I stated at the time of introduction that this section was meant to be strictly construed, in order to guard against those unscrupulous practitioners of the medical art who have prostituted their professional judgment and sought to justify abortion for spurious medical reasons. Historically, the maternal life-saving exception has been in American law since the first statutes were enacted in the 1820's. At no time prior to the abortion liberalization movement of the 1960's was such an exception considered to be inconsistent with the status of the unborn child as a legally protected person. Medically, my understanding is that there are few if any instances where an abortion is necessary to save the woman's life. Even so conspicuous a proponent of abortion as Dr. Alan Guttmacher had to acknowledge as late as 1967-and the statement is even truer today-that "it is possible for almost any patient to be brought through pregnancy alive, unless she suffers from a fatal illness such as cancer or leukemia and, if so, abortion would be unlikely to prolong, much less save, life." It should be noted that the maternal life-saving exception is sui generis. The rule of legal necessity, which is essentially the rationale underlying the exception, does not admit of the taking of a human life except as a last resort to save another human life. Dr. G. P. Harrison stated it well in a recent issue of the Journal of the Canadian Medical Association: "If the terms under which abortion is to be legally permitted are not to be concerned solely with those conditions which constitute an immediate threat to the mother's life, then the legal indications change subtly from the preservation of life to the preservation of happiness, and who can best determine what can make her happy but the patient? In other words, if one woman is pregnant and has kidney disease and another is pregnant as a result of some extramarital misadventure, there would be no justification in terms of public benefit for the law to permit the one to preserve her health by abortion and forbid the other to preserve her marriage by the same means." Dr. Harrison's statement provides the context in which the "hard case" (in Justice Holmes' sense of the term) of rape ought to be considered. The probability of pregnancy resulting from rape is, as I understand it, exceedingly small to begin with. I would defer to expert testimony on these points, but it is my further understanding that the small possibility of conception can be reduced even further by the application of immediate therapy. That is why I favor an expansion of those educational efforts which explain to women the desirability of seeking immediate medical treatment following rape and before fertilization can occur, and the establishment of professionally staffed rape-treatment centers to make that treatment more widely available. From a social policy perspective, the question as I see it is whether a medically rare and generally preventable circumstance justifies the creation of an exception which, by its very nature, will open the door to abortions bearing no relation to the intended exception. It is an ironic and recurring aspect of the abortion debate that the proponents of permissive abortion make rape and other hardship cases the major focal point of controversy, thereby diverting attention from the wholesale killing which is the ultimate consequence of the reforms they seek. But any candid examination of the abortion reform movement will demonstrate that the proponents of reform are clearly in pursuit of goals the social and moral implications of which far transcend the problems raised by emotionally diverting hardship cases. Similarly diverting is the argument that liberalized abortion will eliminate the "back-alley" abortionist. Data from foreign countries having far longer experience with legalized abortion than we have had in the U.S.-and I would urge the committee to examine those data carefully on a wide range of matters-suggest that legalization has no effect on the criminal rate. Indeed, it is my understanding that in at least three countries, the criminal rate has actually risen since legalization. Legalized abortion, no doubt, drives many back-alley abortionists out of business; but the evidence suggests rather strongly also that those who are not driven out of business simply move their business out of the back alley into the front office where their sorry trade can be plied without fear of prosecution. Indeed, I am told that a number of people convicted of performing criminal abortions under the old law are now being released from prison. The issue as I see it is not whether there shall be legal or illegal abortions, but whether abortion (either legal or illegal) ought to be considered as a solution to certain problems at all. From a medical perspective, abortion is-contrary to the proponents of legalization-still a high-risk medical procedure. The risk of dangerous infection, of uterine perforation, of subsequent sterility, miscarriage, and birth defects, is substantial. The proponents of abortion work a tragic injustice in not bringing such facts to light, Mr. Chairman, and I would urge the committee to give this matter its most serious attention. In weighing the effects of permissive abortion, I think it important to consider not only those who might otherwise be tempted to seek an illegal abortion, but those whose decisions are affected primarily by the status of the law itself. It is true that some women will seek abortions, just as some doctors