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For in reading the test cases on the constitutionality of abortion statutes, one cannot help but think that due process and equal protection are but legalese for insuring the convenience of the living. Because this is a time of concentration on making life as easy as possible, by holding the abortion statutes unconstitutional, the Supreme Court would insure that thousands of lives would be made much simpler and more convenient by not allowing a child to be born.
In that event, I have every intention of introducing a resolution to amend the Constitution in the following manner :
“The right of the unborn to life shall not be abridged, and unborn persons shall have the same rights as others to the equal protection of the law."
If one of the purposes of a Constitutional amendment is to clarify the language of the fundamental principles upon which the United States was founded, then in the words of that 1859 AMA resolution, "such unwarrantable destruction of human life" would certainly call for a clarification of the meaning of our inalienable right to life.
Unfortunately, this clarification is no longer necessary only for the unborn. The anti-life movement has already been extended as in the case of the mongoloid babies which have been allowed to die after birth and in the case of the aged and infirm who would be allowed to die if a euthanasia bill presently pending in the Florida State Legislature is passed by that body.
Just as we are now witnessing the attempted extension of the abortion mentality on constitutional grounds, so also will the constitutionality of killing the unborn be extended to the constitutionality of killing the living without due process of law.
1 American Medical Association, Minutes of the Annual Meeting 1859, Tenth Annual Medical Gazette 409 (1859).
2 Montagu, Life Before Birth 2 (1964). 3 F. Gottlieb, Developmental Genetics 17 (1966). + Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567 (1921). 6 Liley, Modern Motherhood 28 (1967). 6 Id., at 26-27. ?W. Prosser, Handbook of the Law of Torts sec. 56, at 355 (3rd ed. 1964). 8 Maledon, The Law and the Unborn Child: The Legal and Logical Inconsistencies, 46 N.D. Lawyer_349 (1971) ; Noonan, The Constitutionality of the Regulation of Abortion, 21 Hast. L.J. 51 (1969): Noonan, Amendment of the Abortion Law: Relevant Data and Judicial Opinion. 15 Cath. Law. 124 (1969); 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. 411 (1968).
• Hall v. Hancock, 32 Mass (15 Pick.) 255 (1834).
Raleigh Fitkin— Paul Mem. Hosp.' v. Anderson, 42 N.J. 421, 201 A.2d 537, cert. denied. 377 U.S. 985 (1964).
19 State v. Perricone, 37 N.J. 463, 181 A.2d 751 (1962).
20 In re Application of President of Georgetown University Hospital, 331 F2d 1000 (D.C.Cir.) cert. denied., 337 U.S. 978 (1964). 21 U.S. v. Vuitch, 402 U.S. 62 (1971). 22 Id., 305 F. Supp. 1032 (D.C.D.C. 1969). 23 22 D. C. Code sec. 201, provides inter alia:
“Whoever, by means of any instrument, medicine, drug, or other means whatever, procures or produces or attempts to procure or produce an abortion or miscarriage on any, womān, unless the same were done as necessary for the preservation of the mother's life or health and under the direction of a competent licensed practitioner of medicine, shall be imprisoned in the penitentiary not less than one year or not more than ten years
24 State v. Vuitch, 10 Md. App. 389,_271 A.2d 371_(1970).
25 Roe v. Wade, 314 F.Supp. 1217, (D.C.N.D. Tex 1970), appeal pend., No. 808 : Rosen v. Louisiana State Board of Medical Examiners, 318 F. Supp. 1217 (D.C.E.D. La. 1970) appeal pend., No. 1010; Rodgers v. Danforth, appeal pend., No. 1402; Doe v. Bolton, 319 F.Supp. 1048 (D.C.N.D. Ga. 1970) cross appeals pend., Nos. 971, 973.
27 Genl Assembly of the U.N., “Declaration of the Rights of the Child" adopted unanimously in the plenary meeting of Nov. 20, 1959, Official Records of the General A88embly, 14th Session, p. 19-20.
28 Auerbach, Stuart,"2/3 of Users of Abortion Clinic White," in The Washington Post, August 26, 1971, p. B-1. 29 The Evening Capital, “Maryland women abort elsewhere,” November 12, 1971.
