hospitals do. Instead of providing these services at the outset, the government frequently completes the abortion and pays the expenses of the poor woman who enters the hospital bleeding from a self-attempted "coat-hanger" abortion.

The fact that the laws prohibiting abortion lead to the discrimination discussed above makes the state responsible. In Griswold v. Connecticut Justice White in his concurring opinion said that:

... the clear effect of these statutes . . . as enforced, is to deny disad-
vantaged citizens of Connecticut, those without either adequate knowl-
edge or resources to obtain private counselling, access to medical assist-
ance and up to date information in respect to proper methods of birth
control. . . . In my view, a statute with these effects bears a substantial
burden of justification when attacked under the Fourteenth Amend-
ment. 22

It seems clear that the liberalization of laws so as to permit women to have a medical abortion under certain circumstances will not end the discrimination, particularly if the law requires consultation with one or more psychiatrists or if public hospitals are too crowded or their staff too busy to permit an increased number of abortions.

In recent years protection cases have often been resolved by requiring states to remove inequities even when the state did not create them. The poor man, for example, must be provided with legal counsel, free transcripts and free appellate counsel if the state grants the right to appellate review as it did in the circumstances present in Griffin v. Illinois.23

Today the poor woman who may suffer more from the birth of another child than the rich woman may be unable to find relief. This means that there will only be equal protection for women when the laws prohibiting abortion are removed from the statute books so that there are no longer loopholes for the affluent only. It may mean that the poor must receive free counselling and therapeutic abortions provided by the public.

Rights of physicians

State laws prohibiting abortions also interfere with the rights of physicians. Rather than being able to make decisions regarding abortions on the basis of their medical skill and judgment, doctors must consider whether their decisions can be successfully defended if the state decides to contest them.

In some states, Missouri for example, physicians, ministers and others are unable legally to advise anyone on how to procure an abortion. This prohibition includes advice about how to secure an abortion in another state or country where it is legal to terminate a pregnancy. Such restrictions accompanied by legal penalties deny the right of physicians, ministers, etc. to free speech.

Presumably, in a public speech, one might tell an audience that abortion is legal in other states and that those desiring abortions could consult an obstetrician in specified cities in those states. If, however, a medical doctor,

43-245 O - 75-44

in the form of information and advice, tells a patient that a specific doctor at a specific address could help the patient, he is liable under the law. In two New York cases, People v. Phelps and People v. Lovell, a person was free to give a woman advice about an abortion, provided she did not get the abortion. If, however, she succeeded, her physician or minister could be held as a party to the crime.24

Not only is freedom of speech denied to the physician, but also the kind of privileged relationship traditionally and constitutionally granted to attorneys and clients. The First Amendment presumably guarantees both freedom of association and privacy in those associations as evident in NAACP v. Alabama.25

The laws prohibiting abortion also restrict the physician's freedom to practice his chosen profession, thus depriving him of personal freedom as well as of the fee by which he earns his living. The Fourteenth Amendment speaks specifically to those rights of liberty and property. United States v. Freund invalidates the Act of Congress regarding prohibition, wherein a physician was restricted in the amount of alcohol he could prescribe. The court said:

It is an extravagant and unreasonable attempt to subordinate the judg-
ment of the attending physician to that of Congress, in respect to matters
with which the former alone is competent to deal, and infringes upon the
duty of the physician to prescribe in accord with his honest judgment,
and upon the right of the patient to receive the benefit of the judgment
of the physician of his choice.26

Abortion laws are virtually unique in restricting a physician in his practice of medicine. If he honestly believes a patient's health would be improved by an abortion or jeopardized by not having one, he cannot, as in other diagnoses, do what he believes is advisable or necessary.

Physicians are vulnerable at two or three levels. They are subject to criminal prosecution not simply for willfully violating the law but for incorrectly interpreting it in any given situation. They are also subject to having their license to practice medicine revoked.

In addition, hospital committees have developed in various states to police hospitals so that a physician who believes he has a legitimate case must receive permission from the committee. Physicians, especially, those who are relatively young, are not likely to ask permission again and again from hospital committees after adverse rulings. Physicians, like other professionals, want to have their judgment respected by their colleagues even if no disciplinary penalities are involved in the proposal of abortions judged to be illegal.

The net result of state laws largely directed at physicians is that they and hospital committees tend to become the adversaries of women seeking abortion rather than medical men seeking to help their patients. This further means that a woman who wants an abortion is deprived of "due process of law" guaranteed in the Fourteenth Amendment. She is deprived because

the physician has a vested interest in immunity from prosecution, and therefore she cannot receive an impartial consideration or judgment with respect to her desire for a therapeutic abortion.

The physician not only has a vested interest in immunity from prosecution but in his reputation. Publicity or rumor to the effect that a medical doctor has been involved in illegal abortion carries overtones not only of improper backroom conduct but also of seeking fees which are presumably larger than for medical activity engaged in openly. The individual physician thus becomes the indirect agent of the state, as hospital committees of physicians are more directly the agents of the state in denying women their right not to have to bear children.

Establishment of religion

It seems clear that one of the chief reasons existing abortion laws have remained on the statute books is the religious teaching of the Roman Catholic Church. There is no public health reason for making medical abortions illegal. With the subsidence of the health rationale, laws prohibiting abortions have been reinterpreted and defined on different grounds, chiefly by those with doctrinal religious interests that have also changed over time. In earlier times, some distinction was allowed between the unformed and the quickened fetus.