will perform them, regardless of what the law says. But I believe that for most women and for most doctors, the attitude of the law is a decisively important, if not the dominant factor in the abortion decision. No law is capable of preventing certain women from seeking and obtaining an abortion. But the tragedy and death which result from their action, both on a personal and a social level, are small when compared to the massive destruction of mind and body, and the demoralizing effect upon the social order, that arise under permissive abortion. I wish, Mr. Chairman, that there were some way to insure that every child would be a wanted child, just as I wish that there were some way to insure that every child would be perfectly healthy. Unfortunately, such guarantees are beyond our grasp, and so long as they remain thus, I think we ought to consider some alternatives other than the killing of children as a way out of the perennial and universal dilemma of the unwanted or imperfect child. Indeed, one of the worst consequences of permissive abortion is that it encourages women (and men, for that matter) to think of abortion as some sort of "final" solution to a problem that is likely to repeat itself again and again, during every month of a fertile woman's life. The same difficulties which may prompt a woman not to want a child in March will still exist in April and in May and so on, unless she is sterilized (which may very well happen following multiple abortions) or until she reaches menopause. The "problem", in short, to which abortion is presented as an easy and allegedly safe “solution”, is not a one-time thing. I am therefore puzzled when proponents of abortion advance their proposals with such enthusiasm. Do they propose that abortion is always a "way out", or only the first time? If they choose the former alternative, they will have to answer the nasty mental and physical effects of multiple abortions. And if the latter alternative is chosen, it seems to me that they owe us an explanation as to why the same means that would be used to prevent multiple abortions could not, with some effort, also be used to prevent the first one. Mr. Chairman, I know there are others who wish to testify this morning, so with your leave, I would like to conclude by offering some suggestions as to the kind of issues that your future hearings ought properly to embrace. I make these recommendations because over the course of the past year or so, I have found that the abortion controversy must be understood in perspective, or it will not be understood at all. Let me provide you with but one example that will illustrate my point. It is frequently argued that abortion is uniquely a woman's issue, and that therefore the core question is preeminently one of a woman's "right to privacy". But I have never heard, Mr. Chairman, in all the discussion that has taken place under this rubric, a satisfactory answer from the proponents of abortion as to when it is that the right to privacy attaches to the unborn child. Nor have I heard a satisfactory answer to the question as to what, precisely, the pregnant woman's right to privacy consists in. Is it a right merely not to carry a child that one has already conceived? Or is it the right to kill the child that one is bearing? One answer to this question was provided last year in testimony before the Criminal Laws Subcommittee, at which the distinguished Senator from Nebraska was present. Questioned by counsel on this point, Dr. Alan Guttmacher of Planned Parenthood replied that the right to privacy embraced the right to kill, because legalized abortion is designed not only to assist women, but to protect society's "quality of life" from being disturbed by such problems as "unwanted" children. The killing of the child, he concluded, ought to be done, in his words, "for the good of the child". That answer, which has at least the virtue of bluntness, suggests to me and to all who share my concern with this issue, that the abortion debate is far more than a subsidiary topic under the general category of women's liberation. And I would hope that the members of this committee would share my alarm at the implications of Dr. Guttmacher's statement. With that by way of background, let me therefore submit for your consideration the following topics for examination at subsequent hearings. Legal Issues The legal status of the unborn child prior to and after the recent period of liberalized abortion; The intention of the framers of the 14th Amendment regarding the protection of human life and the meaning of legal "personhood"; The purpose, history, and interpretation of 19th and 20th century legislative restrictions on abortion; Analysis of the Court's opinions in Wade and Bolton, including their implications in areas other than elective abortion; The origins and limitations of the "right to privacy"; The nature and limitations of the state's "compelling interest" in maternal life and health; Analysis of differing constitutional proposals especially the difference between an essentially "states' rights" approach and a Human Life amendment. Medical Issues The scientific and medical importance of the discovery of conception in the early 19th century; The attitude of the medical profession toward abortion prior to the modern period of liberalization; Who is the fetus?: the genetic, biological, and physiological nature of the unborn child from conception onwards; The various techniques of abortion; The alleged medical and psychological indications for abortion; The