It may be that we have passed the point of no return to that remedy; and that this Committee and the U.S. Senate will judge it wiser to frame an amendment in some fashion substantively protecting the unborn from arbitrary choices. Here there may be an analogy with what followed in the wake of the Dred Scott decision. That decision took from the free States and territories the right and the power to recognize the humanity and protect rights of black people and ex-slaves. We all know the sequel: a tragic civil war, a more perfect union wrought out through carnage and sacrifice, the Fourteenth Amendment imposed on the former slave states. Perhaps that direct approach and substantive constitutional protection of the rights and liberties of black ex-slaves was the better way-instead of trusting the far slower process of political and legislative deliberation in the free states and the gradual erosion of slavery where it existed. Perhaps, then, some form of substantive constitutional protection of unborn human life is needed to overturn the "substantive due process" of a judicial decision that has the effect of turning every question both as to the wisdom and as to the morality of abortion over to private decision-makers.

One must at the least insist on the strong analogy between these two constitutional crises. This nation is in a state of civil and moral strife. Not because "pro-life" people are generally speaking unwilling to be outvoted; but because they now have no voice to cast about the extent of the human community in which we are to live. The right to life is so basic to our civil compact that one can imagine the divisions among us leading to open conflict, but for two differences: (1) Because of the more perfect union wrought by the Civil War there now exist no States claiming or actually exercising the sovereignty they once did another loss of rights and powers formerly reserved to the States cannot now be resisted, and of course ought not to be. (2) In our present case no one has a "property" self-interest to assert or to deny in the case of the unborn child as in the case of the slaves. (The claim that a woman has a right to do what she will "with her own body" comes close to a property-claim over the fetus; but perhaps that language ought not to be taken seriously.) For these reasons, our present constitutional crisis is apt to expend itself in moral passion; and, unless there is remedy, further steps privatizing life-and-death decisions and massive alienation from the body politic that has given over to private choices the determination of who belongs with us as a people each counting for one and no one for more than one.

There will be others testifying before you who will object to my placing confidence in the people through their representatives to judge who counts as a human life. This confidence may seem like the Court's touching faith in physicians to make independent medical decisions and not to perform abortions on request, or its privatizing of these decisions and regulating the wisdom and justice of such decisions only by licensure as if they are matters of standard medical practice and not also poltical or societal decisions about the boundary of the human community of an equal justice to all. My point is simply that physicians are society's deputies in applying the criteria for stating that a new human being has put in his appearance or has passed from among us. My point thereafter is simply that decisions as to the criteria are necessarily human decisions, too; that such decisions as to the extent of our social compact must rest with the people and our deliberative processes; that "the buck stops here" and cannot be appealed to anyone's private "revelation" nor ought it to be taken from us and then handed over to a pair of other human beings to decide or to any group less than the total body politic.

Perhaps my confidence that returning the abortion issue to the States may be a sufficient remedy rests back upon my belief that the factual evidence (that is all it can be: a set of factual "good reasons") for the individuated humanity of the unborn child is now quite as clear as the evidence for the human countenance of any black, or of any Senator or of anyone who testifies before you. Before we were so rudely interrupted on January 22, 1973, the weight of the evidence had opened a new era of human childhood, as I have said, and this weight was making its imprint on our law itself. The Court might have taken judicial notice of that evidence, instead of facing away from it. It is certainly the business of State legislatures and now of the Congress to take notice of facts concerning the unborn. There is reason enough in our modern knowledge for a Constitutional amendment substantively protecting the unborn in some fashion and from some stage in their achievement of individuated humanity.

That would be a maximal remedy; my tentative proposal is a minimal one; Congress should say which is optimal and/or feasible. Taken alone, Senator Mondale's "family impact" test would, I suspect, have led us long ago in the direction of Federal marriage and divorce legislation, as now maybe that test should lead us to see the need for some substantive decision-making at the constitutional level or at the Federal legislative level on the matter of abortion. But our system is built upon the 50 State jurisdictions; and, because of this, and in spite of some clear disadvantages that has, I incline toward a constitutional solution limited to returning to the States and the people within each of those jurisdictions the question of what we mean by the social compact of life with

life.

