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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.

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, D.C.

DEAR MR. CHAIRMAN : As you know, Senator Marlow Cook requested citations 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 Congre88.

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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

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It's interesting that the members of the AMA in 1859 had no trouble identifying the fetus in a woman's womb as a human being, yet today with a century'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 liberalization 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, moralistic, theological view of abortion as sinful and symptomatic of a decaying society. On the other hand is the emotional argument that abortion is necessary to achieve the social good, that the world is overpopulated and abortion is à 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 interests that we have failed to interrelate the disciplines where such an interrelationship 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 combine 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 liberalized abortion laws in New York, Alaska, Hawaii, and Washington without violating the canons of the medical profession.

See footnotes at end of article.

For purposes of this article, I have attempted to isolate the abortion question 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 University said that, “The basic fact is simple : Life begins, not at birth, but at conception." : 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."

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 thoroughly 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 convenience 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. 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." •

If a heartbeat with circulating blood can be detected at three weeks gestation, 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 tortfather” of first-year law students--Professor Prosser stated as early as 1964 that, “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." ?

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.s

Suffice it simply to reiterate Professor Maledon's statement of the inconsistencies which develop in those States with liberal or "abortion-on-demand" statutes :

“The unborn child, under the law of property in most jurisdictions, can, among other things, inherit and own an estate, be a tenant-in-common with his own mother, and be an actual income recipient prior to birth." The new

See footnotes at end of article.

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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.” 13

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.” 14

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 liberties,? then it appears that there must be a substantial basis for a constitutional 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.1

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 case where the blood transfusion was given to a blue baby suffering from lack of oxygen after birth. Similarly, in an earlier 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 noteworthy 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. 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 protect 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.” Nevertheless, construing broadly the term “health” in the statute and placing the bruden of proof on the prosecution to show, by the criminal standard 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 proscribe all abortions “not dictated by health considerations."

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See footnotes at the end of article.

our constitutional safeguards will have given way to the era of convenience.

See footnotes at end of article.

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which they are refusing to the unborn child in the womb.
cases on its docket this Term, will recognize the essential humanity of the

For my own part, I'm hopeful that the Supreme Court, in deciding the
unborn child and will no seek to reverse the established precedent that the
If the Supreme Court were to decide otherwise, it would be clear then that

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.** Although a constitutional argument of due process and equal protection was made, the Court of Special Appeals atfirmed 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 constitutional 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 pending on the Supreme Court's docket.

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. 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 constitutional right to life. The blood transfusion and blue baby cases illustrate

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.”

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 response to this recognition should be a striving for the eradication of the Toot causes of poverty, not for the invalidation of lawfully enacted statutes because some segments of society find the statute easier to contravene than

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. 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 outside the state during the last fiscal year of these out-of-state abortions, 878 Tere 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

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

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