274 Catholic University Law Review [Vol. 23:255 look at the consequences to husbands, wives, and children of the masterful confusion, the topsy-turvy constitutional law of divorce, support, and custody, without a sense of the Court's incompetence in Phase Two?98 Who can contemplate the implications of the cases on the rights of the unmarried without a suspicion that the Court has enunciated principles inconsistent with the preservation of the most precious of social goods? A paper on the family may appropriately end with a children's fable"The Gingerbread Man." The Gingerbread Man, you may remember, was an exceptionally well-made work of human artifice. After outrunning many dangers he was taken on the tail of an old fox. The fox moved him from his tail to his back, from his back to his nose, and then threw him, topsyturvey, in the air and on his descent began to eat him. "I'm a quarter gone," cried the Gingerbread Man. Then, "I'm half gone," he cried. Then, "I'm three-quarters gone." And then there was silence. If marriage had a tongue like the Gingerbread Man, what would it cry out now? 98. See Hazard, May v. Anderson: Preamble to Family Law Chaos, 45 VA. L. REV. 379 (1959); Note, Divisible Divorce, 76 HARV. L. REV. 1233 (1963). Appendix C BIOGRAPHICAL DATA OF JOHN T. NOONan, Jr. Born: Boston, Mass., October 24, 1926, the son of John T. and Marie Shea Noonan. Married: Mary Lee Bennett of Weston, Mass., December 27, 1967. Children: John Kenneth, January 5, 1969; Rebecca Lee, October 9, 1970; and Susanna Bain, January 5, 1972. Present Position: Professor of Law, University of California Law School, Berkeley, 1966 to date. Education BA, summa cum laude, Harvard College, 1946 (class of 1947). Studies in English Literature at Cambridge University, 1946-1947. MA, 1949, and Ph.D. in Philosophy, 1951, The Catholic University of America. LLB, Harvard Law School, 1954. LLD (Hon.) University of Santa Clara, 1974. Admission to Bar Massachusetts, 1954. Supreme Court of the United States, 1971. Past Positions— Associate, Herrick Smith, Donald Farley and Ketchum, Boston, Mass., 1955-1966. Associate Professor of Law, University of Notre Dame Law School, 19611963; Professor of Law, 1963-1966. Government Service Member, Special Staff of the National Security Council, 1954-1955, serving as assistant to Robert Cutler, Special Assistant to President Eisenhower. Member, Chairman, Brookline (Mass.) Redevelopment Authority, 1958 1962. Expert, Presidential Commission on Population and the American Future. 1971. Public Service Treasurer, Massachusetts Citizens for Eisenhower, 1956. Vice-President, American Society for Political and Legal Philosophy, 1962 1964. Trustee, Population Council, 1969 to date. Trustee, Graduate Theological Union, 1970 to 1973. Director, Secretary and Treasurer, Institute for Research and Study in Medieval Canon Law, 1970 to date. Consultant, Ford Foundation, Indonesian Legal Fellowships Program, 1969. Consultant, National Institutes of Health, 1973 (on the protection of children in experiments). Consultant, National Endowment for the Humanities, 1973 and 1974 (on legal education and on law and the humanities). Final Judge, Ford Foundation-Rockefeller Foundation Competition for Studies in Population Policy, 1971. Member, Yale Council Committee on Theological Education, Yale University, 1972 to date. Senator, Phi Beta Kappa, 1970 to date. Trustee, Phi Beta Kappa Foundation, 1970 to date. President, Alpha of California, Phi Beta Kappa, 1972-1973. Church Service Consultant, Papal Commission on Problems of the Family, 1965-1966. Governor, Canon Law Society of America, 1970-1972. Member, Committee on Due Process, Canon Law Society of America, 1969. Member, Catholic Commission on Intellectual and Cultural Affairs, since 1965; Executive Committee, since 1972. Trustee, University of San Francisco, 1970 to date. Academic Service Chairman, Program in Religious Studies, University of California, Berkeley 1969-1972. Chairman, Committee on the Robbins Law Library Addition, 1970 to date. Member, Admission Committee, Law School of the University of California, Berkeley, 1972. Editorships Editor, Natural Law Forum, 1961-1969. Editor, American Journal of Jurisprudence, 1969 to date. Member, Editorial Board of Harvard Law Review, 1953-1954: Book Review Editor, 1954. Fellowships Guggenheim