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Mrs. Garton. Right, but I am also here representing my synod as a member of the Social Concerns Committee. And our synod has just given to that committee the equal rights amendment to be studied and researched merely for information. I am in the process of doing that.
After I put in as much time studying it as I have the abortion issue, I will be glad to give you a much more detailed answer.
Senator BAYH. If you would like to have the totally biased and nonobjective judgment of the Senator from Indiana as a product of your study, I would be glad to share my thoughts on that.
Mrs. GARTON. I will take you up on it.
Senator Bay. Well, you have been very kind, all three of youno, all four of you. Dr. Bohlmann, I did not mean to give you the impression that you were a nonperson. Thanks for sharing your thoughts
I would like to note that Dr. Paul Ramsey is present and asked that his statement be put in the record. He is a distinguished theologian from Princeton Theological Seminary.
[The statement of Dr. Paul Ramsey in full follows:]
STATEMENT OF PAUL RAMSEY
My name is Paul Ramsey. I am Professor in the Department of Religion, within the Division of the Humanities, Princeton University. My professional career is that of scholar and teacher in the field of religious ethics and social philosophy, with special emphasis on the Christian ingredient of our heritage of morality.
Credentials pertinent to my appearing before this Committee of the U.S. Senate are as follows: Author of law journal articles on domestic relations law and on certain constitutional questions, I have in recent years turned my attention to the serious moral issues emerging in the area of medical ethics, lectured in medical schools, have published books in this field and written for medical and scientific journals. I am a Fellow and member of the Board of Directors, Institute of Society, Ethics and the Life Sciences (Hastings-on Hudson, N.Y.), member of the advisory council of the Kennedy Center of Reproductive Biology and Bioethics, Georgetown University, and am one of the nonscientific members of the Institute of Medicine of the National Academy of Sciences.
Generally I am not a social activist. Never before have I knowingly testified before a Congressional committee. I came here today because of what I regard as the deep significance of the issue before you, and the seriousness of this hour in the moral history of this nation-indeed, of mankind.
[Impertinent to my testimony-or so I believe-is the fact that I am a Methodist theologian. I mention that only for the purpose of identification-adding that it is a matter of considerable sadness to me that spokesmen for the Board of Christian Social Concern of the church to which I belong seem to me to be attempting to turn the abortion issue –which is a human rights question-into a Church-State issue, Catholics vs. main-line Protestants: in short, into another of those “wars of religion” that have so often in the past besmirched our civilization and contributed to emptying it of its moral content. In supporting permissive abortion, they of course depart from the entirety of the Christian tradition until now-Protestant, Catholic, Eastern Orthodox--and they do so, in my view, without proof from either Scripture of sound reason on which I stand, with Luther, against both Pope and Church Councils or Boards if they say contrary. This is not a Roman Catholic issue, and never was theirs alone. It should occasion some raised senatorial eyebrows to hear church voices testify that choice is the issue, and not what should be chosen ; Moses would not have thought so. “Who decides ?" of itself decides no moral issue.
[I counsel you that, if you want to find out what Methodists believe or who represents them, you ought to test the grass roots opinion in your states before it is too late; and without raising denominational hackles, setting party against party. (Anti-Catholicism is still there beneath the surfaces in our generally Protestant culture; and anti-Catholicism, it has been rigidly said, has always been the anti-Semitism of liberal intellectuals.) Or better still, consider the case of the late Leroy Augustine, of the science faculty of the University of Michigan, East Lansing, who before his tragic death proposed to run for public office candidly stating where and how he believed we as a people should draw the line on this issue of the protection of human life.
[Since Methodism is a grass-roots church, spread over this nation, I know no better way to test what they believe that to test grass-roots opinion without asking who are Methodists.
[In any case, it should be made clear to the Senate that pronouncements of the Methodist General Conference—while they may “represent" the Holy Spirit if one believes in His inspiration and intervention to guide us under adverse circumstances-certainly does not represent the considered opinions of Methodists the nation over. The reason I say this is that General Conference is not a deliberative body. It is not a continuing body, meeting over time, like the U.S. Senatewhich can claim therefore to be a deliberative body if not the greatest in the world. General Conference meets only every four years, for ten days or two weeks, with many different people belonging to it each time. It has so much business to conduct that enormously significant issues are “spoken" to after very short debate. Before these meetings "positions” are prepared by Boards that are small by comparison and largely self-perpetuating. Their views, when passed with slight amendment in an hour or so, may then be represented to the Congress as the views of Methodists in the U.S. While elected or reappointed and not protested by civil service in their tenure, these Boards are rather to be compared with Federal bureaucracies than with Congressmen representing the people of their states or districts. Everyone of you knows the problem of getting Federal bureaucracies to reflect the policies either of the Congress or of the Executive and to properly carry them out, or even to be concerned about these sources of their legitimacy. Bureaucracies and church Boards have a life of their own. The Methodist Board of Christian Social Concern would probably agree with that estimate of the Pentagon, but not of themselves. Nonetheless it is true.