Professor Paul Freund, the distinguished authority on constitutional law at Harvard University, has said that our system of division of powers-executive, legislative, and judicial-ultimately must rest upon the exercise of what he calls "constitutional morality." The staff of the House Judiciary Committee must have had "constitutional morality" in mind when in its memorandum on the meaning of an impeachable offense it said that a President has the duty "not to abuse his powers or transgress their limits-. not to act in deroga

tion of powers vested elsewhere by the Constitution"; and again in its reference to "adverse impact on the system of government" (N.Y. Times, February 22, 1974). If that is correct, then impeachment of a President is a remedy for any derogation of powers vested elsewhere by the Constitution; it is a way to insure "constitutional morality."

The fact is, however, that impeachment is no remedy for an exercise of judicial power in derogation of powers vested elsewhere or for decisions of the Court that have an adverse effect on our system of government. It is no remedy for decisions "beyond the call of Constitutional duty." That remedy is Constitutional amendment; that is the way to insure that "constitutional morality" shall continue constantly to be a restraint upon judicial activism. To our founding Fathers in Constitutional Convention, Professor Edward Corwin has pointed out in his book The President, Office and Powers, "the executive magistracy was the natural enemy, the legislative assembly the natural friend of liberty." The members of the Constitutional Convention, of course, knew nothing of the judicial review that was later to become established. They could not have imagined that the judicial magistracy might become the natural enemy of liberty or of the legislative power in its direction of an ordered liberty. It would be ironical if the natural friend of liberty, our national legislature, should now be aroused to institute impeachment procedures against an "imperial Presidency" for acts in derogation of powers vested elsewhere by the Constitution or for acts having adverse impact on our system of government, and if then the Congress does not bestir itself to use the remedy of Constitutional amendment to correct a decision of an imperial Court that likewise has effects in derogation of powers vested elsewhere by the Constitution and adverse impact on the division between the judicial and the legislative power.

It would be undefendable if impeachment may be used to chasten the executive magistracy and not an amendment to chasten the judicial magistracy; if against the one but not the other "Constitutional morality" can be sustained. In this regard, the extent to which a Supreme Court decision is popularly and automatically believed to be the last word on what the law is is also a measure of how legislative and amendatory authority has slipped from "the legislative assembly." The Court, of course, in Bolton (issued, I suppose, one minute after Wade) ceremonially refers to Wade in the matter of what the law is. There can be no objection to that manner of speaking when the Court does it. But if the people, the State legislatures and the Congress join the chant, that is a certain sign that we wish to crown the judicial magistracy and legitimate its word as our final law. The amendatory procedure is more legitimate still; and it is our chief recourse for insuring that what Freund called "Constitutional morality" shall be a force in the interplay of the separate powers in our government. In any case, anyone who believes that there was need to submit to the States an "equal rights" amendment, going beyond the Fourteenth in guaranteeing equal rights for women, cannot with any consistency object to an amendment going beyond the Fourteenth, and correcting the Court's interpretation of it in Wade and Bolton, now being submitted to the States for possible adoption into our fundamental law. Object they surely will, with inconsistency and distrust of the people and of their right to amend in this instance. Unhesitatingly, the call should go forth for the Congress to move an amendment that at the least restores to the States legislative power to decide whether and how human life-and-death questions shall

be dealt with in the criminal law and in regulation of the fateful actions of physicians.

The opponents of a Life Amendment may finally be correct. The issue is the right of choice or decision. But that must be rightly understood. The issue is the right of a people through the legislative process to set the "credentials," the criteria, the signs of humanity to be used in making life-and-death decisions. Setting the outer limits of the human community should not be allowed to pass into the hands of private individuals, one, two, or many.

Senator BAYH. Our next witness is Mr. William Thompson, United Presbyterian Church.

Would you excuse me.

[Brief recess.]

Senator BAYH. May we reconvene, please?

Mr. Thompson, I apologize for the abrupt departure. I introduced you and got up to say hello to you, and then the vote bell rang. We are so glad to have you with us.