Fellowship, 1965-1966. Fellow, Center for Advanced Studies in the Behavioral Sciences, 1973-1974. Lectureships— World Medical Congress, Manila, 1966. Visiting Professor Law, Southern Methodist University Law School, January, 1966. Canon Law Society of America, Annual Meeting, 1969. Visiting Professor of Law, Stanford University Law School,Spring, 1970. Law in a Free Society Lecturer, University of Texas Law School, 1971. Oliver Wendall Holmes, Jr. Lecturer, Harvard Law School, 1972. Catholic Theological Society, Annual Meeting, 1972. Pope John XXIII Lecture, Catholic University of America Law School, 1973. St. Robert Bellarmine Lecture, St. Louis University, 1973. National Television Today, February 2, 1967. Firing Line, November 5, 1972. Firing Line, July 14, 1973. Prizes Phi Beta Kappa, Harvard College, 1945. John Gilmary Shea Prize of the American Catholic Historical Society, 1965. Alumni Achievement Award, The Catholic University of America, 1971. John Gilmary Shea Prize of the American Catholic Historical Society, 1972. St. Thomas More Award, St. Thomas More Society of San Francisco (1974). Law School Courses Functions of the American Lawyer. Contemporary Jurisprudence. Legal Problems in Genetics. Population Problems and the Law. Family Law. Discriminations and Distinctions Based on Age Slavery As An American Legal Institution. Canon Law in a Legal System. Business Interests Chairman, Games Research, Inc., (Boston, Mass.) since 1960. Publications— Books The Scholastic Analysis of Usury, (Harvard University Press) 1957. Contraception: A History of Its Treatment by the Catholic Theologians and Canonists (Belknap Press of Harvard University Press) 1965; translated into French, Spanish and German; paperback edition, New American Library, 1967. Power to Dissolve: Lawyers and Marriages in the Courts of the Roman Curia (Belknap Press of Harvard University Press) 1972. Editor, The Morality of Abortion, (Harvard University Press) 1970. Articles Law: "The Astronomer and the Gondolas", Harvard Alumni Bulletin, September 28, 1957, reprinted in Selected Materials Prepared for the Committee on Government Operations of the United States Senate and Its Sub-committee on National Policy Machinery, 86 Congress Second Session, 1960. "Inferences from the Invocation of the Privilege Against Self-Incrimination", Virginia Law Review, XXXXI (1955). "Value References in the Teaching of Negligence", Journal of Legal Education, VIII (1955). "Allocation of Administrative Responsibility", Antitrust Law and American Business Abroad by Kingman Brewster, Jr. (McGraw-Hill, 1958). "The Purposes of Advocacy and the Limits of Confidentiality”, Michigan Law Review, LXIV (1966). "Academic Freedom and Tenure: St. John's University (N.Y.)", AAUP Bulletin, LII, March, 1966. "From Social Engineering to Creative Charity", Knowledge and the Future of Man: An International Symposium, edited by Walter J. Ong, S.J. (Holt, Rinehart and Winston, 1968). "Az Abortusz-Kerdes Tortenete", Merlez (January, 1969). "Amendment of the Abortion Law: Relevant Data and Judicial Opinion", The Catholic Lawyer, XV (1969). "The Constitutionality of the Regulation of Abortion", The Hastings Law Journal, XXI (1969). "Population Problems and Abortion", California Monthly, LXXX (1969). "Freedom to Reproduce: Cautionary History, Present Invasions, Future Assurance", Proceedings of the American Civil Liberties Union Biennial Conference (1970). "Canon Law in the United States: A Time of Ferment," in Legal Thought in the United States Under Contemporary Pressures (ed. J. N. Hazard and W. J. Wagner, 1970). "Human Rights and Canon Law" in Rene Cassin Amicorum Discipulorumque Liber IV (1972). "Raw Judicial Power", National Review, March 2, 1973. "The Family and the Supreme Court", Catholic University of America Law Review 23 (Winter, 1972). Contraception "Tokos and Atokion: An Examination of Natural Law Reasoning Against Usury and Against Contraception", Natural Law Forum, X (1965). "Catholics and Contraception", Act, July, 1965. "Contraception and the Council" from Commonweal LXXXIII March 11, 1966 reprinted in The Catholic Case for Contraception edited by Daniel Callahan (Macmillan, 1969) translated as "Das Konzil und die Empfangnisverhutung", Schweizer Rundschau LXL (1966). "Authority on Usury and on Contraception", Tijdschrift Voor