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In the fifth month, 16 to 20 weeks, the unborn child will become one foot tall, and weigh approximately one pound. Hair begins to grow on his head and eyebrows, and a fringe of eyelashes appear. The child sleeps and wakes just as he will after birth and he may even be aroused from sleep by external vibrations. The skeleton hardens and the muscles become stronger. Finally, his mother perceives his many activities.
Now, Mr. Chairman and Senator Cook, I would like to call your attention to a photograph which appeared in this morning's Washington Post. It is a photograph of a mother and father bringing home a three month old Sherri Lynn Scorse, born four months premature. In other words, in the second, early in the second trimester, and the picture shows her leaving the hospital with parents. She had been left in a crib to die after premature birth. This is in the second trimester, when she was born. This beautiful picture is in this morning's Post.
Now, quoting Dr. Gesell on this point again :
Our own repeated observation of fetal infants—an individual born and living at any time prior to 40 weeks gestation-left us with no doubt that psychologically they were individuals. Just as no two looked alike, no two behaved alike. One was passive, when another was alert. Even among the youngest, there were discernable differences in vividness, reactivity and responsiveness. These were genuinely individual differences, already prophetic of the diversity which distinguishes the human family.
The reason that I went into this detail, Mr. Chairman, and I beg your forgiveness for doing so, is because it is important to know what unmistakably human characteristics that a child has even at early stages of pregnancy.
Now, I am not asserting that it is the function of law to proclaim medical truths. That should be done by the medical profession, acting responsibly and in consideration of its tradition.
The law, however, acts improperly when it pretends to assert medical fact or ignores medical fact. This the Supreme Court did on January 22, 1973. It pretended to assert as fact a lack of sufficient knowledge of the unborn condition as a basis for its later pronouncements, one of which was a new definition of a meaningful life.
Mr. Chairman, and Senator, who is competent to say that one life is meaningful and another is not? The law is supposed to portion out justice, to mediate differences, to protect those unable to protect themselves, to defend the interests of the weak, and to limit the force of the strong. The law is not supposed to decide that ones life is not meaningful.
The one thing that all human beings have in common is the existence of our life, along with the consensus that we are human. Philosophies may
differ as to what attributes of this universal human life the law is bound to protect, but when there is serious disagreement whether or not life itself should be protected, the existence of all humanity is in peril.
Until a few years ago in America we gave the benefit of every doubt to the existence and continuation of human life. For example comment on a 1941 case before the New York Supreme Court summarized the legal tradition in these words:
It has been the uniform and unvarying decision of all common law courts in respect of estate matters for at least the past 200 years that a child en ventre sa mere is "born" and "alive" for all purposes for his benefit.
Now, the unborn child clearly could inherit by will or by intestacy-if a descendant left a will stating his estate should be divided among his children at the time of his death, unborn children have inherited on equal basis with born children. Under the January, 22 decision of the Supreme Court, a woman can now enrich her own inheritance under such a will by aborting an unborn heir which I think is an astounding extrapolation of the decision. The unborn child can also obviously be the beneficiary of trust.
Historically, too, common law has acknowledged the rights of unborn children by granting stay of execution to pregnant women so that the child could live.
Now, if the law has always afforded these legal rights to the unborn child, how can the law now deny the most basic of all human rights, the right to life itself?
The Governor of California, Ronald Reagan, recently stated that the California Criminal Code holds a man who kills an unborn child by striking a pregnant woman accountable for murder. But, if the woman herself kills the same child, it is now legal.
It is true that the 19th century saw the large-scale adoption of antiabortion statutes at the State level. The proabortionists assert that the motive of such laws was the protection of the health of the woman involved. If that were so, antiabortion laws would have been as old as the hills, because there was nothing that suddenly made abortion more dangerous in 19th century America than it had been in 17th or 18th century America.
An expert study of medical and legal journals of the period compels another conclusion. An 1887 article in the Journal of the American Medical Association criticized the increase of abortion, especially among the higher classes, in those words:
This fallacious idea that there is no life until quickening takes place has been the foundation of, and formed the basis of, and has been the excuse to ease or appease the guilty conscience which has led to the destruction of thousands of human lives.