[So I say that the best way to test what church people actually believe and act on is to go to the people of your States or districts, and if you are interested in finding out what members of a particular denomination (e.g. Methodist) stand for, factor the result by the proportionate number of them in the jurisdictions you represent. That should be a better test than church pronouncements vocally represented to you here.
[Better still, on the issue before us, stand for election candidly on-among other things—your view of abortion. Then you will find registered the opinions both of church people, and other people as well, better than by spokesmen who represent church pronouncements to be the views of their constituency.
[That is all I shall say about the curious effort to silence the opposition by turning the abortion issue into a matter of special religious pleading, or an effort to impose private revelations on others. The issue before this body is the justice or injustice of altogether withdrawing the legal protections surrounding unborn life; and it is an unavoidable question. Or rather, the question before this body is whether it is right to deprive the people of participation in determining the protections with which they believe life should be surrounded. Religion as such should be out of court here, and certainly the furor of sectarian wars. In any case, I am not here in my capacity as a Methodist theologian.]
I am here as a private individual who on January 22, 1973, was robbed of his right as a citizen to participate in the public processes by which we as a people determine the outer limits of the human community-the limit at the first of life and soon it may also be the limit at the end of life---within which boundaries an equal justice and equal protectability should prevail for all who bear the agreed "signs of life.”
These are judgments about the best factual evidence. Physicians are our deputies in applying the criteria for stating that a man has died; but they alone do not set the criteria. In the unlikely event that physicians began to allow people to die all the way through to the end of cellular life (until hair and nails stopped growing) we would find ways of telling them that that is not what we mean by the difference between a still living human being and a corpse. I hope we would do the same in the (more likely) event that physicians began to declare people dead not on the basis of brain-stem death (the current "up-dating”), but when there is only cessation or destruction of the higher cortical functions of the brain (thus certifying as corpuses for burial or for organ donation bodies whose hearts still are beating spontaneously and naturally without any external support-systems).
So we have legislation or case-law based on it, wise or unwise, traditional or novel, defining death. This legitimizes or deputizes physician declarations
of death. Professor Alexander M. Capron of the University of Pennsylvania Law School has recently summarized the need for and the propriety of a societal function in regard to new proposals for updating the criteria for death which physicians apply ("To Decide What Death Means," The New York Times, News of the Week, Sunday, Feb. 24, 1974, p. 5).
Now suppose the Supreme Court were to rule that determining the outer limit of the human community short of which there exists a right to life still resident in the dying is a matter falling strictly within the privacy of the doctor-patient relation, or is even to be decided by physician and family members. On this supposition the State legislatures could limit what physicians do in making life and death decisions only by licensure. Would that Court decision not be deemed an exercise of “raw judicial power"? Would there not be need for a constitutional amendment to restore the setting of criteria to our public and legislative processes. The deputyship of physicians or of any single individual or group of individuals does not extend to fixing the criteria for determining who shall or shall not be deemed a subject of rights. That surely is the people's business. While saying it did not settle that issue, the Supreme Court did just that-all the while proclaiming that when individual human life begins is a murky theological question. For all practical purposes the Court pronounced that no one enters the human community nor has any rights due him until viability. Questionable as that may be, it at least has the virtue of being based on an implicit claim to possess the best factual evidence in the light of modern knowledge. But behind that is, for me, the monstrous claim that the Court decides such matters.
To restore the political and legislative decision-making processes the power to draw an agreed limit as to the first entrance of a human being into the human community is, of course, to load us the people again with a fearsome responsibility. I see no escaping that, since I know of no revelation of such factual judgments. The only thing more fearful would, however, be for such verdicts to be placed in the hands of private individuals, or to be determined by a 7-2 decision of the Court.
Such have always been among the human, all too human decisions silently taken by mankind in the course of our tortuous history. Christian teachings about abortion, for example, have varied over the centuries. But these have varied according to changing judgments about the evidence for believing there is a new life on the human scene. Fancies about 40 and 80 days of gestational life, reliance on quickening, etc. have been grounds in times past for drawing the line between unprotectable and protectable human life. Only in the nineteenth century after the discovery of the ovum did there come to be a credible rational basis for either Catholics or the A.M.A. (see q. in Wade) to believe that life begins with conception.
