of a jury.
It should be obvious that a Constitutional amendment that would convert
fetuses into legal persons entitled to due process and equal protection could
not and would not be enforced. Even the old laws aimed only at eliminating
induced abortion were not seriously enforced over extended periods of time.
If the original prohibition of abortion in the past could not reduce by more
than 20-30 percent the total number of induced abortions, why would one
suspect an amendment aimed at controlling spontaneous as well as induced
fetal loss could work in tomorrow's world? How would the pregnancy status
of the population be determined each month? Does anyone actually believe
that American women would submit to compulsory monthly pregnancy test-
ing? How would the legal system add more than one million jury trials a year
to its calendar? Would physicians be able to do anything other than sit in
courts day after day offering testimony on the probable cause of fetal loss?
The legal and health system would grind to a halt if a serious effort were
made to implement the amendment. If the amendment were merely ignored
then what purpose would it serve? It would stand only as a symbolic victory
for the anti-abortion crusade.
The passage of the amendment would probably have three main conse-
quences.
First, all the benefits of legal abortion on request would be lost.
Second, the majority of Americans who do not share the moral views of
the anti-abortion lobby would be subjected to a tyranny of the minority, and
their continued faith in the American political and legal system would be
jeopardized by the passage of an amendment which is to them hypocritical
on its face, unjust and brutalizing in its consequences.
Third, induced abortions would continue under illegal conditions at about
70 to 80 percent of the number under legal conditions — with the reduction in
numbers occurring disproportionately among the poor and the unmarried.
LOCAL COMMUNITY WORK
Meeting with Other Organized Groups
At the national level the American Medical Association, the American Bar
Association, the American Public Health Association, the American Asso-
ciation of University Women, the American Civil Liberties Union, the Na-
tional Organization of Women, the Izaac Walton League as well as other
conservation, women's medical and legal groups have supported abortion on
request. All major organizations concerned with human fertility (Planned
Parenthood-World Population, the Population Association of America, Na-
tional Organization for the Repeal of Abortion Laws. ZPCx, the Association
for Voluntary Sterilization) and other similar groups support abortion on
request. A variety of national religious organizations representing Protestant
and Jewish organizations, humanistic and ethical associations are also on the
record. In theory all these groups provide a basis for organized opposition to
proposed Constitutional amendments originating in Washington, or in the
States. The fact that no established secular national organization dealing
with medical, legal and the human problems of childbearing opposes the
Court's decision should be brought to the attention of legislators and the
public. Direct contact at the state and local levels between leaders of these
organizations should be encouraged. There is no reason for Planned Parent-
hood to "go it alone," when all these other groups share views similar to ours.
Public Opinion
All public opinion polls in the year or so before the Court decision showed
a large majority fa round two-thirds) in all areas of the nation favoring a
change in laws so abortion would be a matter between the woman and her
471
physician. All polls showed an overwhelming majority of adults approving
of abortion in the case of risk to the mother's health, in cases of rapt- and
incest, and in the instance of fetal deformity. Some 30-40 percent also said
they approved abortion in the case of the unmarried, or when a married
couple did not want another child. Thus, the public responds in different
ways according to the question asked. The flexibility and inconsistency of
attitudes makes the public vulnerable to propaganda campaigns which re-
define the abortion issue. Thus in .Michigan the issue was redefined from a
referendum question asking whether the voter approved of changing the law,
to the issue (defined by the "right to life" groups) of whether the voter was
in favor of murdering fetuses.
Although the legislators and the public are ill-informed about abortion and
thus vulnerable to emotional appeals, we assume both are educable. Also, it
seems likely that while the public and their representatives are loath to
favor abortion under all circumstances, they will be dead set against the
consequences associated with a Constitutional amendment. We doubt that
Americans care about extending due process and equal protection to the
unborn, with all that these legal rights entail.
The public supports contraception as a means to reduce abortion, and for
its own sake. Many anti-abortion groups oppose contraception and steriliza-
tion, as well as abortion. Vocal opponents of legal abortion have never assisted
in the struggle to make contraception or sterilization available to the public,
nor can they count among their membership people who have devoted their
lives to reducing infant and maternal mortality. They have no past record of
public service on which they may stand and claim some right to public re-
spect. They are dedicated zealots whose "spiritual supposition" allows them
to find evil where the rest of us find none at all.
