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THE CASE FOR THE UNBORN BABY

The Constitutional

Right To Life

by

Donald L. Billman, J.D.

REPRINTED FALL, 1971 FROM

A Publication of the Student Bar Association

DISCOVERY

The University of Toledo College of Law

Toledo, Ohio
Volume 4 Number 4 Spring, 1971

57-782 0 - 76 - 29

ABORTION AS A LEGAL ISSUE

A DISCOVERY SPECIAL FEATURE:

THE CASE FOR THE UNBORN BABY:
THE CONSTITUTIONAL RIGHT TO LIFE neither pay us, vote for us or thank us-may one day soon find

himself with a handful of "rights" as difficult to retain as a by Donald L. Billman handful of sand for that right which gives all other rights

meaning-the right to life-has ceased to exist. The Constitution of the United States is a law for rulers

The issue therefore is one of the gravest Constitutional and people ... and covers with the shield of its

proportions-whether a life may be taken without "due protection all classes of men, at all times, and under all

process of law" and whether a segment of society can be circumstances. 1

deprived of the "equal protection of the laws”, or stated

another way-whether "the shield" of the Constitution does in The stakes are high-for the Unborn Baby, his life and for

fact, as Justice Davis believes, act to protect "all classes of those of us who have crossed that "bridge between (the) two

men, at all times and under all circumstances”. stages of life"2 the existence of the rights which are ours by virtue of the Constitution including the right to continue in the 1. The Unborn Baby-An Autonomous Human Being state of being alive"

The human-ness of the Unborn Baby-the fetus,is the crux The assault against the basis of all legal rights-the of the "abortion" controversy for if the subject of the surgical individual's right to continue in existence "The right to procedure termed "abortion" is not in fact a small human life"-has been launched against the most helpless member of being but is in fact "mere protoplasm" or a mere "appendage our society. The Little Unborn Baby has been recognized by of the woman" then there is nothing here of concern to the the courts to have interests deserving of protection in all major law. The issue then, concisely put, is what is it that the mother areas of law-property, tort and equity. The law, which has seeks to have removed from her body? continuously expanded its protection of interest of the

The issue of "what is life" is a medical question-and Unborn Baby in accord with advances in medical science,

medical science now recognizes that life is a continuum, from which has demonstrated conclusively the humanity of the conception to the grave. Modern science-embryology, Unborn Baby, has been put in the anomalous position of fetology, genetics, perinatology, and all of biology-has protecting the legal rights of one who it is argued, by those

established conclusively the essential humanity of the Unborn classified by Professor Robert Byrn as "quality of life

Baby. jurisprudents”3, has no legal right to live.

Professor Ashley Montagu of Columbia University has put The goal of the "quality of life jurisprudents" is to establish it very succintly“the basic fact is simple: Life begins, not at that the individual does not have an "unalienable" right to life birth, but at conception". 4 The “mystery of life" begins with but that "life" is only possible by the "grace" of the state and husband and wife in the constitutionally protected privacy of that it may be withdrawn when the specific life has lost its the marital bed-thus the beginning of life for a third person. "usefullness" to society.

It is in this instant that the fertilized female egg, which until To establish this unique concept straight out of the being fertilized by a male sperm cell was on its own prophesy for the future of Orwell's 1984 and Huxley's incomplete and even unable to preserve its own existence, in Brave New World the proponents of this future "utopia" the words of Professor Patten, has become the "initiation of chose with care the epitome of the "unpopular client"-who the life of a new individual".5 The future of the new human they felt, possibly not incorrectly, would find few defenders. being has been established by acquiring half of his forty-six Were this inroad upon the vitality of the Constitution chromosomes from his mother and half from his father. successful, a most powerful precedent would have been The conceptus,the new fetus,is now in possession of the established for the proposition that an individual's life may be qualities which begin the somewhat "secret" but sure journey snuffed out at the whim of "Big Brother" while circumventing into the life cycle. The "genetic code" is present within the the safeguards of the Constitution.

labyrinth of the chromosomes which is composed of "genes" The attorney and the jurist who does not rush to the which contain the complex chemical DNA (Deoxyribonucleic defense of the helpless Little Unborn Baby-a client who can Acid) which holds the secret of life and growth.

FOR THE UNBORN BABY ...(cont. from page 8)

In the first weeks the baby's body not only exists-it also functions. The brain in configuration is already like the adult brain and sends out impulses that coordinate the function of the other organs. The brain waves have been noted at forty-three days.6 On an electroencephalogram there is possitive recording of electrical activity the absence of which today is used as the absolute determination of death for its presence signifies LIFE! The heart beats sturdily. The stomach produces digestive juices. The liver manufactures blood cells and the kidney begins to function by extracting uric acid from the child's blood. The muscles of the arms and body can already be set in motion.