ZERO POPULATION GROWTH,
Fort Wayne, Ind., March 27, 1974. Hon. BIRCH BAYH, Senate Judiciary Subcommittee on Constitutional Amendment, U.S. Senate, Washington, D.C. Re: Constitutional amendment on abortion.
DEAR SIR: We in Ft. Wayne are very interested in the hearings you are conducting on abortion. Our chapter would like a chance to testify at your hearings, however I am sure your time is limited and the requests are many. Keeping that in mind, as well as the fact that our treasury falls short of financing a trip to Washington, D.C., we are sending you written testimony. We hope you can find time to read it personally and consider our thoughts.
We do not favor a constitutional amendment or any other type of legislation that would render abortion once again illegal. Our reasons are many. I will endeavor to relate all of them briefly and clearly.
The abortion laws, before the Supreme Courts decision making them invalid, were passed in the context of 19th century medical conditions. There were no anesthesias, antibiotics, blood banks or modern surgical procedures, thus making abortion extremely hazardous, as was any surgical procedure. Moral compunction had no part of these laws. Abortion is now safe, when done in the proper facilities; but up until about a year ago when it was legalized, back alley operations continued to keep abortion medically hazardous.
Theologically, opinion is greatly divided. Protestant opinion is diverse. Jewish law consists of a general framework, enabling every separate case to be examined with the widest possible attitude.' In general, major opposition to abortion arises from Roman Catholic and fundamentalist religions.
What part should religion play in abortion law? We feel a religious group is and should be free to characterize abortion as a sin if it sees fit, as well as punish its membership if it sees fit. However, members of other religious groups should have the right to sanction abortion if it is in accordance with their conception of morality and human dignity. No one sect, in our views, should be allowed to impose its views on other religious groups or those whose beliefs are other than religion oriented. Surely each must be able to accept a religious or non-religious way of life as long as civil laws are observed.
At which point then, in a nine month pregnancy can we justifiably call a fetus or embryo a human being? From a biological prospective an unfertilized egg-or any other cell-is quite as "alive" as a fertilized egg, since almost every cell in the body contains the properties of life. The question then, is not the extinction of life, but whether or not we are destroying a human being when embryonic cells are destroyed.
Biologists question the assumption that a fertilized egg is a human being. Many people, all over the country, have been exposed to actual fetuses as well as pictures; to vivid descriptions of heartbeats and talk of brain waves inside the womb. The purpose is to create the impression a fertilized egg is a complete, although miniature, human being. Only time and nourishment, then is needed to allow this tiny creature to grow big enough to live on its own life support systems. This is not true.
A fertilized egg may develop in many ways. Millions are aborted by nature in the first weeks of pregnancy; some defective, but not all. Early aborted tissue is not regarded human, legally, medically, scientifically, socially or religiously. Some with abnormal development are not aborted and result in various non-human forms. They become malignant tumors, chorioepitheliomas, or benign tumors, hydalidiform moles; some develop into anomalous masses of living tissue with bits of identifiable elements : teeth, bones, hair, cartilage, etc. Every variation is possible from an unorganized mass of cellular tissue to a live baby with a cleft lip or extra fingers. The idea of regarding as non-human a baby born with extra fingers, etc., is repugnant to us all. Is not awarding human rights to an anomalous mass of tisue or a tumor
1 New York Metropolitan Region of United Synagogue of AM. “The Jewish Attitude Toward Abortion" (mimeo)
equally repugnant. Can we then accept the idea that an egg, fertilized, is human from the moment of conception?
At which point then can we assume an embryo is more than just a piece of tissue? Embryologists suggest that it is not until the fifth month that the brain of the fetus has developed enough to resemble that of a human being.” It is also around that time when a fetus becomes something more than a tissue inside the mothers body. With intensive care, many babies born after the fifth month of pregnancy can survive.
What of the woman herself. Have you, or any legislator for that matter ever asked a woman that has had or needed an abortion, how she feels about it. Through all the emotional outcries from the "Right to Life" groups, one fact has been ignored. Most women in the United States never have advocated abortion as a form of birth control. Most women seeking abortions are those already with children, that cannot, for various reasons, face another pregnancy. The decision to have an abortion is never taken lightly. Probably no decision a woman makes is more important; no decision can affect her whole life so completely as having a baby.
