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In this report the Civil Rights Commission advises that these proposals to outlaw abortion by constitutional amendment would undermine the First, Ninth and Fourteenth Amendments of our Constitution and would, as well, cause chaos in our tort, property, taxation and criminal law. Further these proposals would discriminate cruelly against poor women.
These amendment proposals before you would not stop abortion,—they would only make abortion illegal, expensive and dangerous. Such amendments in making abortion inaccessible would discriminate not only against poor women, but against poor children as well. Women of means for well over 50 years have been able to obtain safe abortions. Now, with the improvements in medical science, an early abortion is 8 to 10 times safer than child-birth or tonsillectomy,even mid-term abortion is a little safer than child-birth. A reprint from Science by the Institute of Medicine on abortion and women's health is attached.
In regard to those who advocate the limitation of the right to choose abortion under circumstances which are not related to a woman's health, Mr. Justice Blackmun in writing the Doe v. Bolton, the Georgia part of the decisions, explains carefully the injustice which would follow such attempts; this part of the ruling makes clear that a "middle ground" between choice and arbitrary restriction to choice cannot be arrived at logically or fairly. Mr. Justice Blackmun who wrote the majority opinion for the Court was eminently qualified since he had previously been legal counsel to the Mayo Clinic.
We view with alarm the recently introduced bill by our own Pennsylvania Congressman Edwin Eshleman, H.J. 485: "no human fetus shall be aborted after its heart begins to beat except when life of the mother is endangered unless that abortion takes place." We regard this as a compromise attempt which would create an impossible-to-determine “grey area" in gestation time when abortion might or might not be permitted. No law can be this imprecise! This also could be interpreted as a means of defining death. Surely medical terminology which changes with medical progress should not be incorporated into our constitution.
The "states' rights” proposals either of the Whitehurst, H.J. Res. 438 or the "Noonan” type, H.J. Res. 681 (Sullivan) would not only add an amendment to our constitution which would undermine the First, Ninth and Fourteenth Amendments, but would permit the States to place varying interpretations on our Federal Constitution. And if some states were allowed to prohibit abortion, the result again would be felt by the poor, those women who would be most likely to need abortion, but who would be unable to travel to distant places where legal abortion would be safely available.
You have before this Subcommittee a constitutional issue upon which honest men and women of many religious faiths differ. Please do not change our constitution to incorporate into it the religious precepts of less than the majority of our citizens. This would not only be unjust, but the ramifications in our criminal and civil law would be horrendous. Imagine, if you will, the dilemma which would be faced by a physician whose patient is threatened with a spontaneous miscarriage. To treat her he would be running the risk of prosecution for abortion. And, imagine the plight of the woman who could not find a doctor to care for her, because of the doctors' fears of criminal prosecution !
Please do not lead this country into another “Prohibition Era" similar to the 1920's and early 1930's—a time when crime thrived on the Eighteenth Amendment.
ABORTION STATEMENT OF THE AMERICAN ASSOCIATION OF UNIVERSITY WOMEN
The American Association of University Women (AAUW), founded in 1882 as the first association of college and university educated women in the world, has a membership of 193,000 women organized in 1819 branches in all fifty states, the District of Columbia, Guam, Puerto Rico and the Virgin Islands. Since its beginnings the Association has worked actively in support of the rights of women, the rights of minorities, the rights of all people. Very early in this century AAUW's legislative and community work began to expand beyond the issues of educational opportunity and access to the professions as Association members came to realize that a woman's success in academia and in the professional world could not be separated from other issues as well, for example, health concerns, individual rights. In the 1930's AAUW took a stand in support of making contraceptive information available. Continuously since then the Association has supported the need for family planning, health education and contraceptive re
search. Also since the 1940's the Association has taken an official position in support of the civil rights of the individual and has worked in support of major civil rights legislation.
Thus AAUW members in the early 1960's moved naturally into work on liberalizing restrictive abortion laws. In 1970 the AAUW Hawaii Division spearheaded a drive to repeal the state's restrictive abortion laws. Since 19.1 AAUW has had a national stand in support of a woman's right to choose abortion. Prior to 1973 the Association fought in state legislatures for abortion law repeal, and joined in a friend-of-the-court brief with other organizations in a suit to challenge the Georgia and Texas abortion laws which had been selected to go before the Supreme Court. Since the 1913 Supreme Court decision, AAUW members across the country have worked to oppose the various attempts to weaken or overturn that ruling. In recent months AAUW members wrote in opposition to and lobbied against the Helms Amendment to the Foreign Assistance Act of 1975 which would have forbidden the use of monies for abortion and abortion research. Most recently an AAUW Issues Conference held in February 1976 on strategies for improving women's role in society, included in its conference plan of action an item for support of safe available legal abortions. (The policy-making board of AAUW's legislative program voted in March 1976 to reaffirm the right-to-choice issue as a top national priority.) Today the Association would like to voice its opposition to any attempts to restrict the freedom of choice of abortion by means of a constitutional amendment.