What has generally been invariant in Western civilization has been the rights and dignity and protection to be accorded to the individual life deemed to be human. Our religious faiths, our philosophies of life, our humanistic visions have to do with justifying and upholding the worth we recognize in or impute to human life. “Subsuming cases" under the value of life to say, This is a human life that has now put in his claim upon the human community to be accorded equal justice and protection—that is a different sort of judgment, and one to be made with fear and trembling. Yet we collectively must decide such matters, and shall continue to do so as long as we have the courage to accept the necessity for together setting the criteria for finding a life to be human life at either end of the scale. It is only the pretense that we can remain civilized after such decisions are left up to the vagaries of private judgment that has to be denied.
I candidly state to you that I am not very hopeful over what people generally through their representatives will decide about these life and death issues—in a technologically medical era when “quality of life” is judged to override being alive, and “Choose" has replaced “Choose life" as our moral maxim.
Some comfort may be taken from the fact that over ten years ago the demographer Judith Blake (Science) took a look at the anti-permissive abortion sentiment in this country and advised that the only way to accomplish an arbitrary liberty to choose between one life and another in its early stages was to go to the Supreme Court to see whether it would take from the legislatures their power to determine and represent the social compact. I take it, however, that any so-called "pro-lifer" had rather be out-voted than overruled and deprived of voice concerning the limits and the life-and-death terms of our social compact. This, not winning, is what is at stake in the profound alienation of millions and millions
and millions of people brought about by the Court's decision in January 1973. I am very sorry that (as reported in the press) Justice Blackmun has received a good deal of “hate mail” since the decision he wrote for the Court. But I pray that he can fathom even in that the moral outrage over being deprived as a people of one of the most important aspects of our together being a people over the course of time. Everyone knows along the pulses that for whom the bell tolls in these arbitrary life-and-death decisions, now surfaced to consciousness and made "safe" by modern medicine, it could have tolled for him long ago and may yet toll for him at the end of life's span.
With power restored to the people to determine agreed criteria for including anyone in or excluding anyone from the human community, we still may go on our way toward some technological version of the definitional solution practiced by the Nuer tribe in Africa who treat infants born with grave deformities or suffering from genetic anomalies as baby hippopotamuses, accidentally born to humans and, with this labeling, the appropriate action is clear: they gently lay them in the river where they belong. (Mary Douglas, Purity and Danger: An Analysis of Concepts of Pollution and Taboo. London: Rutledge and Kegan Paul, 1966, p. 39; E. E. Evans-Pritchard, Nuer Religion. Oxford University Press, 1956, p. 84.) A shudder along the spine of every American is surely a fitting reaction to the Court's account of why Western medicine has always been concerned to protect unborn lives.
This is to be accounted for, we are told, because Christianity happened to take up the views of the Pythagoreans, a small sect in the Graeco-Roman world, with its Hippocratic oath pledging physicians never to give abortificants. In now overcoming that limitation, we are asked to recall that pagan outlooks in general and medicine in particular in pre-Christian ages opposed neither abortion nor suicide. Passed over in silence is the fact that approval of abortion was associated with approval of infanticide. In this there is retrospective prophecy well on the way toward fulfillment today! A doctor at Yale-New Haven Hospital, explaining on national television the newly announced policy of benign neglect of defective infants in that medical center, says that to have a life worth living a baby must be "lovable." Millard S. Everett in his book Ideals of Life writes that “no child should be admitted into the society of the living" who suffers “any physical or mental defect that would prevent marriage or would make others tolerate his company only from a sense of mercy ..." Who is there among us who need not reply to that, “Mercy, me!”? Michael Tooley, Professor of philosophy at Stanford University, concludes that while it would be reprehensible to torture kittens, infants or other sentient creatures for an hour, it would not be wrong and no denial of rights to kill babies in the hospital nursery during the first two weeks after medically checking their acceptability, since human babies are no more than kittens and cannot be bearers of rights until they have selfconsciousness of themselves as persons (“Abortion and Infanticide,” Philosophy and Public Affairs, Vol. 2, No. 1, Fall 1972). A physician at the University of Virginia writes that he believes a woman's decision to allow a defective baby to die is "her second chance to have an abortion." A fellow theologian, I regret to say, always replies when I use the term "infanticide": I prefer to call it "neonaticide”! I myself am surprised by none of these views, nor for that matter do I consider them illogical extensions of what we are doing in the matter of abortion, nor are they without some backing. The legal and moral chaos they bespeak stems rather from letting decisions about the criteria for acceptable life and rightful death decisions fall under the arbitration of private individuals.