A complete medical study of the Little Unborn Baby is beyond the scope of this paper, but the writer would note that from this point until adulthood, when full growth is achieved somewhere between the 25th and 27the year the change in the body will be mainly in dimension and in gradual refinement of the working parts. It is most clear that the doctor of a pregnant woman has two patients before him-the mother and the baby. This is most obvious in the treatment unique for the unborn child-a physician can now give a blood transfusion to the Unborn Baby using a technique developed by Dr. A Liley of New Zealand.

For those who desire visual evidence of the validity of Dr. Liley's statement that the fetus "is ... a tiny human being, as independent as though he were lying in a crib with a blanket wrapped around him instead of his mother"7 the writer would direct attention to the outstanding series of photographs taken by Lennart Nilsson, a Swedish photographer, which record the growing baby. 8

Medical science has demonstrated conclusively that human life begins at conception-and that the child is as much a child in those several days before birth as he is in those several days after. The maturation process, commenced in the womb, continues through the post-natal period, infancy, adolescence, puberity, maturity and old age. With this recognition that life is a continuum-from conception to the grave-the medical inquiry ends and the Constitutional protections afforded the Little Unborn Baby attach.

II. The Unborn Baby-and The Law Possibly no more horrendous philosophy has ever been advocated than the present thought that the Little Unborn Baby is not protected by the basic provisions of the U.S. Constitution-the 5th and 14th Amendments. Specifically the proponents of "abortion on demand"–the "quality of life jurisprudents"-argue that the Unborn Baby's life can be taken without complying with the basic requisites of "due process of law" and that he need not be afforded the "equal protection of the laws".

The primary argument of those advocating the destruction of the Little Unborn Baby is that he is not a "person" therefore the Constitutional safeguards as found in the 5th and 14th Amendments do not attach. Not since the "Negro" was excluded from the protection of the Constitution-for he was not a "person" he was a "slave"-and the "American Indian" was likewise denied the protection of the Constitution-for he

was not a "person" he was a "savage"-has terminology been used to rationalize away what is so clearly unconstitutional conduct.*

That the Unborn Baby is not a "person" is so blatently void of reason and lacks the slightest semblance of truth is evident upon even a cursory examination of the legal status of the Unborn Baby.

The writer would pause here to explain the semantic problems which seem to cause so much difficulty when examining the legal status of the Unborn Baby. The use of the phrase "unborn baby" is perhaps somewhat imprecise but of all terms possible no other is more accurate. For as Mr. Justice Holmes has said "a word is not a crystal, transparent and unchanged, it is the skin of a living thought and may very greatly in color and content according to the circumstances and time in which it is used”.9 The use of terms like "embryo" or "fetus" which may be medically precise, is grammatically awkward since they refer only to specific stages of gestation.10 Words such as "quick" or "viable” are equally unclear since the law's own use of such words reflect little, if any, consistency with current medical practice.11 If the writer's use of the phrase Little Unborn Baby is troublesome and makes one uncomfortable it is perhaps because the reader has not been as realistic as the members of the Judiciary Committee of the Minnesota House of Representatives who found that "abortion involves the taking of a human life". 12

III. Legal Status of the Unborn Baby Medical authority has recognized long since that the child is in existence from the moment of conception, and for many purposes its existence is recognized by the law. The criminal law regards it as a separate entity, and the law of property considers it in being for all purposes which are to its benefit, such as taking by will or descent... All writers who have discussed the problem have joined ... in maintaining that the unborn child in the path of an automobile is as much a person in the street as the mother ... 13

The legal status of the Unborn Baby has thus been summarized by Professor Prosser and its only shortcoming is that it does not reflect the advances of the law since that statement was penned in 1964.

It is not within the scope of this paper to develop the entire spectrum of the evolution of the law as relating to the recognition of the Unborn Baby as a "person", but a few cases of significance will show conclusively that the common law of past judicial decisions have placed the courts in the anomalous position of protecting the legal rights of one, who it is now

One of the anomalies of the "abortion controversy" is to note that "women" who have had difficulty in establishing that they were "persons"-albeit to a lesser degree than the “Negro" and the "Indian"--and entitled to all rights under the Constitution have a segment-the "Women's Lib" gals-who are now "demanding" the "right" to destroy another, or stated another way, on achieving their due rights their first act is to deny to another a right which they always had-the "right to live" - perhaps this is a blatant indictment of the self-centered, non-caring about others, direction in which our Nation is moving.