APPENDIX
Some recent data are reported in Table 25b. In the note at the bottom of
the table we report the number of legal abortions per 1000 live births, by
marital status and race. These ratios are similar to those from New Yort
City, reported by Tietze. The rates are lower than in New York because
access to abortion in California was restrictive through 1972. The California
data are superior to those of New York because one need not estimate the
marital status of abortion patients, as in New York. When we break up the
data by marital status and year we have an opportunity not only to have a
descriptive picture of the trend in California's abortion and birth rates, but
to also see whether or not the recent decline in California birth rates is still
that one could confidently attribute declines in birth rates to increases in
abortion rates. If you cannot do this then it is likely that the increase in
legal abortion rates represents, for the most part, a replacement of former
unreported illegal abortions with legal reported abortions.
We have abortion rates per 1000 women aged 15-44, by race and marital
status, related to birth by race and marital status in 1969, 1970, 1971 and
1972. We also show birth rates in 1966— a year when virtually no legal abor-
tions were performed. The legal abortion rate for 1966 is not shown because
it is not available — it may have been about 1 or 2 for the unmarried, and
was certainly less than 1 per 1000 for married women.
The top panel shows rates for unmarried women (i.e.. separated, widowed,
never-married and divorced). We find an illegitimacy rate of 26 per 1000
unmarried in 1969, and a rate of 22 in 1972— a decline of 1 births per 1000.
In contrast, the legal abortion rate moved from 4 to 45 per 1000— an increase
of 41. The increase in the abortion rate of 41 per 1000 is accompanied by a
decline of onlv 4 per 1000 in illegitimacy rates. Other things being equal,
this indicates "that the bulk of the rise in the abortion rate to unmarried
women represents replacement of former illegal with legal abortion. Inspection
of data for the unmarried by race allows a similar conclusion. The 1989-1972
decline in illegitimacy is larger among blacks than whites.
In one adds together the birth and abortion rate the total rate yields an
estimate of change in the pregnancy rate, under the assumption that there
were no illegal abortions in earlier years, and spontaneous fetal loss rates did
not change The latter assumption seems more credible than the former as-
sumption. It is difficult to believe that the pregnancy rate among unmarried
women more than doubled between 1969 and 1972— a conclusion would have
to accept if one believed that no illegal abortions were performed in 1969.
472
Among married women a different pattern emerges. For both whites and
blacks the birth rates have declined, and even with the addition of legal
abortions we have a decline in the total rate of known pregnancies among
married women. At the very least this suggests a great improvement in con-
traceptive effectiveness between the late 1960's and 1972.
Among married women it is unlikely that the rise in legal abortion had a
great impact on marital births. For example, the abortion rate among black
wives increased from less than 1 to 24 per 1000 between 1966 and 1972 — an
increase of 24. In contrast the marital fertility rate among blacks declined
from 145 to 92 — a drop of 53 per 1000. The decline in birth rates was double
the increase in legal abortion rates. If one assumes a sizable level of illegal
abortion among married women in 1966, the possible net increase in induced
abortions is even less than 24 — this again suggests that the bulk of the
decline in marital fertility is coming from contraception — not legal abortion.
Finally, it is interesting to have fertility rates, by color, for 1972 in a state
with 20 million people. (The National Center for Health Statistics has not
published national race-specific fertility rates since 1968, at which time the
birth rates per 1000 whites and blacks aged 15-44 were 81 and 115, respcetively.
This rate includes both legitimate and illegitimate births. Trends in Cali-
fornia are shown in the bottom panel. We see that the fertility rate for all
women 15-44 in 1972 was 68, and for whites only it was 67. The rate for blacks
was 77 births per 1000 aged 15-44. Among whites a fertility rate of about 72
will be a replacement level if it is maintained over a long period of time. Among
blacks slightly higher mortality at early ages requires slightly higher fertilitr
rates to replace the black population — perhaps a rate of 74 will do the job.
The conclusion, then, is that whites are slightly below and blacks only
slightly above replacement fertility levels — this represents a radical change
from the situation as late as 1970. Finally, it is doubtful that this radical
change from the past is primarily caused by legalization of abortion, al-
though we would expect to find larger effects on abortion on births after
1972. Although these abortion rates appear large they should increase in 1973
— especially among the poor and unmarried — because the court's 1973 deci-
sion will reduce restrictions on abortion in California that remained in effect
throughout 1972.
