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society need not suffer the heartbreak of having children with Tay-Sachs disease, a disease peculiar to Jews and Eastern European extraction, and other detectible and serious genetic diseases. Under the proposed amendments, those persons who carry traits for such diseases and older women who are more likely to produce mongoloid babies, would be seriously inhibited from trying to have children at all, since it would no longer be legal for them to make use of the means which are now available to help them insure that they bear only healthy babies.
VI. THE PROPOSED AMENDMENTS WOULD HAVE A GREATER ADVERSE IMPACT ON POOR
WOMEN THAN ON RICH WOMEN
Anti-abortion amendments would have the effect of discriminating against the poor. Those with means will always be in a position to pay for abortions performed by doctors-legally or illegally. Those who do not have the means will run the risk of death or serious permanent injury as a result of ministrations of charlatans. It is naive to assume that it is any more possible to end abortions through enactment of a constitutional amendment than it was to stem the flow of liquor through prohibitions. In both cases, all we can hope to accomplish is to increase the difficulty of obtaining the desired commodity. With reference to abortion, this procedure places an unjustified burden on the economically depressed, who are in no position to go to Europe or the Caribbean to obtain legal abortions.
VII. THE PROPOSED AMENDMENTS WOULD WORK DRASTIC CHANGES IN MANY ASPECTS
OF OUR LEGAL SYSTEM
A major problem with the proposed amendments is that, by fixing the beginning of life at fertilization or at the earliest stages of biological development, they would produce harmful and even absurd results in other areas of the law. These amendments would cause insurmountable problems in areas of torts, property, tax and criminal law. A. Tort Laro
In tort law, presently, most states provide that recovery for a fetal injury can only take place when it has "quickened” or become “viable" and when the fetus is born alive. Constitutional Aspects of the Right to Limit Child Bearing, Report of the U.S. Commission on Civil Rights (April 1975), at 87; Roe v. Wade, supra, 410 U.S. at 161-2.
If the proposed amendments are enacted, a fetus (or its representative) could recover from a smoking mother, one who took drugs (perbaps for her own health), ate non-nutritious food, or had an automobile accident. Moreover, a doctor who performed an abortion because of his belief that it was necessary to save the mother's life could be second-guessed by a jury in a wrongful death action brought by the fetus's representative. B. Property Laro
It is probably not possible to predict all the ways in which the proposed amendments would affect property rights under federal and state laws. At least one effect may be suggested.
Under existing law, a fetus can inherit property but only if it is born alive. On its subsequent death, the property passes to its heirs. If, however, “personhood" attaches at the moment of conception, a miscarried fetus would inherit property and it would pass to its heirs. Considering that 15 to 25 percent of all pregnancies terminate naturally, the confusion from such a change in our estate laws would be endless.
This problem could not be circumvented by changes in the laws of intestacy excluding fetuses from inheritance. The amendments would presumably bar such "discrimination.” C. Tax and Revenue Laws
Only "persons" are now treated as "dependents" under the federal income tax laws and most state laws. If fetuses were to be regarded as "persons," they would have to be treated as dependents under these laws. A fetus conceived during one calendar year and miscarried during the next could be claimed as a deduction in both years. The extensive fraud that this would invite could be prevented only by equally extensive invasions of privacy. 72-889—76pt.
D. Criminal Law
By declaring a fetus a person, these amendments would raise innumerable doubts about the interpretation of the penal law. For example, a person who had caused a miscarriage by carelessly or recklessly injuring a pregnant woman could be charged with murder. Imprisoning a pregnant woman would be tantamount to imprisonment of a person (the fetus) without due process. Finally, using birth control devices such as intrauterine devices, morning-after pills, etc. might be deemed murderous acts. Again, enforcement would be highly intrusive upon privacy.
CONCLUSION For the reasons stated above, the American Jewish Congress urges this Subcommittee to disapprove any proposals that may be made to amend the Constitution so as to prohibit abortion or otherwise impair the validity of the Supreme Court's ruling in Roe v. Wade and Doe v. Bolton.
STATEMENT OF JEWISH COMMUNITY COUNCIL OF GREATER WASHINGTON ON
PROPOSED CONSTITUTIONAL AMENDMENTS CONCERNING ABORTION Jewish teaching and tradition place the highest value on the sanctity of all human life and a very high value on the potential for human life of an as-yet unborn fetus. However, in all expressions in the mainstream of Judasim, past and present, the life and health of the mother are on a higher level of sanctity than the fetus can attain before birth. Consequently, any conflict between the well-being of the fetus and the life or health of the mother must be resolved in favor of the mother.