Theologic 1966, republished in Crosscurrents Winter 1966 and in the Wiseman Review Summer 1966, and digested in Theology Digest March, 1967. "Birth Control: The Shaping of the Catholic Doctrine", The Perkins School of Theology Journal, XXI (1967), reprinted in St. Joseph Magazine (July, 1967). "Contraception and the Pope's Conscience", Commonweal, LXXXIV March, 1967. "La Dottrina della chiesa sull'usura e la contraccezione", Crescente e Motliplicatevi Sempre e Communque (Jaca Book, 1968). "Intellectual and Demographic History", Daedalus (Spring, 1968). "The Catholic Church and Abortion", Natural Law Forum, XII (1967). Marriage "Freedom, Experimentation and Permanence in the Canon Law of Marriage", Law for Liberty, edited by James E. Biechler (Helicon, 1967). "Marital Affection in the Canonists", Studia Gratiana XII: Collectanea Stephan Kuttner (1967). "History and the Values of Christian Marriage", Marriage in the Light of Vatican II, edited by James T. McHugh (Family Life Bureau, 1968). "Novel 22", The Bond of Marriage, edited by William W. Bassett (University of Notre Dame Press, 1968). "Indissolubility of Marriage and Natural Law", American Journal of Jurisprudence, XIV, (1969). "Papal Dissolution of Marriage: Fiction and Function", Proceedings of the Canon Law Society of America (1969). "The Steady Man: Process and Policy in the Courts of the Roman Curia," 58 California Law Review 628 (1970). "USRA's Case" in Wrenn, ed. Divorce and Remarriage in the Catholic Church. "Power to Choose", Viator (1973). Theology "Renan's Life of Jesus: A Re-Examination", The Catholic Biblical Quarterly, XI (1949). "Hegel and Strauss: The Dialectic and the Gospels", The Catholic Biblical Quarterly, XII (1950). "The Layman, Institutions, and the Church", Trinity College Alumni Journal, XXXIX (Winter, 1966). "Celibacy in the Fathers of the Church", The Problematic and Some Problems", Celibacy: The Necessary Option, edited by George H. Frein (Herder and Herder, 1968). "The Amendment of Papal Teaching by Theologians", Contraception: Authority and Dissent, edited by Charles E. Curran (Herder and Herder, 1969). "Making One's Own Act Another's," The Catholic Theological Society. Proceedings of the Twenty-Seventh Annual Convention (1972). "Responding to Persons", Theology Digest (Winter, 1973). Philosophy "The Existentialism of Etienne Gilson", The New Scholasticism, XX, (1950). "The Protestant Philosophy of John Locke" Philosophical Studies In Honor of the Very Reverend Ignatius Smith, O.P., edited by John K. Ryan (The Newmian Press, 1952). "Introduction to Volume VIII", Natural Law Forum, VIII (1963). "Deciding Who Is Human", Natural Law Forum XIII (1968). "The Case of the Talented Bakers", Harvard Medical Alumni Bulletin (Winter 1972). "Konventionen und Konstruktionen der Naturrechts", in Bochle and Bochenforde, ed., Naturrecht in der Kritik (1973). "Responding to Persons: Methods of Moral Argument in the Debate over Abortion," Theology Digest 24 (Winter, 1973). Senator BAYH. Thank you, Professor Noonan. STATEMENT OF JOHN ELY, PROFESSOR OF LAW, HARVARD UNIVERSITY Mr. ELY. Shortly after the decision in Roe was rendered I analyzed it in some detail and criticized it strongly in an article appearing at 82 Yale Law Journal 920. So I will only briefly summarize my conclusions respecting the opinion, and then go on in the time I have remaining to talk for a few moments about the process of constitutional amendment. The opinion in Roe raises many problems, some peripheral and some central. Among the peripheral ones that I would mention are two conclusions that I think do not flow even from the court's premises. I have specific reference; First; To the holding that during the first trimester of pregnancy no health regulation whatsoever, except for the fact that an abortion performed by a doctor, is permissible. And second: I refer to its holding, which seems clear-although it is undefended-that during the third trimester, at which point even the Supreme Court is prepared to grant that the fetus is a person, the States are obligated constitutionally to prefer the health of the mother over the life of the fetus at that point. Given the broad definition that health has, and rightly has, I think, been given in these contexts, that conclusion, which I repeat was undefended, seems particularly frightening. |