(continued to page 11)

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FOR THE UNBORN BABY ... (cont from page 10) argued, has no identity. It should be stated that this evolution of attributing greater rights has grown and increased at a pace reflecting the advances of medical science of providing a more complete picture of the unique Little Unborn Baby in his somewhat "secret home". A. Tort Law

The "landmark decision" which upheld the right of recovery for pre-natal injuries was Bombrest v. Katz 65F. Supp. 46 (District of Columbia, 1946) in which the court held:

From the viewpoint of the civil law and the law of property, a child en ventre sa mere is not only regarded as human being, but as such from the moment of conception ... which it is in fact.

The Ohio Supreme Court spoke of the constitutional rights of an unborn baby in Williams v. The Marion Rapid Transit, Inc. 152 Ohio St. 114 (1949). The Court found the unborn baby to be a "person"

If the common law protects the rights of the unborn child and if every intendment in the law is favorable to him, the inference is inevitable that such unborn child is a person even though he is incapable himself to assert them. If the unborn child may not legally be deprived of his life, it is hard to understand how that life may with impunity be totally impaired by the tort of a third person. The Court later stated in the same opinion: To hold that the plaintiff in the instant case did not suffer an injury in her person would require this court to announce that as a matter of law the infant is a part of the mother until birth and has no existence in law until that time. In our view such a ruling would deprive the infant of the right conferred by the Constitution to all persons, by the application of time-worn fiction not founded on fact and within common knowledge untrue and unjustified.

D. International Law
Whereas the child, by reason of his physical and mental
immaturity, needs specific safeguards and care, including
appropriate legal protection, before as well as after birth.

.... Preamble, Declaration of the Rights of the Child

The Little Unborn Baby has not only been recognized by the domestic law of this Nation, but has also been the subject of an international treaty to which the United States is a signatory. The United Nations Declaration of November 20, 1959 clearly states that the Unborn Baby must be protected "before as well as after birth". Those states which permit, with impunity, the taking of the life of the Little Unborn Baby are violating one of the most sacred commitments of this Nation-a treaty!

IV. Individualism and The Sanctity of Life In the "abortion debate" individualsim finds some strange bed-fellows who seize upon that outstanding quality by claiming that anti-abortion laws wrongfully invade the privacy of the individual, of the family and of the physician-patient relationship. By some form of inverse reasoning, which is a mystery to this writer, the "quality of life jurisprudents" argue that it is an invasion of privacy to restrain the hand of one who is about to destroy another. Conspiciously absent from the arguments of those proposing "abortion on demand" is any mention of the Unborn Baby's right of privacy. A. Personal Privacy

The "right of privacy" is a very basic and highly cherished right-however one which is nowhere expressly mentioned in the Constitution or its amendments, but is only found in the "penumbra" of those articles. When the "right of privacy" is attached to an "express" right such as the "right of freedom of religion" a very strong constitutional basis exists for upholding

а the "right"-except when in conflict with the most basic and foundamental of all rights-the "right to life".

The New Jersey Supreme Court was asked to decide just such an issue-a conflict between the mother's privacy and the life of the Unborn Baby. In Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson 14 the issue was whether the rights of a child in utero were violated by his mother's refusal, on religious grounds, to submit to a blood transfusion necessary to preserve the lives of both the mother and the Unborn Baby. The Court's finding favored the right to life of the Unborn Baby over the mother's freedom of religion:

An unborn child, of a woman who did not wish to have blood transfusions for the reason that they were contrary to her religious convictions as a Jehova's Witness, was entitled to the law's protection, and appropriate order would be made to insure blood transfusion to the woman in the event that the physician in charge at the time should determine that blood transfusions were necessary to save the woman's life or

the life of her child. B. Physician-Patient Privacy

The proponents of "abortion on demand" assert that anti-abortion laws unlawfully intrude upon the privacy of the

(continued to page 12)

B. Property Law

In the case of Phillips v. Herron 55 Ohio St. 478 (1896) the court faced the question as to whether an unborn baby was "in being" for the purposes of the statute restricting entailment of real estate. The Court held that "a child in utero at the testators death is in being." C. Inheritance Rights

The question of whether a "non-viable" unborn baby was in existence for inheritance purposes was considered by the Supreme Court of Ohio in Evans v. Anderson 15 Ohio St. 324 (1864). The Court found that a child had a right to inherit from his father who did not know of his existence at the time of his death, saying:

It is doubtless a well-settled rule of law relative to succession, and to most other cases in relation to infants, that a child in ventre sa mere, as to every purpose where it is for the benefit of the child, is to be considered in esse.