Those who find abortion unacceptable as a matter of religious conviction or conscience are free to hold and live by their beliefs, but should not seek to impose such beliefs, by government action, on others. The determination of justifiable circumstances for an abortion is a moral decision to be made by the individual on the basis of value system and heritage, in light of such consultations as appear appropriate to such individual. We oppose, therefore, all current attempts by Constitutional Amendment that authorize the Federal government or state governments to limit the rights of individuals to decide to continue or to terminate a pregnancy.
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE STATEMENT ON
ABORTION, MARCH 2, 1976
Unquestionably all Americans of whatever religious, philosophical or political persuasion have a right, acting as individuals or through organizations, to influence public policy. All churches and religious bodies have a right, indeed a duty, to teach moral and ethical distinctives to their adherents. These two rights cannot be constitutionally abridged.
However, no religious body or bodies may use the civil laws to enforce one particular theological view on the entire citizenry. The imposition of one theological viewpoint on all Americans would abrogate the religious liberty of those millions, the vast majority in fact, who do not subscribe to it.
Abortion is one of the most complex ethical and moral questions confronting contemporary men and women. It is safe to say that no consensus has even been reached throughout the long history of civilization on the question of the origin of life or personhood. Theologians and philosophers have grappled with abortion for centuries, but no consensus has ever been approached.
When there is such a multiplicity and plurality of opinion on such a sensitive issue as abortion, it behooves the drafters of civil legislation to estabilsh laws that are flexible enough to encompass the many opinions. The U.S. Supreme Court wisely decided in January 1973 that abortion should be a matter of individual conscience, not subject to the vagaries of inconsistent state laws or applications of those laws. It allowed for a maximum degree of freedom of conscience. The decision was a wise one and should be preserved, for it respects the autonomy of the human conscience.
However, the nation's largest and most politically powerful religious body, the Roman Catholic Church, regarded the decision as an abomination and has worked unceasingly to repeal it through the constitutional amendment process. The 275 Catholic bishops approved in November 1975 a "pastoral plan" for a
sweeping educational and political campaign to outlaw abortion by constitutional amendment. At all levels, the institutional church is seeking to build an antiabortion lobby in every congressional district of the U.S. This plan coincides with a 1965 Vatican declaration that all abortion, even the therapeutic kind designed to save the mother's life, is illicit and must be prohibited by law. As recently as February 26, 1976, the official Vatican journal L' osservatore Romano condemned all nations which allow abortion, claiming that they have lost their right to exist as legitimate political entities.
It is clear to us and our 130,000 members. representing many religious positions, that the Roman Catholic hierarchy's objective threatens the very existence of religious liberty in this land. If they ultimately succeed, religious freedom will have died in the land that gave it birth. In this Bicentennial year we urge that you reaffirm and preserve our civil and religious liberties by rejecting all proposed anti-abortion constitutional amendments.
[From Commonweal, May 31, 1974)
PROTECTING THE UNBORN
(By Paul Ramsey ?)
HOW DO WE AS A PEOPLE DETERMINE THE OUTER LIMITS OF HUMAN COMMUNITY ?
Generally I am not a social activist. Never before have I knowingly testified before a Congressional committee. I came here today because of what I regard as the deep significance of the issue before you, and the seriousness of this hour in the moral history of this nation-indeed, of mankind.
I am here as a private individual who on January 22, 1973, was robbed of his right as a citizen to participate in the public processes by which we as a people determine the outer limits of human community--the limit at the first of life and soon it may also be the limit at the end of life within which boundaries an equal justice and equal protectability should prevail for all who bear the agreed “signs of life.”
These are judgments about the best factual evidence. Physicians are our deputies in applying the criteria for stating that a man has died; but they alone do not set the criteria. In the unlikely event that physicians began to allow people to die all the way through to the end of cellular life (until hair and nails stopped growing) we would find ways of telling them that is not what we mean by the difference between a still living human being and a corpse. I hope we would do the same in the (more likely) event that physicians began to declare people dead not on the basis of brain-stem death (the current "up-dating”), but when there is only cessation or destruction of the higher cortical functions of the brain (thus certifying as corpses for burial or for organ donation bodies whose hearts still are beating spontaneously and naturally without any external support-system.)
