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tioned in the Constitution or its The evidence offered by the deamendments, but is only found in fendants in this case shows clearly, the “penumbra” of those articles. conclusively, and in detail that neiRights, the provision of which is ther the human ovum or spermatoonly implied or deduced, must in- zoon are alive, or capable of indeevitably fall in conflict with the ex- pendent life, in the accepted meanpress provisions of the Fifth and ing of that word. One dictionary Fourteenth Amendments that no per- definition of the word "life" is son shall be deprived of life without due process of law. The differ
that quality or character ence between this case and Griswold [that] distinguishes an animal or is clearly apparent, for here there a plant from inorganic or dead is an embryo or fetus incapable of organic bodies and which is espeprotecting itself. There, the only cially manifested by metabolism, lives were those of two competent growth, reproduction and internal adults.
powers of adaptation to the enWithout going into all of the vironment. Webster's New Intermyriad of cases and texts that deal national Dictionary of the Engwith various aspects of this prob- lish Language (2nd ed. 1934). lem, the question resolves itself into whether or not the state has a Biologically, when the spermatozoon legitimate interest to legislate for penetrates and fertilizes the ovum, the purpose of affording an embry- the result is the creation of a new onic or fetal organism an opportu- organism which conforms to the nity to survive. We think it has and definition of life just given. Alon balance it is superior to the though this is a definite beginning, claimed right of a pregnant woman there is no assurance in any particuor anyone else to destroy the fetus lar case as to how long the life thus except when necessary to preserve begun will continue. It may endure her own life.
only a few hours or days, or it may One of the great puzzles of the continue in excess of a century, so law is why its practitioners blithely far as human life is concerned. In argue their cases and make their de other life forms it may continue for cision in total disregard, if not ig- many measurable centuries, or even norance, of the laws of nature. for an immeasurable and endless Automobile collision cases, for ex- period. Thus when a new life comes ample, are often decided on the basis into being with the union of human of facts which are completely impos- egg and sperm cells, it may termisible under the physical laws of mo- nate, or be terminated, at any motion and mechanics. So in this area, ment after it commences, and before, those decisions which strike down at, or after the particular developstate abortion statutes by equating mental process called “birth” takes contraception and abortion pay no place. Such terms as “quick” or attention to the facts of biology. “viable," which are frequently encountered in legal discussion, are self-defense has always been recogscientifically imprecise and without nized as a justification for homicide. recognized medical meaning, and Hence the provision in the statute hence irrelevant to the problem here here in question that abortion is presented. As scientific knowledge noncriminal when it is necessary, of prenatal physiological processes or declared by two physicians to be increases, medical intervention will
necessary, to preserve the life of the have a greater chance of avoiding mother. One human life may legally premature termination of lives of be terminated when doing so is children, both before and after birth. necessary to preserve or protect an
Thus contraception, which is dealt other or others. with in Griswold, is concerned with There is authority for the propopreventing the creation of a new sition that human life commences at and independent life. The right and the moment of conception. power of a man or a woman to determine whether or not to partici- Biologically speaking, the life pate in this process of creation is of a human being begins at the clearly a private and personal one moment of conception in the with which the law cannot and mother's womb. 42 Am. Jr. 2d, should not interfere.
Infants $2 at p. 9 (1968). It seems clear, however, that the From the viewpoint of the civil legal conclusions in Griswold as to law and the law of property, a the rights of individuals to deter- child en ventre sa mere is not mine without governmental inter- only regarded as a human being, ference whether or not to enter into but as such from the moment of the processes of procreation cannot conception ... which it is in fact. be extended to cover those situations Bonbrest v. Kotz, 65 F. Supp. wherein, voluntarily or involuntari- 138, 140 (D.D.C. 1946). ly, the preliminaries have ended, ... medical authority has rec
new life has begun. Once ognized long since that the child human life has commenced, the is in existence from the moment constitutional protections found in of conception ... W. Prosser, The the Fifth and Fourteenth Amend- Law of Torts, $56 at 355 (3rd ed. ments impose upon the state the 1964). duty of safeguarding it.
Obviously, of course, there are In this connection it should be limits to the protection which the noted that Ohio never did follow state can and must extend to human Mr. Justice Holmes's opinion in life, but these are clear and well- Dietrich v. Northampton. 138 Mass. marked in the law, and have been 14, 52 Am. Rep. 242 (1884), which for centuries, essentially on the for more than half a century fouled basis that "self-preservation is the up the tort law with respect to prefirst law of nature.” Thus through- natal injuries, but is now pretty well out the development of our law, abandoned by all courts except those
which, once having made a mistake, themselves its legal death can cannot admit it, but expect the legis- easily be procured. lature to rescue the public from the It is our conclusion that Section consequences of their error. The 2901.16 Ohio Rev. Code is a valid courts of Ohio have never hesitated and proper exercise of the power to protect a child merely because it of the state. was unborn at the time of injury. The plaintiffs' contention that the
If the law is in accord with abortion statute is in violation of science for the purpose of protect the equal protection clause of the ing property rights, how can it pos- Fourteenth Amendment requires sibly not be in accord with science little consideration. This statute, for the purpose of protecting life $2901.16 Ohio Rev. Code is clearly itself, without which no property nondiscriminatory upon its face. right has any worth or value what- There is nothing in the evidence besoever ?