In the 19th century more women were having abortions, and society didn't approve, so laws were passed to prohibit them. Clearly, too, there was a growing medical objection to arbitrary distinctions among the different stages of pregnancy, as scientific advances demonstrated the absolute humanity of the fetus.
Has there been some new medical discovery in recent years proving that the fetus is not human to justify abortion? No, gentlemen, the contrary is true.
Another area of law which is clearly prejudiced in favor of the unborn child is the law of torts. When advances in science were able to pin point damages to clarify stages of development to assign responsibility for harm, the law began supporting actions in tort for injuries done to unborn children.
It is worthy of note that, up until the 1970's, the response to the growing medical knowledge regarding unborn babies was a greater reverence for life, a stronger desire to protect it, a resolution by the legal profession to guard the beginning life, increasingly recognized as delicate and vulnerable and real.
Now, there are recent examples in history of court decisions where the rights of the unborn child have been upheld. There have been
several cases where women of the Jehovah Witnesses faith, who refused to have blood transfusions to save the life of their unborn child, were forced by the courts to do so. The courts placed the life of the child above the mother's religious beliefs.
The law has also allowed guardians to be assigned to represent unborn humans and to have suits brought against their fathers for financial support.
Now, Mr. Chairman, and Senator Cook, allow me to speak, if you will, as a politician.
Senator Cook. Larry, before you get to that point, I am sure in the work you have done you have a number of citations. Are they in this completed report or do you have them?
Mr. Hogan. Yes, they are, Senator.
Mr. Hogan. The only one which might not be in there is the citation in the New York Supreme Court case, which I have in here. But, I assume it is in the one that you have as well.
Senator Cook. All right.
Mr. Hogan. Now, I suggested that I talk now, Mr. Chairman, and Senator Cook, as a politician. Until a few years ago, I really did not think much about abortion. It did not mean very much to me. I somehow equated it with birth control.
My brother, Dr. William Hogan, who as I said is with me today, and is an obstretrician, had been trying to discuss abortion with me, but I kept putting him off, saying that it was not a popular political issue.
Finally, one day he came to my house and showed me some color pictures of what unborn babies look like. I saw what some people call a chemical reaction, sucking its thumb. I saw perfectly formed human babies just a few weeks from conception. I saw the pictures of a 21-week old fetus, a little girl, who survived out of the womb. I saw other little babies who did not survive. Some were scalded red from saline solution which flushed them from the womb. I saw others torn apart by a suction machine. But, in the material taken from the machine, I could see a little foot and a little hand. I was stunned. I was shocked. And I was bitterly ashamed.
I do not know what I really thought abortion was. I just did not think very much about it. But, certainly I did not think we were killing babies. How could I have been so stupid?
If we are not killing babies in abortion, what are we doing?
Now, Mr. Chairman and members of the committee, I have these pictures that I saw with me, and I would like my brother to bring them out to you so that you can see them, too. I have also given for each member of the committee a reprint of a Life Magazine article on life. But, I urge you to look at these photographs.
Now, in looking at these photographs, Mr. Chairman, and Senator, you do not have to be a medical expert or a medical scientist to conclude overwhelmingly, as I did, that what we euphemistically refer to as a fetus is really a human baby. What we euphemistically refer to as termination of pregnancy is really the killing of that unborn baby. Now, if these pictures do not show you human babies, what, I ask, do they show?
So, after seeing these pictures, I was instantly changed from one who considered abortion not a popular political issue to one who feels it is the most important issue facing our society. It may not be a popular political issue, but it is literally a matter of life and death.