AAUW believes that every individual should have the right to make the private decision to have or not have a child and that that decision is a constitutional right. The Roe v. Wade decision was based on the Supreme Court's conclusion that there is a fundamental constitutionally guaranteed right to privacy
which is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. In addition the Court opinion stated that laws limiting abortion operated to deprive pregnant women of liberties guaranteed them by the fourteenth amendment."
The AAUW supports the view of the highest court in the nation that an individual's choice of abortion as a means of terminating a pregnancy is the private decision of that individual. We advocate the accessibility of all the various means of contraception and the availability of a full range of information so that the woman of childbearing age may make the decision to have a child, to avoid pregnancy, or, in the event that all fails, to terminate a pregnancy; and that that decision be based on consideration of the fullest possible amount of information and available alternatives. The Association's right-to-choice stand is based on the concept of an educated choice made with the full range of information and the full range of options open.”
As advocates of freedom of choice, the Association understands and has great respect for the position of those Americans who personally feel abortion is wrong. However, we also understand and respect those individuals who feel they can freely choose abortion and accept the responsibility for that choice. The law as it stands does not force a point of view on any individual ; it simply allows an individual the opportunity to freely accept or reject abortion as an alternative. On the other hand, changing the law so as to restrict that freedom of choice to any extent would force one particular moral viewpoint on everyone. (It is significant to note here that a 1972 Gallup poll showed that 64% of Americans feel abortion is a decision of individual conscience.)? The law as it stands does not force anyone to act against his/her conscience.
Those who strongly oppose abortion on moral and religious grounds do have the right and the responsibility to "educate" the public to their viewpoint, so that each individual will exercise his/her right to choice with all the information available-medical, social and moral considerations. It is a revealingly contradictory stance, and a shirking of moral responsibility on the part of those who are opposed to abortion to work to legally remove abortion as a possible choice rather than to work to educate the public as to why they see abortion as the wrong choice. Rather than grapple with the real issue—the attitude of American citizens toward abortion as one means of terminating pregnancy, those opposed to
1 National Academy of Science. Institute of Medicine, Legalized Abortion and the Public Health, (Washington, D.C. May 1975), pp. 128-130.
? See Hearings before Subcommittee on Constitutional Amendments of Committee on the Judiciary. (Washington, D.C. 1975), p. 704.
3 See National Abortion Rights Action League, Abortion: Questions and Answers, (pamphlet).
abortion prefer to take the short cut of simply removing abortion as a choice altogether, thus limiting the freedom of all American citizens.
The U.S. Civil Rights Commission, studying the Constitutional Aspects of the Right to Limit Childbearing (April 1975) concluded that an anti-abortion constitutional amendment would, in effect, advance one particular religious viewpoint. The Commission's study based the constitutional right-to-choice in the first and ninth amendments as well as on the fourteenth amendment argument advanced by the Supreme Court in its 1973 decision.“ AAUW agrees with the Commission that since there is no wholly secular reason for restricting abortion an anti-abortion amendment would compel women to conform to a particular religious tenet rather than allowing the woman to make the decision herself. In reference to the ninth amendment right, which provides for freedom of conscience in areas not specifically named in the Bill of Rights, the Commission pointed out that the freedom to abort existed for women at the time the Bill of Rights was written.
The 1973 Supreme Court decision on the right-to-choice of abortion is grounded in the rights provided by the constitution. In the Association's view, to amend the constitution to abridge the right-to-choose abortion would be both detrimental and contradictory. The Supreme Court decision does point out that the right of the pregnant woman is not absolute; while the state cannot override that right without compelling reason, it does have compelling interests in protecting the health of the pregnant woman and in protecting the "potentiality of life.” 6 In other words, the law as it now stands recognizes the state's interest in protecting the potential life and allows to the state the possibility of protecting that interest by restricting abortion in the final stages of pregnancy.
The law permits the possibility of choosing abortion as one alternative among many under conditions which have proved to be far safer and more "life-supporting” than heretofore. The statistics show that nationwide legislation of abortion has significantly saved lives. According to facts gathered by the Center for Disease Control of the U.S. Public Health Service, the number of deaths caused by abortion fell from more than 300 a year in the 1960's to 47 in 1973 after legalization. (Maternal mortality in general has dropped from 30 deaths per 100,000 live deliveries in 1958–1962 to 14 deaths per 100,000 live deliveries in 1973." These statistics would indicate that women who would have died in pregnancy and childbirth are seeking abortions as a means of saving their lives.)