BIRTH AND LEGAL ABORTION RATES PER 1,000 WOMEN 15 TO 44 IN CALIFORNIA
All
women
Whites
Blacks
Birth
Abortion
1
Birth
Abortion
Birth
Abortion
Year
Total
rate
rate Total
rate
rate
Total
rate
rate
Unmarried women
1972
67
22
45 57
17
40
138
65
73
1971
58
23
36 51
18
33
123
69
54
1970
42
27
15 37
22
15
96
80
16
1969
30
26
4 25
21
4
78
75
3
1966
23
18
69
Married women
1972
111
99
12 109
99
10
116
92
24
1971
119
110
9 118
110
8
129
110
19
1970
125
122
3 126
123
3
132
126
6
1969
121
120
<1 121
121
<1
130
129
<1
1966
122
121
145
All marital statuses
1972
93
68
25 89
67
22
128
77
51
1971
94
75
19 91
74
17
121
88
38
1970
93
85
8 92
84
8
114
102
12
1969..
86
84
2 85
83
2
102
100
2
1966
86
86
108
Source: Sklar and Berkov (1973). 1972 Abortion ratios for unmarried and married whites and blacks, respectively =
2,326, 1,105 .and 98 and 253. White total = 322; black total=680.
473
Rapid City, S. Dak., August 28, 1974.
Mr. J. "William Heckman, Chief Counsel,
Senate Subcommittee on Constitutional Amendments,
Russell Senate Office Building,
Washington, D.C.
Dear Mr. Heckman : As Chairman of the Rapid City Right to Life Commit-
tee, I would like to take this opportunity to present written testimony from
our group for vour hearing on Constitutional Amendments.
The Rapid City Chapter of the South Dakota Right to Life consists of 44
regular members. We have 6 members that are unable to attend meetings
because of physical disabilities but who are on call for any assistance they
can provide. There are also 5 non-members who are willing to donate time
and money whenever possible according to circumstances.
"We are all opposed to abortion. It is legalized killing and is not consistent
with our Constitution that proclaims all men are created equal and have a
right to life.
On August 13th through the 18th we had a booth at the county fair. The
number of people who stopped to give us their moral support was very en-
couraging. In the three years of our existence we have never had such a
heartwarming response.
Recently we were able to acquire 8,000 signatures in just a few days to
protest abortion in Rapid City hospitals.
We sincerely hope that some of this pro-life feeling will penetrate the
political minds in Washington.
Please consider human life at all stages to be worthwhile even if they
can't vote.
Sincerely,
Mrs. Larry Roberdeau (Rita),
Chairman, Rapid City Right to Life.
474
OFFICAL ABSTRACT OF VOTES CAST AT THE GENERAL ELECTION HELD NOV. 7, 1972
Measure— Initiated statute (measure)
To allow physicians licensed under
Chap. 43-17 N.O.C.C. to terminate
pregnancy if certain preconditions
are present
No. 1
County
Total votes
nets
casts
13
1,947
52
7, 568
48
3,857
12
743
25
4,849
14
1,852
19
2,252
bb
21, 145
100
36, 927
5b
5,028
lb
3,706
21
2,103
2b
2,298
22
2,035
14
3,578
24
2,342
11
1,327
70
23, 827
18
2,303
25
2,344
13
2,377
16
2,047
32
3,649
11
2,126
63
4,497
23
3,084
41
3,020
42
5,571
lb
3,635
54
9,631
b/
3,679
3b
3,113
8
1,115
42
5,381
17
3,108
2b
6,614
32
3,526
12
1,901
54
8,917
lb
3,773
16
3,062
32
1,883
8
1,236
6
712
13
8,352
2b
2,028
72
10,288
37
2,405
3/
5,248
56
7,400
81
21,411
4/
4,030
72
8,355
Yes
No
Adams.
Barnes
Benson_
Billings
Bottineau
Bowman
Burke
Burleigh
Cass
Cavalier
Dickey
Divide
Dunn _.
Eddy
Emmons
Foster
Golden Valley.
Grand Forks..