medical and psychological consequences of abortion, including the effect of abortion on subsequent pregnancies; Foreign experience with abortion; The impact of liberalized abortion on hospitals, doctors, subsidiary medical personnel, and medical students. Social Ethics and Related Public Policy Issues The emergence of a "new ethic" in which the presumed sanctity of individual existence is subordinated to a bureaucratic or medical determination as to its "quality"; The social and cultural consequences of abortion-on-request; The relationship between abortion and infanticide, between abortion and euthanasia generally. This list of suggested topics is by no means exhaustive, but it can provide a framework in which the consequences of Roe v. Wade and Doe v. Bolton can be seen and understood in all their grisly detail. The issue before the Senate and the nation is whether this country is going to tolerate the continuation of killing for sake of social convenience, or whether it is going to restore legal protection to all human beings, born or unborn, whose lives have been endangered by those unfortunate decisions. I know that this committee will give this issue its most serious attention, granting to all-including the unborn— a full and fair hearing. ABORTION AND THE CONSTITUTION: AN EXAMINATION OF THE PROPOSED ANTI-ABORTION AMENDMENTS (To appear in Rutgers (Camden) Law Journal, No. 73, Spring 1976) The authors wish to express their deepest thanks to Professor I. INTRODUCTION In January 1973, the Supreme Court handed down two decisions radically changing the legal status of abortion in the United States. In the companion cases of Roe v. Wade1 and Doe v. Bolton2 the Court confronted the basic constitutional issue: how far can the state intrude into the decision of a woman and her physician as to whether she should have an abortion? At the time Roe and Doe were decided, states' intrusion was deep and pervasive. Most 1 410 TT.S. 113 (1973). 2 410 U.S. 179 (1973). states took the decision out of the hands of women and their physicians by forbidding abortion outright except in rare cases. Legal abortions were surrounded by procedural restrictions. The Texas statute, struck down in Roe, was typical of the majority of state laws and banned all abortions except those necessary to save the life of a pregnant woman. The Georgia statute under review in Doe was similar to laws in thirteen other states. It was patterned after the American Law Institute's Model Penal Code and permitted abortions only to preserve the health of a pregnant woman and to prevent the birth of badly deformed infants and infants conceived by rape. Recognizing that the constitutional rights to privacy protects the decision of a woman and her physician that she should have an abortion, the Supreme Court placed severe restraints on state interference with that decision. Only a compelling state interest, the Court concluded, could justify state interference in this private reproductive choice. In Roe, the strength of the interests asserted by Texas at various stages of pregnancy was assessed. The state's interest in maternal health is legitimate, the Court held, but not compelling until the second trimester when the medical dangers of abortion begin to rival those of childbirth. Even then such interest is not sufficient to justify the prohibition of abortion, but only to permit regulations which would demonstrably protect interests in maternal health. The state's interest in potential life is also compelling, but only at the point when the fetus is capable of surviving outside the uterus. In the companion case, Doe v. Bolton, the Court considered procedural restrictions state law had placed on abortions. Georgia law provided that: (1) abortions must be performed in a hospital approved by the Joint Commission on the Accreditation of Hospitals; (2) abortions must be approved in advance by the hospital's abortion committee and (3) the need for an abortion must be confirmed by two physicians besides the woman's own doctor. The Court found each of these restrictions unconstitutional. Б The Supreme Court's resolution of the abortion controversy stirred deep emotions and engendered strong opposition. Abortion opponents immediately proposed constitutional amendments to overrule Roe and Doe. This is a common reaction from the losing side when the resolution of constitutional issues touches questions of fundamental belief and deep emotion. It was the response to cases like Engle v. Vitale and Abington School District v. Schempp, barring Bible reading and prayer from public school classrooms; Baker v. Carr requiring states to draw the lines of voting districts to give equal weight to each person's vote; and Swann v. Charlotte-Mecklenburg Board of Education, approving various devices for making the promise of school desegregation a reality. The logic which compels this response is simple: if the Supreme Court has made an untenable decision based on what the Constitution says, the most obvious solution is to change the Constitution. This at once overrules the Supreme Court and settles the merits of the question. 7 Three Congressional opponents of choice with respect to abortion, Senators Helms and Buckley and Representative Whitehurst, have introduced constitutional amendments since Roe and Doe were decided. The Helms amendment 10 is the most complete repudiation of the Supreme Court's decisions. The intent of the amendment is not only to override Roe and Doe, but to ban abortions altogether. Before Roe and Doe, states were free to permit choice with respect to abortion or not. New York, Washington, Alaska, and Hawaii had passed abortion reform laws allowing women wide latitude in reproductive choice.11 The intention of the Helms amendment is to take control of abortion away from the states, as well as from individual women and physicians, and to replace it with a single federal law. The amendment reads: 8 370 U.S. 421 (1962). 