So we have legislation or case-law based on it, wise or unwise, traditional or novel, defining death. This legitimates or deputizes physician declarations of death. Professor Alexander M. Capron of the University of Pennsylvania Law School has recently summarized the need for and the propriety of a societal function in regard to new proposals for updating the critertia for death which physicians apply (“To Decide What Death Means," The New York Times, News of the Week, Feb. 24, 1974).
BETWEEN DOCTOR AND PATIENT
Now suppose the Supreme Court were to rule that determining the outer limit of the human community short of which there exists a right to life still resident in the dying is a matter falling strictly within the privacy of the doctor-patient relation, or is even to be decided by physician and family members. On this supposition the State legislatures could limit what physicians do in making life and death decisions only by licensure. Would the Court decision not be deemed an exercise of “raw judicial power"? Would there not be need for a constitutional amendment to restore the setting of criteria to our public and legislative processes? The deputyship of physicians or of any single individual or group of individuals does not extend to fixing the criteria for determining who shall or shall not be deemed a subject of rights. That surely is the people's business. While saying it did not settle that issue, the Supreme Court did just that-all the while proclaiming that when individual human life begins is a murky theological question. For all practical purposes the Court pronounced that no one enters the human community nor has any rights due him until viability. Questionable as that may be, it at least has the virtue of being based on an implicit claim to possess the best factual evidence in the light of modern knowledge. But behind that is, for me, the monstrous claim that the Court decides such matters.
1 Paul Ramsey is a Methodist layman and Harrington Spear Paine Professor of Religion at Princeton University. He is one of the few non-professionals elected to membership in the Institute of Medicine of the National Academy of Sciences. Among his publications in the area of medical ethics are "Fabricated Man: The Ethics of Genetic Control" and "The Patient as Person: Explorations in Medical Ethics." He is past president of the American Society on Christian Ethics and former president of the American Theological Society. This article is based on written testimony recently presented to the subcommittee of the Senate Judiciary Committee holding bearings on the various abortion amendments.
To restore to political and legislative decision-making processes the power to draw an agreed limit as to the first entrance of a human being into the human community is, of course, to load us the people again with a fearsome responsibility. I see no escaping that, since I know of no revelation of such factual judgments. The only thing more fearful would, however, be for such verdicts to be placed in the hands of private individuals, or to be determined by a 7-2 decision of the Court.
Such have always been among the human, all too human decisions silently taken by mankind in the course of our tortuous history. Christian teachings about abortion, for example, have varied over the centuries. But these have varied according to changing judgments about the evidence for believing there is a new life on the human scene. Fancies about 40 and 80 days of gestational life, reliance on quickening, etc. have been grounds in times past for drawing the line between unprotectable and protectable human life. Only in the nineteenth century after the discovery of the ovum did there come to be a credible rational basis for either Catholics or the A.M.A. (see q. in Wade) to believe that life begins with conception. Before that no one could conceive of "conception."
What has generally been invariant in Western civilization has been the rights and dignity and protection to be accorded to the individual life deemed to be human. Our religious faiths, our philosophies of life, our humanistic visions have to do with justifying and upholding the worth we recognize in or impute to human life. "Subsuming cases" under the value of life-to say, this is a human life that has now put in his claim upon the human community to be accorded equal justice and protection-this is a different sort of judgment, and one to be made with fear and trembling. Yet we collectively must decide such matters, and shall continue to do so as long as we have the courage to accept the necessity for together setting the criteria for finding a life to be human life at either end of the scale. It is only the pretense that we can remain civilized after such deci. sions are left up to the vagaries of private judgment that has to be denied.
I candidly state to you that I am not very hopeful over what people generally through their representatives will decide about these life-and-death issuesin a technologically medical era when "quality of life" is judged to override being alive, and “Choose' has replaced "Choose life" as our moral maxim.
Some comfort may be taken from the fact that over ten years ago the demographer Judith Blake took a look at the anti-permissive abortion sentiment in this country and advised that the only way to accomplish an arbitrary liberty to choose between one life and another in its early stages was to go to the Supreme Court to see whether it would take from the legislatures their power to determine and represent the social compact. I take it, however, that any socalled "pro-lifer" had rather be out-voted than overruled and deprived of voice concerning the limits and the life-and-death terms of our social compact. This, not winning, is what is at stake in the profound alienation of millions and millions and millions of people brought about by the Courts decision in January 1973. I am very sorry that (as reported in the press) Justice Blackmun has received a good deal of "hate mail” since the decision he wrote for the Court. But I pray that he can fathom even in that the moral outrage over being deprived as a people of one of the most important aspects of our together being a people over the course of time. Everyone knows along the pulses that for whomever the bell tolls in these arbitrary life-and-death decisions, now surfaced to consciousness and made
"safe" by modern medicine, it could have been tolled for him long ago and may yet toll for him at the end of life's span.