STATEMENT OF WILLIAM THOMPSON, STATED CLERK, UNITED PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA

Mr. THOMPSON. Thank you, I quite understand the obligations which you have.

I wish to express my appreciation for the opportunity to testify and to assure you personally of my appreciation for your patience in staying so long and hearing so many of us.

My name is William P. Thompson. I am a lawyer and was engaged in private practice for 20 years. In 1966, I was elected stated clerk, which is the permanent executive officer of the general assembly of the United Presybterian Church in the United States of America. This office is the permanent executive office of the general assembly. I am appearing there on behalf of the general assembly which is the highest governing body of the denomination, a judicatory of approximately 750 commissioners, half laypersons and half clergy, elected by 162 presbyteries in all 50 States, within whose bounds there are 2,916,757 members. I recognize that within the total membership of the church there are individuals holding differing and sometimes conflicting views. I do not presume therefore to speak on behalf of each and every member of the Church.

My testimony is based on actions taken by several general assemblies by substantial majorities, in a representative democratic process. The general assembly does function in a representative capacity. Its pronouncements on social issues, to which the Church has an obligation to speak, arising out of the historic tenets of the faith, are understood to be for the guidance of and not as binding upon the consciences of the constituent members who remain free to address themselves responsibly to these issues as Christians and as citizens.

I go into the matter of procedure, Mr. Chairman, because in my judgment what I have outlined to you is rather typical of most of the Protestant churches in the United States which make decisions of the kind which I will report to you by a democratic and representative process.

In the course of my testimony, I shall refer to a resolution on "Freedom of Personal Choice in Problem Pregnancies" adopted by the 184th General Assembly in 1972 (minutes 1972, pt. I, Journal, p. 265 to 267) shown as appendix A; a resolution concerning legisla

tion adopted by the 182d General Assembly in 1970 (minutes 1970, pt. I, Journal, p. 891), shown as appendix B, which was predicated upon a report on "Sexuality and the Human Community" recommended to the Church for study and appropriate action by the 182d General Assembly in 1970 (minutes 1970, pt. I, Journal, p. 888 at p. 910) shown as appendix C, and a "Resolution on Abortion" adopted by the 1970 national meeting of the United Presbyterian Women's Organization (U.P.W., minutes 1970, pps. 50 and 51) shsown as appendix D. The relevant portions of these documents are attached hereto, and I request that they be incorporated as part of my testimony.

Senator BAYH. Without objection, so ordered. [The documents referred to follow:]

APPENDIX A

STATEMENT ADOPTED BY THE 184TH GENERAL ASSEMBLY (1970)

FREEDOM OF PERSONAL CHOICE IN PROBLEM PREGNANCIES

Whereas, God has given persons the responsibility of caring for creation as well as the ability to share in it, and has shown his concern for the quality and value of human life;

Whereas, sometimes when the natural ability to create life and the moral and spiritual ability to sustain it are not in harmony the decisions to be made must be understood as moral and ethical ones and not simply legal ;

Whereas, society now provides minimal care for unwanted children and inadequate support systems for women with children;

Whereas, most present abortion laws are inadequate and morally and ethically unjustifiable because: a) the laws do not deal with the problem of the bodily rights of women nor affirm their life and health; b) the laws do not grant women the right not to bear unwanted children; c) the laws do not deal with the emotional, social or economic welfare of other members of a family into which an unwanted child may be born; d) the laws fail to solve the problem of illegal abortions but leave the problem to be handled by criminals, quack practitioners and a small number of reputable physicians willing to risk their practice and reputation by performing abortions; e) the laws do not relieve the burden which the present structure places on the poor and on those who are unsophistieated about the ways of medicine and the law; and f) the laws do not insure the right of all children to be born as wanted children;

Therefore, in support of the concern for the value of human life and human wholeness and for the freedom of choice advocated in the report, "Sexuality and the Human Community," received for study by the 182nd General Assembly (1970), in support of the call to repeal inadequate abortion laws by that Assembly and in support of the resolution passed by United Presbyterian Women (1970), the 184th General Assembly (1972):

a. Urges the development, support and expansion of agencies where women with problem pregnancies have assistance and counseling on options such as keeping the child, adoption alternatives and abortion, with future access to birth control methods. As part of the counseling process, it urges consideration of the feelings of the father and the family.