In summary, AAUW views an anti-abortion constitutional amendment as highly detrimental. It would restrict fundamental constitutional first, ninth and fourteenth amendment rights; it would legislate one religious viewpoint held by a minority of Americans; it would not stop individuals from having abortions but would surely undermine the safe conditions and high medical standards that accompany legal abortion.
AAUW subscribes to the opinion of the U.S. Civil Rights Commission that enacting a states' rights constitutional amendment permitting states to outlaw a civil right recognized by the Supreme Court could establish a pattern for resurgence of discriminatory state action masquerading as manifestations of state sovereignty. It is interesting to note that even now, with the existing law that establishes a uniform code throughout the states, recent studies show that abortions are not equally available from state to state. In 1973 less than one-third of the need was met in 36 states in which three-fifths of U.S. women in need of abortion live. In order to attain legal abortions women who lived in states which met a small proportion of the need apparently had to travel to states which met a large proportion of the need. It seems clear that a states' rights amendment would allow a situation to exist where some citizens of the United States would be able to exercise a fundamental right and others would not. Ultimately a states' rights constitutional amendment would have as harmful an effect as an amendment overturning the Supreme Court decision.
The AAUW, and all citizens who cherish their constitutional rights, look to our leaders in Congress to make the responsible decisions concerning the right of an individual to choose to bear a child, and to oppose any attempts to restrict that right by means of a constitutional amendment.
* U.S. Civil Rights Commission, Constitutional Aspects of the Right to Limit Childbearing (Washington, D.C. April 1975).
6 410 U.S. 113, at 114 (1973).
• Harriet F. Pilpel and others. Abortion: Public Issue, Private Decision (Public Affairs Pamphlet No. 527, September 1975). pp. 26-27.
7 National Center for Health Statistics, Annual Vital Statistics Summary-Cause of Death, Annual Reports 1958-1974. 8 Civil Rights Commission, Constitutional Aspects.
The Alan Guttmacher Institute, Provisional Estimates of Abortion Need and Services in the Year Following the 1973 Supreme Court Decision (New York 1975), p. 9.
STATEMENT OF WISCONSIN CITIZENS CONCERNED FOR LIFE
(Prepared by David Keyser, Vice President) The Wisconsin Citizens Concerned for Life, 4945 West Fond du Lac Avenue, Milwaukee, Wiscunsin, has several thousand members and twenty-five local chapters in various communities in Wisconsin. 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 of the 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; 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 : "Offenses 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 pro
duced, be deemed guilty of manslaughter in the second degree." In 1858 these two sections were revised only by 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 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 not be referring to the Wisconsin law since it is self-evident that its purpose was to protect the embryo and fetus. The Court also stated,
“... The word 'person'as used in the 14th Amendment, does not include the unborn." We contend this is only a gratuitous statement with only specious reasoning to back it up. It should have said, "The word person as we use it does not include the unborn.”
The only logical conclusion one can draw from the court's statement is that the House and Senate and the legislatures of the several states intended by the adoption and ratification of the 14th Amendment to abolish the abortion laws of the various states. This inconsistency in the court's decision was clearly shown by Justice Rehnquist in his dissent in the Wade case.
There can be no question that the Wisconsin legislature with a law on the books declaring the destruction of an unborn child to be manslaughter in the second degree had no intention of revoking that law when it ratified the 14th Amendment.
Independent of the abortion laws Wisconsin has also shown its concern for the unborn child in its welfare laws. Sec. 46.03 (7) of the Wisconsin Statutes on Children and Youth imposes on the State Department of Health and Social Services the following duty :
“(b) When notified of the birth or expected birth of a child born or likely to be born out of wedlock, see to it (through advice and assistance to the mother and independently) that the interests of the child are safeguarded, that steps are taken to establish its paternity and that there is secured for the child (as near as possible) the care, support and education that would be given if legitimate.” This statute indicates a clear obligation of the state to safeguard the life of an unborn illegitimate child, and not aid or abet the extermination of the child. And that duty is not any recent innovation, but is traceable all the way back to the time Wisconsin was a part of Michigan territory (see Laws of Michigan, 1833, “Support and Maintenance of Illegitimate Children," Sec. 1, pp. 335, 336).
The Wisconsin Supreme Court has also protected the unborn child.