fore the Court to show any official It should perhaps be mentioned discrimination to the application of that the implication, or sometimes the statute, or in commencing prosethe express statement, found in cutions under it. arguments of persons in the posi- Assuming, arguendo, that the contion of the plaintiffs in this case, tentions of the plaintiffs that which equates the necessity of giv- wealthy persons can shop for more ing birth to a child with the neces- complaisant physicians, or can travel sity of rearing the child, has no to remote places where abortion is foundation in law or fact. The law legal, while poor people cannot, have may take permanently from its nat- a sound basis in fact, the situation ural parents a child who is neglected is not inherent in the language of by them, and the frequent pusil- the statute. Neither is it caused, lanimity of courts and social agen- not could it be cured, by either accies in this regard does not change tion or inaction on the part of the the legal situation. The statutes of government, either state or national. practically all states provide for the The equal protection clause is not voluntary surrender of children. designed to prevent that inequality When the statutes are complied which is often found in life and in with, the child is legally and prac- nature, nor could any law be framed tically as dead to its natural parents to do so. So far as this case is conas if it had been aborted, stillborn, cerned, on the evidence adduced, the or had died in infancy. The valid- social and economic conditions ality and effectiveness of surrender leged by plaintiffs as a basis for statutes have been upheld in every their equal protection argument do case in which they have been ques- not affect any of the actual parties, tioned. There is no need for par- and hence the classes they represent. ents to terminate an undesired preg- In seeking a temporary restraining nancy by killing the unborn child order the plaintiffs appeared to conphysically, when with less risk to tend that only the force of the law stood in the way of plaintiff Mary neither statute nor constitution that Doe undergoing the abortion she determines the price, or how it shall desired, and the other plaintiffs de- be paid. The result is not punishsired her, to have. It was not ment, but merely the quid pro quo. claimed that her economic or social The controversial problems of the situation would prevent her from plaintiffs should be addressed to the getting an abortion.
state's legislature and not the courts We do not find that 82901.16 Ohio for solution. The courts ought not Rev. Code is in any way violative of to be expected to provide a remedy the equal protection clause of the for all of the ailments afflicting soFourteenth Amendment.
ciety. The contention that the Ohio abor- For the foregoing reasons, the tion statute contravenes the Eighth plaintiffs are not entitled to a declaAmendment proscription of cruel ratory judgment invalidating Ohio's and unusual punishment is unworthy abortion statute, Section 2901.16 of serious consideration. It may Ohio Rev. Code. seem cruel to a hedonist society that This opinion is adopted as findings “those who dance must pay the of fact and conclusions of law. piper,” but it is hardly unusual, and Judgment will be entered in favor the language of the amendment is in of the defendants dismissing the the conjunctive, not the disjunctive. amended complaint. In the complexities of human life it is not always possible to foretell with exactitude the entire conse
FOOTNOTE quences of even the simplest or (1) Ohio's abortion statute provides: most innocent action. But if it is No person shall prescribe or administer
a medicine, drug, or substance, or use an known generally that an act has pos- instrument or other means with intent to
procure the miscarriage of a woman, unsible consequences that the actor
less such miscarriage is necessary to pre
serve her life, or is advised by two physidoes not desire to incur, he has al-.
cians to be necessary for that purpose.
Whoever violates this section, the ways the choice between refraining
woman either miscarries or dies in confrom the act, or taking his chance sequence thereof, shall be imprisoned not
less than one nor more than seven years. of incurring the undesirable con
This statute or one very similar to it has sequences. There are no other al- been in effect since at least 1834. Section 1 of
the Act of February 7, 1834, S & C Stat. 440. ternatives. This is peculiarly true Wilson v. State, 2 Ohio St. 319 (1853). There with respect to the bearing of chil
have been many prosecutions under it but
until the present case, so far as we have been dren. If one gambles and loses, it is
able to ascertain, no one has ever challenged its constitutionality.
Steinberg, et al., v. Rhodes and Schroeder, No. C 70-289, U.S. Dist. Ct.,
No. Dist. Ohio, West. Div., Dec. 18, 1970
[From the Uncertified Human, vol. 2, No. 2, July 1974)
MICHAEL LITCHFIELD DISCOVERS A few years ago, the Lane Committee was appointed by the British government 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.
“I, with another journalist, took three months to prove beyond doubt that everything in the abortion backyard is overrun with corruption. We two journalists, trained to investigate, began with utterly open minds . . no preconceived notions . not prejudices. And, our tape-recordings are imperishable testimonies to the organized corruption and prostitution of the medical profession, 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 seriousness 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