4 374 U.S. 203 (1963). 5 Senate Fails to Amend School Prayer Ruling, 22 Cong. Quarterly Almanac 512 (1966). 6 308 U.S. 186 (1962). 7 Fordham. The State Federal System: Vital Role or Limbo? 49 Va. L. Rev. 66 (1963) and Monroe, To Preserve the United States: A Brief for the Negative on Three Current Plans to Amend the Constitution, 8 St. Louis U.L.J. 533 (1964). 8 402 U.S. 1 (1971). • Constitutional Scholars_Comment on Busing Amendment to the Constitution, 118 Cong. Rec. E1301 (daily ed. Feb. 18, 1972). 10 S.J. Res. 6, 94th Cong., 1st Sess. (1975). 11 NY Penal Code, sec. 125.05, subd. 3 (Supp. 1972-1973): Wash. Rev. Code, secs. 9.02.060 to 9.02.080 (Supp. 1972); Alaska Stat. sec. 11.15.060 (1970); and Haw. Rev. Stat. secs. 453-16 (Supp. 1971). "Section 1. With respect to the right to life guaranteed in this Constitution, every human being, subject to the jurisdiction of the United States, or of any State, shall be deemed, from the moment of fertilization, to be a person and entitled to the right to life. "Section 2. Congress and the several States shall have concurrent power to enforce this article by appropriate legislation." Senator Buckley has introduced two amendments.12 Their major thrust is similar to that of the Helms amendment: to take from states as well as women and physicians, control over abortion, and to enact a broad national ban on abortions except when the life of a woman is endangered by pregnancy or childbirth. The first one reads: 13 "Section 1. With respect to the right to life, the word 'person,' as used in this article and in the fifth and fourteenth articles of amendment to the Constitution of the United States, applies to all human beings, including their unborn offspring at every stage of their biological development, irrespective of age, health, function, or condition of dependency. "Section 2. This article shall not apply in an emergency when a reasonable medical certainty exists that continuation of pregnancy will cause the death of the mother. "Section 3. Congress and the several States shall have power to enforce this article by appropriate legislation within their respective jurisdictions." The only difference in the second Buckley amendment " is the wording of the second section's exception to save the life of the pregnant woman: "Section 2. No unborn person shall be deprived of life by any person: Provided, however, that nothing in this article shall prohibit a law permitting only those medical procedures required to prevent the death of the mother." The third type of amendment, introduced by Representative Whitehurst,15 takes a different and apparently less radical tack. Once again its purpose is to overrule the direct holdings in Roe and Doe by allowing governmental intrusion into private abortion decisions. However, the intent is not to freeze abortion law in a single constitutional pronouncement but to turn the clock back to the days of state control prior to Roe and Doe. The Whitehurst amendment says. "Section 1. Nothing in this Constitution shall bar any State or territory or the District of Columbia, with regard to any area over which it has jurisdiction, from allowing, regulating, or prohibiting the practice of abortion." Anti-abortion legislators have made clear their intention to limit the right to choice with respect to abortion. Because of the Constitutional underpinnings of Roe and Doe, however, they are forced to turn to the amendment process. Amending the Constitution, however, is far more serious than enacting ordinary legislation. First, an amendment repeals inconsistent portions of the existing Constitution. Thus, any proposed amendment must be examined to determine its impact on the Constitution's present structure and content. Second, an amendment, like the rest of the Constitution, creates supreme law with unique permanence: once ratified, it supersedes all federal and state law and remains in effect as long as one-quarter of the states oppose change." For these reasons, the proposed amendments must be carefully scrutinized to determine precisely the principles which will thus be elevated to such a position of supremacy and permanence.' 18 16 On close examination, these anti-abortion amendments raise disturbing questions. Their effect on the existing Constitution will be grave, since they necessarily work to repeal some of the Constitution's traditional guarantees of personal liberty. In addition, the Helms and Buckley amendments present textual difficulties. These difficulties are so substantial that after months of 12 S.J. Res. 10, 94th Cong., 1st Sess. (1975) and S.J. 11, 94th Cong., 1st Sess. (1975). 13 S.J. Res. 10, supra note 12. 14 S.J. Res. 11, supra note 12. 15 S.J. Res. 96, 94th Cong., 1st Sess. (1975). 16 U.S. Const. art. VI. 17 U.S. Const. art. V. 18 For application of such an analysis to the proposed Equal Rights Amendment, see the companion articles, Dorsen and Ross, The Necessity of a Constitutional Amendment, 6 Harv. Civ. Lib. L. Rev. 216 (1971), and Emerson, In Support of the Equal Rights Amendment, Id. at 225. See Appellants' arguments in The National Prohibition Cases, 253 U.S. 350 (1920). |