Grant
Griggs
Hettinger
Kidder
LaMoure
Logan
McHenry
Mcintosh
McKenzie
McLean
Mercer
Morton
Mountrail
Nelson
Oliver
Pembina
Pierce
Ramsey
Ransom
Renville
Richland
Rolette
Sargent
Sheridan
Sioux
Slope
Stark
Steele
Stutsman
Towner
Traill
Walsh
Ward
Wells
Williams
Total..
560
1,898
687
115
859
474
428
4,768
11,366
853
730
539
300
383
377
491
294
6,838
299
481
396
291
648
227
706
301
684
1,028
558
1,428
779
471
188
1,114
483
1,506
787
339
1,592
624
585
225
263
137
1,087
392
2,864
336
1,026
984
5,336
596
1,883
1,324
5,563
3,091
619
3,961
1,338
1,767
12, 726
20, 787
3,959
2,807
1,501
1,959
1,621
3,152
1,796
1,006
13, 182
1,978
1,826
1,956
1,723
2,916
1,874
3,723
2,735
2,265
4,412
3,014
8,091
2,833
2,568
909
4,184
2,571
4,979
2,677
1,517
7,209
2,829
2,419
1,633
957
561
5,550
1,580
6,318
2,035
4,134
6,285
13, 085
3,380
5,967
1, 758 289, 205
62, 604
204, 852
475
Department of State,
Bismarck, N. Dak.
To County Auditors : In accordance with Section 16-01-07 and 16-11-07
(as amended) of the North Dakota Century Code, I do hereby certify that
the following is the complete text of the Initiated Statute (measure) that
will be submitted to the voters at the general election to be held November 7,
1972. The publication of the complete text of the Initiated Statute (measure)
shall be in columns of six point light face type.
In Witness Whereof, I have hereunto set my hand and affixed the Great
Seal of the State of North Dakota at the capitol in the city of Bismarck,
this Twenty-ninth day of September, 1972.
Ben Meier,
Secretary of State.
[GREAT SEAL]
INITIATED STATUTE (MEASURE) NO. 1
An Act which would allow physicians licensed under Chapter 43-17 — Physi-
cians and Surgeons — North Dakota Century Code, to terminate pregnancy if
certain pre-conditions are present.
Be It Enacted by the People of the State of North Dakota :
Section 1 — Neither the termination by a physician licensed under Chapter
43-17 — Physicians and Surgeons — NDCC, of the pregnancy of a woman not
quick with child nor the prescribing, supplying or administering of any medi-
cine, drug or substance to or the use of any instrument or other means on,
such woman by a physician so licensed, nor the taking of any medicine, drug
or substance or the use or submittal to the use of any instrument or other
means by such a woman when following the directions of a physician so
licensed, with the intent to terminate such pregnancy, shall be deemed un-
lawful acts within the meaning of this act.
Section 2 — A pregnancy of a woman not quick with child and not more than
20 weeks gestation may be lawfully terminated under this act only: (a) with
her prior consent, if under the age of eighteen years, with the prior consent
of her husband or legal guardian, respectively: (b) if the woman has resided
in this state for at least ninety days prior to the date of termination ; and
(c) in a hospital accredited by the Joint Commission on Accreditation of
Hospitals or at a medical facility approved for that purpose by the State
Department of Health which facility meets standards prescribed by regula-
tions to be issued by the State Department of Health for the safe and ade-
quate care and treatment of patients. PROVIDED, that if a physician deter-
mines that termination is immediately necessary to meet the medical emer-
gency the pregnancy may be terminated elsewhere. Any physician who violates
this section of this act or any regulation of the State Department of Health
Issued under authority of this section shall be guilty of a gross misdemeanor.
Section 3— No hospital, physician, nurse, hospital employee nor any other
person shall be under any duty, by law or contract, nor shall such hospital or
person in any circumstances be required, to participate in a termination of
pregnancy if such hospital or person objects to such termination. No such
person shall be discriminated against in employment or professional privileges
because he so objects.
Section 4 — If any provision of this act. or its application to any person or
circumstance, is held invalid, the remainder of the act, or the application of
the provision to other persons or circumstances, is not affected.
Section 5 — This act shall be submitted to the people for their adoption and
ratification, or rejection, at the general election to be held in this state on the
Tuesday next succeeding the first Monday on November 7, 1972.
o
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