W

FOR THE UNBORN BABY ... (cont. from page 11) physician-patient relationship. The fallacy of their argument is that they assume that the doctor caring for a pregnant woman owes an obligation of good medical care to only one patient. The fact of the matter is that the doctor has two patients-the mother and the Unborn Baby! This was the finding of the court in Jones v. Jones 15 which held that the Unborn Baby:

became a patient of the mother's obstetrician, as well as the mother herself. In so holding, I can think of the infant as a third-party beneficiary of the mother-doctor contract or perhaps a principal for whom the mother acted as agent.

The idea that a doctor should be free of legal restraints in making decisions-that he, the doctor, is above the law-has been rejected by the Supreme Court in Barsky v. Bd. of Regents, 347 US 442, at 449 (1954):

It is elemental that a state has broad powers to establish and enforce standards of conduct within its border relative to the health of everyone there. It is a vital part of a state's police power. The state's discretion in that field extends naturally to the regulation of all professions concerned with health ... including medicine.

The role of the doctor in society has been defined by Dr. Viktor E. Frankl as:

[I]t is not the doctor's province to sit in judgment on the value or lack of value of a human life. The task assigned to him by society is solely that of helping wherever he can, and alleviating pain where he must; of healing to the extent that he can, and nursing illness

which is beyond cure. 16 C. Family Privacy

The "right of family privacy" is also a most fundamental right which is most zealously guarded until the conflict involves the right of a person to live. In the case of Gleitman v. Cosgrove 17 the family-Mom, Dad and Little Jeffrey-sought damages from the two doctors who had attended Mrs. Gleitman during her pregancy on the grounds that they had not been advised that Little Jeffrey might be born with "defects" due to the mother's having contracted German measles during her pregnancy. The Gleitman's argued that they were thus deprived of the opportunity to destroy Jeffrey by abortion. The Court, in dismissing the complaint, emphasized the primacy of Little Jeffrey's right to live:

It is basic to the human condition to seek life and hold on to it however heavily burdened. If Jeffrey could have been asked as to whether his life should be snuffed out before his full term of genstation could run its course, our felt intuition of human nature tells us he would almost surely choose life with defects as against no life at all. "For the living there is hope, but for the dead there is none," Theocritus. The right to life is inalienable in our society. We are not faced here with the necessity of balancing the mother's life against that of her child. The sanctity of the single human life is the decisive factor in this suit in tort. Eugenic considerations are not controlling. We are

not talking here about the breeding of prize cattle. It may have been easier for the mother and less expensive for the father to have terminated the life of their child while he was an embryo, but these alleged detriments cannot stand against the preciousness of a single human life to support a remedy in tort. Though we sympathize with the unfortunate situation in which these parents find themselves, we firmly believe the right of their child to live is greater than and precludes their right not to endure emotional and financial injury.

The Gleitman decision illustrates the inappositeness of the Supreme Court decision in Griswold v. Connecticut 18 in the "abortion" controversy. The decision of the Supreme Court in Griswold which is the major contention of the proponents of "abortion on demand" as supporting their position, recognized the right of marital privacy by voiding a statute preventing dissemination of contraceptive information and devices.

The proposition that the decision of the High Court relating to contraception should be extended to protect the "right" of a woman to destroy the product of conception after it has taken place is so ludicrous as not to merit any serious consideration. It is good law that no court should tell a husband and wife what they can do in the privacy of their bedroom to prevent conception-however once conception takes place and a new life has begun there is a new issue which extends beyond the bedroom.

The contraceptive relationship is between the husband and wife-the abortion relationship is between the parents and their child. The Little Unborn Baby changes the entire picture-his interest must then be considered. To equate contraception and abortion is to fly in the face of the basic facts of biology.

The Honorable Judge Don J. Young speaking for the court in the landmark decision of Steinberg et al. v. Rhodes et al. 19 put this debate to rest saying:

(T) he legal conclusions in Griswold as to the rights of individuals to determine without governmental interference whether or not to enter into the process of procreation cannot be extended to cover those situations wherein ... the preliminaries have ended, and new life has begun. Once human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it.

V. Our Legal Structure in Perspective A man's life, like a piece of tapestry is made up of many strands which interwoven make a pattern; to seperate a single one and look at it alone, not only destroys the whole but gives the strand itself a false value. 20

The mother who comes before a court of law, or a legislative assembly, arguing that her "right to privacy" is being violated, when the state acts to restrain her hand which would destroy another, runs counter to the wisdom of Judge Learned Hand and demeans her own existence for if her "life" were not the primary concern of medicine and law she would

(continued to page 13)

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