Roman Catholic teaching on this subject has been reaffirmed by Pope Paul VI in Humanae Vitae, his encyclical of July 29, 1968. He wrote

... that the direct interruption of the generative process already begun,
and above all, directly willed and procured abortion, even if for thera-
peutic reasons, are to be absolutely excluded as licit means of regulating
birth.

Daniel Callahan, a Catholic layman, in his monumental book Abortion: Law, Choice and Morality, states:

In the United States the hierarchy as a whole as well as local hierarchies,
have been adamant in their opposition to movements designed to change
the generally restrictive American state laws. In both England and the
United States, Catholic legislators, doctors and lawyers have been vocal
in support of tight laws.27

It is not necessary to labor the case to suggest that the maintenance of abortion laws solely or chiefly because they are espoused by one or more religious groups is a violation of the spirit and letter of the Establishment Clause in the First Amendment.

A number of Roman Catholics and persons from other churches or faiths who are opposed in principle to abortion nevertheless recognize that it is one thing to hold a religious conviction about abortion and another thing to try to impose it on others (perhaps a majority in each state) who do not share that conviction. They recognize that the state should not enforce a religious conviction unless it has a secular validity that is obvious to those of other religious groups and to those who hold no sectarian position.

Civil liberties of all concerned

There is no way to protect the civil liberties of women, physicians, clergymen and others who are directly or indirectly involved in the process of seeking, advising or performing abortions by laws which prohibit abortions even when certain exceptions are made. If abortions are prohibited, those who advise criminal acts or assist in them are presumably vulnerable.

The civil liberties of all concerned can be protected only when abortion laws are repealed or otherwise invalidated, so that the woman and her physician are free to make the necessary decision. This does not and should not preclude regulatory laws which require that abortions like other operations be performed in safe and sanitary settings such as clinics, hospitals and doctors' offices. Where a law requires hospital abortions, the state has a duty to see that church hospitals do not by their refusal to accept abortion patients nullify the intent of the law. Many, if not most, church hospitals by accepting public funds have become semi-public institutions.

Regulatory laws may also acknowledge that physicians whose religious convictions or consciences prevent their performing abortions do not have to do so except in emergency situations where other physicians are not immediately available.

Regulatory laws, in other words, should be so framed as to preserve the civil liberties of women, physicians, the poor, and others who are at present deprived of their rights either by laws prohibiting abortions or by socio-economic conditions which discriminate against them.

FOOTNOTES

1. 27 N.J.L. (3 Dutcher) 1858 at 114-15.

2. 6 Revisers Notes pt. IV, Ch. 1, tit. 6, 8, 28 at 75 (1828). Also see Means, The Law of New York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of Constitutionality, 14 N.Y.L.F. 450-51 (1968).

3. Ibid.

4. People of State of California v. Robb, Case 149005, Case 159061, Central Orange County Judicial District, January 9, 1970.

5. Tom Clark, "Religion, Morality, and Abortion: A Constitutional Appraisal," 2 Loyola University of L.A., L. Rev. 1 (1969), pp. 9-10.

6. N.Y. Rev. Penal Law 125.05.

7. Paul Ramsey, "Feticide/Infanticide Upon Request," Religion in Life, Summer 1970. Nashville: Abingdon Press.

8. 24 N.Y. 2d at 485, 248 N.E. 2d at 904, 301 N.Y.S. 2d at 70, 31 N.J. 353, 157 A, 2d 497.

9. 42 N.J. 421, 201 A. 2d 537 (per curiam), cert. denied, 377 U.S. 985 (1964).

10. Keeler v. Amador County, California, Superior Court, 276 A.C.A. 324.

11. Daniel Callahan, Abortion: Law, Choice and Morality. New York: The Macmillan Company, 1970, p. 475.

12. 381 U.S. 479 (1965).

13. Clark, op. cit., p. 9.

14. (69 Civil 4284).

15. No. 590333, California Superior Court, San Francisco, September 24, 1968. 16. Sherri Finkbine, "The Lesser of Two Evils" in A. Guttmacher, ed., The Case for Legalized Abortion Now. Berkeley: The Diablo Press, 1967, p. 15-20.

17. Rodgers, et al v. Danforth, U.S. District Court for the Western District of Missouri, Cause No. 18360-2.

20. Robert E. Hall, “Abortion in American Hospitals," American Journal of Public Health, November 1967, p. 1934.

21. Gold, Erhardt, Jacobziner and Nelson, "Therapeutic Abortions in New York City: A 20 Year Review," American Journal of Public Health, July, 1965, p. 964 (Table 1).

22. 381 U.S. 479, 503 (1965).

23. 351 U.S. 12 (1956).

24. People v. Phelps, 15 N.Y.S. 440 (3d Don't 1891) aff'd, 133 N.Y. 267, 30 N.E. 1012 (1892). People v. Lovell, 40 Misc. 2d. 458, 242 N.Y.S. 2d 958 (Oneida Cty. Ct., 1963).

25. 357 U.S. 449, 462 (1958).

26. 290 Fed. 411 (D. Mont. 1923).

27. Callahan, op. cit., p. 434.