The belief in fetal rights and the states' rights to regulate reproduction has resulted in much unnecessary anguish for many women and their families.
Antaibortion forces would give fetuses rights that living people don't enjoy. No humans rights to life include the use of another human beings body and life support systems against that individuals will.
Since the Ft. Wayne Chapter of Zero Population Growth was formed three years ago, we have received many calls from women and men with problems related to an unwanted pregnancy. They had no where to turn and hoped we could provide some alternatives. May I relate two of these to you?
A woman called, extremely upset about her sister. The sister already had five children, one right after another. The family was already living at poverty level. Due to a birth control failure she was pregnant again, according to here doctor, probably with twins. Her health was poor and the husband, furious with her for "getting pregnant,” felt it was all her fault and left. Close to a breakdown, with five children to care for and now provide for ; she was truly desperate. Could she obtain an abortion? At this time abortions were illegal and medically she was not a candidate for a therapeutic abortion. What could we tell her?
Then there was a call from a girl, unmarried, a student, who found herself pregnant. During the course of the conversation it became obvious that, although a college student, her knowledge of contraception was very limited and much was incorrect.
Can we truly expect her to change her plans for the future because of an unwanted pregnancy? The father could continue with his plans for his future. Is she less important; is she that much less than an equal human being, that a pregnancy should have precedence over her, and dictate her future?
Ideally prevention would be the answer. But, present conrtaceptive methods are not perfect and sex education is not wide spread, but rather left up to parents, and statistics show how effective that is. Ironically we have found those that are against abortion are the same ones that are against sex education in schools, are against contraceptive use, especially among the under age and single, and think sex is dirty and should be used only to reproduce. They do not recognize it as a perfectly human instinct and would have those that do be forced to accept the strict doctrine of sex only for reproduction purposes.
Possibly the true solution to this most perplexing situation is assuring the money is available for perfecting contraception and then making sure contraception and sex education are available to all, thus eliminating the need for abortion. Thank you for your time. Sincerely,
2 B. I. Balinsky, An Introduction to Embryology (Philadelphia : Saunders
WISCONSIN CITIZENS CONCERNED FOR LIFE,
ORDINANCE CODIFICATION SERVICE,
Milwaukee, Wis., August 16, 1974. Hon. BIRCH BAYH, Chairman, Subcommittee on Constitutional Amendments, Senate Judiciary Committee, U.S. Capitol, Washington, D.C.
DEAR SENATOR BAYH: As a member of the Board of Governors and Board of Directors of the Wisconsin Citizens Concerned for Life and President of the Milwaukee Chapter, I present herewith a statement of the WCCL prepared
I for your committee with respect to the Right to Life Amendment on which you are conducting hearings.
While we would like to present this statement to your subcommittee orally, we realize how crowded the schedules of the Senators are, and so we submit this statement in writing and respectfully request that it be made a part of your hearings and that it be included in the printed hearings of your committee.
We believe we have provided new material to the subcommittee in that we have outlined the impact of the Roe vs. Wade decision of the Supreme Court on the Wisconsin Law.
If there is any further information you would like to have with respect to any matter covered in our statement we would be pleased to try to furnish it to you. Sincerely yours,
STATEMENT OF WISCONSIN CITIZENS FOR LIFE RE HUMAN LIFE AMENDMENT TO
The Wisconsin Citizens Concerned for Life, 4945 West Fond du Lac Avenue, Milwaukee, Wisconsin, has several thousand members and twenty-five local chapters in various communities in Wiconsin. We submit this statement in support of the Human Life Amendment which would protect human life from its biological beginning.
When the U.S. Supreme Court in Roe vs. Wade, 93 S. Ct. 705, declared the Texas abortion statute unconstitutional it also stated that any state criminal abortion statute of the current Texas type is unconstitutional.
The Court made much of the "fact" that the purpose of the Texas statute was to protect the mother and not the unborn child, and also that there was no penalty for the mother for destroying her own child by abortion.
The Wisconsin Statute, however, clearly states that its purpose is to protect the unborn child, and it does impose a penalty on the mother who destroys her unborn child.
