standards, the same consideration and respect? (em-
phasis added) 29

The perception of the humanity of the unborn child is embedded in a variety of human contexts, scientific, medical, legal, artistic, etc. A full personal response to the various contexts is required in a well-ordered society:

Response to the fetus begins with a grasp of the data
which yield the fetus' structure. That structure is not
merely anatomical form; it is dynamic-we apprehend
the fetus' origin and end. . . . Seeing, we are linked to
the being in the womb by more than an inventory of
shared physical characteristics and by more than a num-
ber of made-up psychological characteristics. The weak-
ness of the being as potential recalls our own potential
state, the helplessness of the being evokes the human
condition of contingency. We meet another human
subject.30 (emphasis added)

The Valuation of Unborn Human Life

Honesty compels us all to admit that in the abortion debate the question of when human life begins is not the central issue in dispute. Rather, the main question is: how should society value the unborn human life that is present? Even this broader question, however, should be rooted in a lively cognizance of the reality of the life being valued. Often, however, this valuation process is characterized by a schizophrenia that denies, distorts or dismisses as "mere fact" the reality of the unborn life being assessed so as to advance other particular values.

An editorial in the September, 1970 issue of California Medicine (the official journal of the California Medical Association), accepting as necessary fact what it calls the ongoing demise of the traditional Western ethic that "has always placed great emphasis on the intrinsic worth and equal value of every human life regardless of its stage or condition," acknowledged that "human life begins at conception and is continuous whether intra- or extra-uterine until death." At the same time the editorial defended the quite common denial of this fact as part of the strategy whereby the "new ethic" would gradually replace the traditional ethic.

The process of eroding the old ethic and substituting the
new has already begun. It may be seen most clearly in
changing attitudes toward human abortion. . . . Since
the old ethic has not yet been fully displaced it has been
necessary to separate the idea of abortion from the idea
of killing, which continues to be socially abhorent. 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 extra-
uterine 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 schizophrenic sort of
subterfuge is necessary because while a new ethic is
being accepted the old one has not yet been rejected.
(emphasis added)

The value of the individual human life no longer possesses an inalienable character that gives rise to such procedural rights as due process and equal protection. Individual worth is, under the "new ethic," to be determined by the vision of "a biologically oriented world society." In this new world in which "hard choices will have to be made with respect to what is to be preserved and strengthened and what is not," it is the medical profession that possesses the greatest competence and expertise to provide leadership for us all.

Parallels between this editorial and the Supreme Court rulings on abortion are disturbing. The Supreme Court effectively denied the "well-known facts of fetal development" (Wade, p. 41) by consigning them to the realm of speculation and theory: "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer" (Wade, p. 44). Having avoided a full and open discussion of the question of the objective humanity of the unborn child, the Supreme Court ruled, on moral grounds, that life effectively begins under the law no earlier than viability "because the fetus then presumably has the capability of meaningful life outside the mother's womb" (Wade, p. 48-em

phasis added). The fetus is perfectly viable in utero and only a disease process or attack renders it non-viable.

When the objective reality of individual human life is either denied or reduced to simple factuality, those values that men commonly perceive to flow from the personal transcendence that inheres in the individual (e.g., an inalienable right to life, liberty, pursuit of happiness) are replaced by other values ("meaningfulness," "a biologically oriented world society") that tend to possess a high degree of arbitrariness, caprice, or personal or group bias.

The concept of "meaningfulness" espoused by the Court as the criterion for determining whether any value should be attached to the unborn child raises the spector of the "life devoid of value" ethic that was operative in the genocide and euthanasia programs of Nazi Germany. That ethic is reputed to have been nurtured since the early 1920's by a significant part of the legal and medical professions of Germany.31 Both the California Medicine editorial and the Supreme Court decisions place heavy reliance on the medical profession to exercise judgments that extend beyond their area of medical competence.

On August 7, 1972, Dr. Walter Sackett, a Representative to the Florida legislature, testified before a U. S. Senate Committee on the topic of death with dignity. At that time Dr. Sackett approvingly quoted a statement made to him by a medical director of a Florida hospital for the care of the severely mentally retarded, to the effect that 90% of the 1500 mentally retarded now in two Florida hospitals should be allowed to die. Dr. Sackett invoked the costbenefit model. The money now used to care for these severely retarded individuals could be more usefully diverted to other causes.32

Culturally our society has moved from limited abortion to abortion-on-demand, and now, it appears, our society is moving to limited euthanasia and limited elimination of the mentally retarded. A reasonable man must ask: what are we doing? where are we going?

Perhaps this is the moment that we should seize to reflect on the immediate past history of Western civilization, lest the words of George Santayana apply to us: "Those who do not remember the past are condemned to relive it."

The Supreme Court, by denying the right to life to the unborn child, has rent the fabric of human law whereby the inherent worth of every man is recognized. Such an error, attacking the foundation of human society, must be remedied by amendment to the government's Constitution.

II. THE PROTECTION OF HUMAN RIGHTS IN LAW

Debates about the relationship of law to morality are complex. It is our purpose simply to point to certain fundamental principles which must be incorporated into the legal ethic of any just society.

First of all, there has been a growing awareness throughout the world that the protection and promotion of the inviolable rights of man are essential duties of civil authority, and that the maintenance and protection of basic human rights is a primary purpose of law.

Throughout the 20th century there has been a growing recognition of basic human rights by the United Nations and by individual countries. There has also developed an acute awareness that the human rights of minorities are most easily overlooked or ignored because most often they cannot articulate their claims. Furthermore, there has been a continuing realization that human rights are not subject to distinctions of race, age, sex or national heritage. Rather, they are universal rights of all men and women which are inherent in the nature of man and are the basis of human dignity.

But human rights give rise to duties and to responsibilities, both in the person who possesses the right, and the society of which he is a part. Freedom to exercise one's human rights is qualified by responsibility to society or to another person. For the sake of order, society must have a way to adjudicate apparent conflicts of rights. Thus, a well ordered society establishes laws that will promote and protect human rights, maintain order among persons, and promote the good of all. As Justice Holmes indicated, the First Amendment's guarantee of free expression does not permit a person to yell "fire" in a crowded theater.

The existence of human rights and the fragility with which they are maintained places a claim on society to provide bulwarks

of protection for individuals. A society committed to justice, equality and freedom must establish a system of law that protects the rights of each person while maintaining order and promoting the common good.

This principle was declared by our founding fathers in the Declaration of Independence:

We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator
with certain unalienable rights, that among these are
life, liberty and the pursuit of happiness. That to secure
these rights, Governments are instituted among men,
deriving their just powers from the consent of the gov-
erned. That whenever any Form of Government becomes
destructive of these ends, it is the right of the people to
alter or to abolish it, and to institute new government,
laying its foundation on such principles and organizing
its powers in such form, as to them shall seem most
likely to effect their safety and happiness.

Also, the United Nations Declaration of Human Rights affirms as a guiding principle that:

... it is essential, if man is not to be compelled to have
recourse, as a last resort, to rebellion against tyranny
and oppression, that human rights should be protected
by the rule of law. . . .

and the Declaration proclaims that:

Everyone has the right to life, liberty, and security of
person.

Finally, speaking to a world that welcomed his moral leadership, Pope John XXIII, in the great encyclical, Pacem in Terris, asserted that:

Any human society, if it is to be well-ordered and pro-
ductive, must lay down as a foundation this principle,
namely, that every human being is a person, that is, his
nature is endowed with intelligence and tree will. By
virtue of this, he has rights and duties of his own, flow-
ing directly and simultaneously from his very nature.