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other human being there are certain rights of which she is possessed which she may defend out of charity and in justice to herself. Such rights are the right to life; to health whether physical or mental; to liberty whether spiritual or physical; to physical integrity; to those goods deemed essential to life. If a woman has additional obligations to a husband and existing children she may be strictly obliged in justice to seek an abortion in order to safeguard not only her own life but also the we ng of her family, no matter how repugnant and heart-rending this decision.

STATEMENT ON BEHALF OF CATHOLICS FOR A FREE CHOICE

I, as an individual, and as the representative of the Board of Directors of Catholics for a Free Choice, a national organization dedicated to the principle that women have the right and duty to follow their conscience regarding decisions on abortion and contraception and that the law has a corresponding right 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 the Supreme Court decisions and commend the Justices of that court for their wisdom.

However, I would hasten to add that when abortions are performed, they should be followed by contraceptive counseling so as to prevent, 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 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 Roulette” as I refer to it is absurd; to wit, in my case-I have five lovely daughters 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 and laity have an obligation in charity and justice to at least talk to their own Catholic people on this matter. With very rare 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 unChristian namecalling and labelling everyone who disagree with them “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 Doctors of the Church. Tertullian, who, in the third century spoke to women on the subject of abortion :

"In this matter, (abortion) there is no more fitting teacher, judge, witness, than one of this sex (female). Reply, you mothers, you bearers of children, let the sterile (hierarchy) and masculine be silent, the truth of your nature is sought." De Anima 25.5

Catholics for a Free Choice and myself thank you for the opportunity to speak here before you today.

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ABORTION

TUESDAY, OCTOBER 8, 1974

U.S. SENATE,
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 Bayu. 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. Noonan, Jr., professor of law, University of California, Berkeley; Prof. John Ely, professor of law at Harvard University; Prof. Laurence II. 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 Bays. 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. Noonan. You have before you proposals to amend the Constitution 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. Farmer's Loan and Trust Company. The 14th amendment was the necessary answer, after bloody war, to Dred Scott v. Sanford. A proper balance between the organs of government and the people requires that no determination 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

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 14th 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 people 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 Constitution. The people of all 50 States had statutes regulating abortion in force on January 22, 1973. By virtue of Roe v. 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 Cases 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 be 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 Dred Scott v. Sanford the Supreme Court declared that a descendant of African slaves could never be a citizen of the United States. Yet even that most 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, Chief Judge Pettine of Providence, ruling on a Rhode Island statute enacted after Roe and Doe, which expressly declared that in Rhode Island the person commences to exist at the instant of conception. 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 quote Judge Pettine: "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.” 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 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 14th amendment, the fetus is not human; for the purpose 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 protection under the Constitution and to exclude that species 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 fetus' lack of “meaningful life." If what seven judges view as meaningful life is the test of personhood for the Constitution, if facts are irrelevant in determining who is entitled to constitutional protection, the judiciary has absolute power to contract the protection of the Constitution 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 therefrom, 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 frightening 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 direction, the direction of distinguishing between death and life. No less 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 rights. At issue is the role of government in sponsoring the taking of life through government medical services and health care programs. 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 14th amendments, educating the country. In the bicentennial of our birth,

an amendment 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 by 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 name is John T. Noonan, Jr. I am a professor law at the University of California, Berkeley, where I teach courses in family law, population programs, jurisprudence, and legal ethics in the law school and courses in marriage and the family in the Graduate Department of History. I am the author of one 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 at this Committee's invitation, at this Comiittee's expense, and as the representative of no organization or group.

You have before you proposals to amend the Constitution 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. Farmers' Loan and Trust Company. The 14th amendment was the necessary answer, after bloody war, to Dred Scott v. Sanford.A proper balance between the organs of government and the people requires 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 14th 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 people 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 Constitution. 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 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.

I. WHAT THE SUPREME COURT DECIDED IN Roe v. Wade AND Doe v. Bolton

Confusion has persisted as to what the Court actually decided in Roe and Doe, in part because of the inordinate length of the opinions, in part because of a certain wooliness in their composition, and in part because of inaccurate reporting by the media. I have noticed that even ardent opponents of abortion sometimes misstate and underestimate the sweep of the Court's holdings.

Th Court did not decide that at the end of the second trimester the child in the womb could, in some fashion, be protected-it expressly said that viability, when a species of protection could be given, was “usually placed at seven months” (emphasis supplied).” The Court did not say that the child after 7 months had the rights of a person-it expressly said that “the unborn have never been recognized in the law as persons in the whole sense” (emphasis supplied).: The Court did not hold that after 7 months, the State could prohibit abortion-it expressly held in Roe a prohibition even in the last 2 months of pregnancy was subject to exception in favor of "the life or health of the mother” (emphasis supplied).' The Court went on to say in Doe that "the

See footnotes at end of article.

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