However, we can take little encouragement from the fact that our statute differs from the Texas statute. The temper and tenor of the Court clearly indicates that it would engage in some other line of sophistry to find Wisconsin's statute unconstitutional. For the Court was hell-bent in its exercise of social engineering to pave the way for abortions, even if it had to rupture the U.S. Constitution to do it.
Thus in its august wisdom, the Court set aside the will of the citizens of Wisconsin as constantly expressed through their legislators ever since the founding o fthe state in 1848. Somehow we are supposed to draw the conclusion that seven judges in Washington in 1973 are smarter than the people of Wisconsin and the thousands of Wisconsin legislators and judges over the past 125 years who also took an oath to uphold the Constitution of the United States.
A review of the Wisconsin law on abortion over the years will show the attitude and intent of the Wisconsin legislators with respect to abortion : an attitude and intent either ignored or unrecognized by the U.S. Supreme Court in the Roe v. Wade case.
The Wisconsin Constitution adopted in 1848 provides in Article 1, section 9:
"Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character;
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The first publication of the Wisconsin laws after the adoption of the Constitution, the 1849 Revised Statutes of Wisconsin, clearly indicates the will and intent of the legislative to include the unborn child within the class of persons who are to be protected by the law.
Chapter 133, of the 1849 Revised Statutes of Wisconsin is entitled: "Offences Against the Lives and Persons of Individuals" and deals with murder, homicide and manslaughter. Sec. 10 of Chapter 133 reads:
"The willful killing of an unborn quick child, by an injury to the mother of such child, which would be murder if it resulted in the death of such mother shall be deemed manslaughter in the first degree.”
Section 11 reads:
“Every person who shall administer to any woman pregnant with a quick child, any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purposes, shall in case the death of such child or of such mother, be thereby produced, be deemed guilty of manslaughter in the second degree.”
In 1858 these two sections were revised only a striking the word "quick."
Thereafter the text of these two sections remained the same until 1947 except for numbering. (Sec. 10 became par. 4347 of 1878 R.S. and Sec. 340.11 of 1925 Wis. Stats. Sec. 11 became par. 4352 of 1878 R.S. and Sec. 340.16 of 1925 Wis. Stats.)
In 1947 Sec. 340.16 (old Sec. 11) was renumbered 340.095 and amended to read at end :
"... be deemed guilty of murder in the third degree. In case the death of the mother is thereby produced it is unnecessary to prove that the fetus was alive when the act so causing her death was committed."
In 1955 the criminal code revision rewrote the abortion statutes into present Wisconsin Statute Section 940.04 which provides as follows:
"940.04 Abortion. (1) Any person, other than the mother, who intentionally destroys the life of an unborn child may be fined not more than $5,000 or imprisoned not more than 3 years or both.
(2) Any person, other than the mother, who does either of the following may be imprisoned not more than 15 years: (a) Intentionally destroys the life of an unborn quick child; or (b) Causes the death of the mother by an act done with intent to destroy the life of an unborn child. It is unnecessary to prove that the fetus was alive when the act so causing the mother's death was committed.
(3) Any pregnant woman who intentionally destroys the life of her unborn child or who consents to such destruction by another may be fined not more than $200 or imprisoned not more than 6 months or both.
(4) Any pregnant woman who intentionally destroys the life of her unborn quick child or who consents to such destruction by another may be imprisoned not more than 2 years.
(5) This section does not apply to therapeutic abortion which: (a) Is performed by a physician; and
(b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and
(c) Unless an emergency prevents, it is performed in a licensed maternity hospital.
(6) In this section "unborn child" means a human being from the time of conception until it is born alive."
The statutes defined abortion as manslaughter in the second degree from 1849 to 1947, and as murder in the third degree from 1947 to 1955. Since 1955 the statute does not define it, but it still appears in statutes after murder and ahead of manslaughter.
And the statute continually refers to "destroy the life of an unborn child.” Clearly the aim was to protect the unborn child.
The Court in the Wade case said,
"The few state courts called upon to interpret their laws in the late 19th and 20th centuries did focus on the States interest in protecting the woman's health rather than in preserving the embryo and fetus."
The Court in this statement obviously could no tbe referring to the Wisconsin law since it is self-evident that its purpose was to protect the embryo and fetus.