To say the least, the Court started these retrogressions into technological medical barbarism from which we shall not soon recover, when it exercised no judicial restraint, when it refused to trust the people's moral sensibility and legislative deliberation to achieve rough agreement about who belongs with us in the community of equal rights bearers. That decision must somehow be reversed and life-and-death standard-setting must again be de-privatized. In doing this, the Court itself rolled back by one stroke of the pen steadily increasing respect for the unborn child in the law itself-propelled onward and upward for decades by our increased knowledge of the humanity of unborn life in the moder period. That knowledge had all but opened a "new age of human childhood." Yet the Court declared that “the unborn have never been recognized in the law as persons in the whole sense" (italics added). That, I believe, is demonstrably erroneous. Perhaps the Court meant to say that the whole law has never recognized the unborn as legal persons. That I think is true, e.g. "perfection" of standing and of the right to sue for pre-natal injury only comes with birth. But "entitlement" to property conveyed to someone in utero is as to right perfect at
that time; further "perfection” here can only mean collecting the cash to which right was fully established at the time of conveyal.
Then there is the N.J. case Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 201 A2d 537, 42 N.J. 421 (1964), perhaps the crest of legal acknowledgement of the unborn as full legal persons in one part of our law. Here in the case of a Jehovah Witness mother who refused a blood transfusion and who was pregnant, the court confronted the alternative of whether to bring this case under (1) the line of cases of adult Witnesses which generally respects their First Amendment right of religious liberty and does not compell transfusion even to save physical life, or under (2) the line of cases dealing with infants or minors of Jehovah Witnesses whose parents refuse to authorize blood transfusions: here generally the courts have taken jurisdiction of the children and authorized the recommended or necessary medical treatment even against the religious conscience of the parents.
Which sort of case was Fitlin? Both child and mother would die unless the State intervened. Chief Justice Weintraub wrote for a unanimous court: “We are satisfied that the unborn child is entitled to the law's protection and that an appropriate order should be made to insure blood transfusions to the mother. We have no difficulty in so deciding with respect to the infant child. It is unnecessary to decide the question (of compelling the adult against her conscience) because the welfare of the child and the mother are so intertwined and inseparable that it would be impractical to distinguish between them ." Notably in this case the humanity and rights of the unborn child prevailed over the First Amendment rights of the mother, which is a near-absolute in American law, when these were inseparably intertwined. There can scarcely be stronger evidence than that of recognition in our law of the unborn as a person in the whole sense, granting that this does not hold for the whole of our law.
In this instance the issues in the case were decided after Mrs. Anderson had left the hospital. Following Wade, we can imagine another escape: she could request an elective abortion, thereby prevent our law from successfully treating her child as a legally protectable person, and from her point of view deliver both him and herself intact of soul (“the blood is the life”) until the day of the general resurrection! Such is by comparison the measure of the far more trivial reasons conscious persons may now use to disregard the rightful claims of the unborn, if indeed these exist any longer at all following Wade. The privatization of abortion decisions means that no one need reach for a First Amendment right to consider overriding the right of the unborn to his or her life. No parity or balancing judgment need now be made, not even one favoring the mother's conscience. Instead, States are now expressly forbidden to bring the rights of the unborn as such into consideration. The minimum of regulations that are allowed indirectly expressive of some interest in “the potentiality of life" must every one be reasonably related directly only to the life and health of the mother. She is the one life to be treated as a person in the whole sense; or, I should say, even partially so in the face of the law.
The fetus is not fully protectable (not fully a legal person), even after viability! Even after viability, the unborn child's right to life is not treated as needing to be in parity with the mother's life before being killed. Her health also may outweigh the child's life. The Court said hypothetically : “If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother” (italics added). I suppose most procedures directed toward trying to save a viable baby may have some adverse effect on the "health" of the mother, especially as that term is now too broadly interpreted by the medical profession. In an article generally favorable to permissive abortion and the Court's decision, Si la Bok, lec rer in M ical Ethics at Radcliffe College (the President of Harvard is her consort) pleads: "Every effort must be made by physicians and others to construe the Supreme Court's statement (the foregoing statement) to concern in effect, only the life or threat to life of the mother" ("Ethical Problems of Abortion", Hastings Center Studies, Vol. 2, No. 1, January 1974, p. 44, n. 18, italics added). In a civilized Society, why would Sissela Bok have so to plead? Why shoud the decision to what extent a viable baby should he valued be privatized? Why should physicians be endowed with such arbitrary power over young life that they need to be enjoined not to use it? In this, as well as in its reference to the unborn's capacity