With power restored to the people to determine agreed criteria for including anyone in or excluding anyone from the human community, we still may go on our way toward some technological version of the definitional solution practiced by the Nuer tribe in Africa who treat infants born with grave deformities or suffering from genetic anomalies as baby hippopotamuses, accidently born to humans and, with this labeling, the appropriate action is clear: they gently lay them in the river where they belong. (Mary Douglas, Purity and Danger: An Analysis of Concepts of Pollution and Taboo. London: Rutledge and Kegan Paul, 1966, p. 39; E. E. Evans-Prichard, Nuer Religion. Oxford University Press, 1956, p. 84.) A shudder along the spine of every American is surely a fitting reaction to the Court's account of why Western medicine has always been concerned to protect unborn lives. This is to be accounted for, we are told, because Christianity happened to take up the views of the Pythagoreans, a small sect in the GraecoRoman world, with its Hippocratic oath pledging physicians never to give abortificants. In now overcoming that limitation, we are asked to recall that pagan outlooks in general and medicine in particular in pre-Christian ages opposed neither abortion nor suicide. Passed over in silence is the fact that approval of aborton was also associated with approval of infanticide.
In this there is retrospective prophecy well on the way toward fulfillment today! A doctor at Yale-New Haven Hospital, explaining on television the newly announced policy of benign neglect of defective infants in that medical center, says that to have a life worth living a baby must be "lovable.” (Allowing to die is quite different from killing; but there too there should be private decisions privately made only in accord with established and uniform public standards.) Millard S. Everett in his book Ideals of Life writes that "no child should be admitted into the society of the living” who suffers "any physical or mental defect that would prevent marriage or would make others tolerate his company only from a sense of mercy ." Who is there among us who need not reply to that, “Mercy, me!"? Michael Tooley, professor of philosophy at Stanford University, concludes that while it would be reprehensible to torture kittens, infants or other sentient creatures for an hour, it would not be wrong and no denial of rights to kill babies in the hospital nursery during the first two weeks after medically checking their acceptability, since human babies are no more than kittens and cannot be bearers of rights until they have self-consciousness of themselves as persons ("Abortion and Infanticide,” Philosophy and Public Affairs, Vol. 2, No. 1, Fall 1972). A physician at the University of Virginia writes that he believes a woman't decision to allow defective baby to die is "her second chance to have an abortion." A fellow theologian, I regret to say, always replies when I use the term "infanticide" : I prefer to call it "neo-naticide”! I myself am surprised by none of these views, nor for that matter do I consider them illogical extensions of what we are doing in the matter of abortion, nor are they without some backing. The legal and moral chaos they bespeak stems rather from letting decisions about the criteria for acceptable life and rightful death decisions fall under the arbitration of private individuals.
To say the least, the Court started these retrogressions into technological medical barbarism from which we shall not soon recover, when it exercised no judicial restraint, when it refused to trust the people's moral sensibility and legislative deliberation to achieve rough agreement about who belongs with us in the community of equal-rights bearers. That decision must somehow be reversed and lifeand-death standard-setting must again be deprivatized. In doing this, the Court itself rolled back by one stroke of the pen steadily increasing respect for the unborn child in the law itself-propelled onward and upward for decades by our increased knowledge of the humanity of unborn life in the modern period. That knowledge had all but opened a "new age of human childhood." Yet the Court declared that "the unborn have never been recognized in the law as persons in the whole sense" (italics added). That, I believe, is demonstrably erroneous. Perhaps the Court meant to say that the whole law has never recognized the unborn as legal persons. That I think is true, e.g., “perfection" of standing and of the right to sue for prenatal injury only comes with birth. But "entitlement" to property conveyed to someone in utero is as to right perfect at that time; further “perfection" here can only mean collecting the cash to which right was fully established at the time of conveyal.
Then there is the N.J. case Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 201 A2d 537, 42 N.J. 421 (1964), perhaps the crest of legal acknowl