b. Declares that women should have full freedom of personal choice concerning the completion or termination of their pregnancies and that the artificial or induced termination of pregnancy, therefore, should not be restricted by law except that it be performed under the direction and control of a properly licensed physician.

c. Continues to support the establishment of medically sound, easily available, and low-cost abortion services.

d. Urges the church to demonstrate its concern for women with small children by encouraging, 1) the support of prenatal care for all pregnant women, 2) the principle that all children are legitimate at birth, 3) the establishment of support groups for single women who elect to keep their children, and 4) the formation of high quality child-development centers.

e. Supports legislation to repeal abortion laws not in harmony with this statement and encourages responsible groups working for such repeal.

f. Urges the development and dissemination of biblical and theological materials on the issue of abortion in order to facilitate responsible dialogue.

g. Directs the Stated Clerk of the General Assembly to urge synods and presbyteries to study and take appropriate action on the issue of abortion in line with sections a. through f. above, including training opportunities for pastors and laypersons in counseling on problem pregnancies.

h. Directs the Stated Clerk of the General Assembly to request seminaries to include appropriate consideration of the issue of abortion in courses in pastoral counseling and social ethics as well as in continuing education programs offered to clergy, and to request church-related colleges to consider the issue of abortion in appropriate courses, programs, or counseling services.

APPENDIX B

ADOPTED BY THE 182ND GENERAL ASSEMBLY OF THE UNITED PRESBYTERIAN CHURCH

(1970)

LEGISLATION

Believing that the law should provide for the optimal condition of physical and mental health, and should allow for the optimal exercise of private moral judgment and choices in matters related to the sexual sphere of life; and recognizing that religious convictions held by individuals should not be imposed by law on the secular society; the

2. Declares the artificial or induced termination of pregnancy is a matter of the careful ethical decision of the patient, her physician, and her pastor or other counselor and therefore should not be restricted by law, except that it be performed under the direction and control of a properly licensed physician.

APPENDIX C

REPORT ON SEXUALITY AND THE HUMAN COMMUNITY RECOMMENDED FOR STUDY AND APPROPRIATE ACTION BY THE 182ND GENERAL ASSEMBLY OF THE UNITED PRESBYTERIAN CHURCH (1970)

In various human societies, primitive and modern, abortion has been utilized as a common means of birth control. In some, its use has been restricted to therapeutic situations where abortion is resorted to only as a means of preserving the life and health of the mother.

The extremely conservative attitude towards abortion which has prevailed in both Protestant and Roman Catholic churches during the last century has, in general, been based on the attitude that human life exists from the instant of the penetration of an ovum by a sperm, and that the cellular, foetal, and embryonic life that proceed from that moment all have equal spiritual status and deserve equal legal and moral protection.

A careful examination of the Judaeo-Christian tradition on the matter of abortion reveals that this attitude, while old, has not always prevailed, nor did it even enjoy status as the official teaching of the Roman Catholic Church until 1869 (except for a three-year period between the promulgation and the revocation of a papal bull Effraenatum in the 16th century).1 Various theological and hermeneutic traditions have concluded that no "person" exists in the form of nascent life until after forty days or after eighty days, or after the birth process, or after one day following birth, or in the case of premature infants after thirty days following birth. St. Augustine taught, in the 5th century, that an ensouled human life was present after the foetus had quickened (thus after eighty days), even though Tertullian and St. Gregory of Nyssa had earlier held the position that the soul entered the body at conception.

The continuing view of most rabbinical teachings during the post-Biblical era has been that abortion, while a grave proceeding, is not specifically forbidden in the Bible or the Talmud. Indeed, Exodus 21:22 and other instances of the Old Testament laws concerning homicide suggest that the foetus is not to be regarded

1 Birth Control in Jewish Law, David M. Feldman. New York University Press, 1968. p. 269.