In 1857, the U.S. Supreme Court handed down a decision saying that it is lawful for one human being to own another human being as a chattel. That was the Dred Scott decision. That was a horrifying decision, but it took 11 years to overturn it. On January 22, 1973, the U.S. Supreme Court handed down a decision saying that it is lawful for one human being to destroy another human being for convenience. Since then millions of human beings have been legally slain. We must, as soon as we possibly can, approve a constitutional amendment to overturn that decision. In its January 22 decision the Supreme Court declared that it “need not resolve the difficult question of when life begins.” That was the most important of all questions to resolve.
The answer to the question of when life begins is not difficult at all, because the answer has been established beyond any possibility of doubt by modern science. The Supreme Court is simply in error in its belief that experts have been unable to arrive at any consensus about this. The fact is that both proabortionists and antiabortionists agree on the answer to the question of when human life begins. Their disagreements arise, not on the scientific factual question, but on the question of what moral value embryonic life, once begun, possesses, and what legal rights should be accorded it, and what should be regarded as appropriate ethical responses.
Now, I would like to give to the committee in this context 13 references from medical textbooks on both sides of the abortion question about when life begins, because I know from the questioning by the Senators that this has been one, and justly, one of the pivotal questions you have been concerned with.
Now, here is a quote from the California Medicine for September 1970. It says, and I am quoting, “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 extrauterine 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 psychiatric sort of a subterfuge is necessary because while a new ethic is being accepted, the old one has not yet been rejected. And now, this was written by a proabortionist. Now, I would like to have my brother give you these other definitions, without going into detail from these textbook definitions of when life begins by people on both sides of this issue.
In 1967, the First International Conference on Abortion reached, 19 to 1, the same conclusion about the life of the unborn. “The ma ity of our group could find no point in time between the union of sperm and egg, or at least the blastocyst stage, and the birth of the infant at which point we could say that this was not a human life.”
Senator BAYH. Congressman Hogan, if you will excuse me, we have a vote going on here for about 5 minutes.
Senator Cook. We felt like it would be much better for both of us to go and vote and come right back.
By the way, Congressman, there are no citations in there.
Mr. Hogan. By all means. But, I assume the copy with the committee staff who has copies of the articles themselves would include the citations.
Senator Cook. All right. I was just wondering whether your staff might have, particularly those tort citations and that sort of business because
Mr. Hogan. Well, Senator, if you do not have them I will certainly see that you do get them.
Senator Cook. All right. Why don't we just run over and vote and we will be right back. Senator BAYH. We will recess and then be back.
A short recess.]
Once the humanity of the unborn child is recognized, it follows that it is only good medicine to protect and foster the life of the child, just as one protects and fosters the life of the mother. As Dr. H. M. I. Liley, who with her husband, Dr. Albert Liley, who I understand is going to subsequently be a witness before this committee, helped pioneer the medical treatment of babies in utero, that is, before birth, has well said: "*** modern obstetrics discards *** the idea that the pregnant women can be treated as a patient alone. No problem in fetal health or disease can any longer be considered in isolation. At the very least, two people are involved, the mother and her child.”
Now, there are those who assert that abortion is simply a medical procedure, isolated from the rest of reality, and the ethics governing it are no different from say, an appendectomy. Today it is especially necessary to realize that abortion as such is not really a medical problem. As Senator Cook alluded to with his comment about hospitalization, doctors who are doing abortions are not doing them for strictly medical reasons, but for social, economic, population limitations and other reasons, and to satisfy demand. The progress of modern medicine has, in fact, rendered what used to be called therapeutic abortions superfluous.
Essentially, what I am saying is that abortion is a medical procedure for which the patient, not the doctor, indicates a need, and in this case a demand. This is a profound shift in the ethical disposition of the medical profession, and in my view, not a desirable shift.
Now, let me cite an example of this medical technique. There is a case in the California courts now of a 412-pound baby born through a saline solution when the doctor was not present. The nurses put the baby into care equipment, and the doctor ordered the care to be ceased. The mother reportedly indicated disagreement with the doctor, but in any event, the nurses refused to kill the child as ceasing the supply of oxygen would have done.
Now, as I recall from reading the papers, the nurse asked the doctor what do you want to do, kill the baby, and to that the doctor replied, wasn't that the original idea.