edgement of the unborn as full legal persons in one part of our law. Here in the case of a Jehovah's Witness mother who refused a blood transfusion and who was pregnant, the court confronted the alternative of whether to bring this case under (1) the line of cases of adult Witnesses which generally respects their First Amendment right of religious liberty and does not compel transfusions even to save physical life, or under (2) the line of cases dealing with infants or minors of Jehovah's Witnesses whose parents refuse to authorize blood transfusions: here generally the courts have taken jurisdiction of the children and authorized the recommended or necessary medical treatment even against the religious conscience of the parents.

Which sort of case was Fitkin? Both child and mother would die unless the State intervened. Chief Justice Weintraub wrote for an unanimous court: 'We are satisfied that the unborn child is entitled to the law's protection and that an appropriate order should be made to insure blood transfusions to the mother.... We have no difficulty in so deciding with respect to the infant child. . . . It is unnecessary to decide the question [of compelling the adult against her conscience] because the welfare of the child and the mother are so intertwined and inseparable that it would be impractical to distinguish between them . . ." Notably in this case the humanity and rights of the unborn child prevailed over the First Amendment rights of the mother, which is a near-absolute in American law, when these were inseparably intertwined. There can scarcely be stronger evidence for the recognition in our law of the unborn as a person in the whole sense, granting that this does not hold for the whole of our law.

In this instance the issues in the case were decided after Mrs. Anderson had left the hospital. Following Wade, we can imagine another escape: she could request an elective abortion, thereby prevent our law from successfully treating her child as a legally protectable person, and from her point of view deliver both him and herself intact of soul ("the blood is the life") until the day of the general resurrection! Such is by comparison the measure of the far more trivial reasons conscious persons may now use to disregard the rightful claims of the unborn. if indeed these exist any longer at all following Wade. The privatization of abortion decisions means that no one need reach for a First Amendment right to consider overriding the right of the unborn to his or her life. No parity or balancing judgment need now be made, not even one favoring the mother's conscience. Instead, States are now expressly forbidden to bring the rights of the unborn as such into consideration. The minimum of regulations that are allowed indirectly expressive of some interest in "the potentiality of life" must every one be reasonably related directly only to the life and health of the mother. She is the one life to be treated as a person in the whole sense; or, I should say, even partially so in the face of the law.

The fetus is not fully protectable (not fully a legal person), even after viability! Even after viability, the unborn childs right to life is not treated as needing to be in parity with the mother's life before being killed. Her health also may outweigh the child's life. The Court said hypothetically: "If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother" (italics added). I suppose most procedures directed toward trying to save a viable baby may have some adverse effect on the "health" of the mother, especially as that term is now too broadly interpreted by the medical profession. In an article generally favorable to permissive abortion and the Court's decision, Sissela Bok, lecturer in Medical Ethics at Radcliffe College (the President of Harvard is her consort) pleads: "Every effort must be made by physicians and others to construe the Supreme Court's statement [the foregoing statement] to concern, in effect, only the life or threat to life of the mother" ("Ethical Problems of Abortion", Hastings Center Studies, Vol. 2, No. 1, January 1974, p. 44, n. 18, italics added). In a civilized society, why would Sissela Bok have so to plead? Why should the decision to what extent a viable baby should be valued be privatized? Why should physicians be endowed with such arbitrary power over young life that they need to be enjoined not to use it? In this, as well as in its reference to the unborn's capacity for "meaningful" life outside the uterus, the Court steps across the line into "neo-naticide" of viable babies.

Still the rightful claims of the unborn are manifest in the ambiguity that remains. There are taxpayers' or other sorts of suits going forward in the courts asking that, following Wade, jurisdictions that interpreted the Aid to Dependent Children Act to include pregnant welfare women be prohibited from doing soon the ground, I suppose, that these women are not yet "with child" in the

law's meaning. Other lower court decisions have held to the contrary that these women cannot constitutionally be refused listing as welfare mothers. These latter cases raise the question, How can the state make payments in support of a person who does not exist? to her on account of no human being within? They raise the even more crucial moral question: If ADC payments are made to a woman for one or two months after her pregnancy is affirmed, and she then decides to elect an abortion under other laws that now treat her as the only person involved in that issue, has she not to say the least frustrated the purpose of the ADC payments to her? Surely there now is an intolerable contradiction between the legal personhood and the legal no-personhood ascribed to the unborn.

Such are the perplexities that flow from violating ordinary language in speaking of the unborn, especially in an era in which this usage has the backing of our modern knowledge of the independent, individual humanity of unborn life. We do not ordinarily say a woman is "with embryo" or that she is "carrying a fetus." The attempt to say "fetus" rather than "child" is always an effort at first. We can become habituated to it, of course, just as we now customarily say "interrupt a pregnancy" when we mean abortion, although the expression was once the way doctors spoke of Caesarian sections to save an unborn life that could not be brought to natural birth!

So too my own church has schooled itself to speak in its statement of Social Principles (adopted by General Conference in Atlanta, 1972) of "the sanctity of unborn human life," of "the sacredness of the life and well-being of the mother (sic)" and in the same breath to call for "the removal of abortion from the criminal code, placing it instead under laws relating to other procedures of standard medical practice." If there is unborn human life and if there indeed is a "mother," then abortion is not like any other "standard medical practice.' Not until euthanasia or "neo-naticide" becomes "standard." and life-and-death decisions involving lives possessing sanctity have never before in the history of our civil community been believed to be a proper subject for purely privatized choices.2

I urge this Committee and the U.S. Senate as a body to move an amendment to the Constitution that would return to the States their legislative power to protect the unborn child from privatized physician-patient decisions about its life or death. Such an amendment would in no way bind in advance the decisions subsequently to be taken by the States. Liberalization of abortion, perhaps its entire decriminalization would still be options open to the States. This would be a minimum remedy, and the Senate may view it as optimal. The thrust of my testimony, however, is to leave the content of an amendment up to the wisdom of the Senate; and for my own part simply to say that almost any remedy at this point in time would be better than no remedy at all. For the thrust of my testimony has been to the point of reversing the privatization by the Court of decisions concerning protectable humanity, and toward the right of the people to decide matters of such crucial importance to our social compact through ongoing public debate and the political and legislative processes of this nation. I am willing to have my own views on abortion, and those who agree with them, kept within the public forum; and not enshrine them in the Constitution or in Court-made-law-a restraint the pro-permissive abortion advocates were not willing to exercise. It may be that we have passed the point of no return to that remedy; and that this Committee and the U.S. Senate will judge it wiser to frame an amendment in some fashion substantively protecting the unborn from arbitrary choices. Here there may be an analogy with what followed in the wake of the Dred Scott decision. That decision took from the free States and territories the right and the power to recognize the humanity and protect rights of black

2 The stark contradiction in the Methodist statement on the subject-calling for further inquiry-was pointed out by another Methodist Theologian, J. Robert Nelson, Dean of the Boston University School of Theology in "Abortion: What Was Said and Unsaid in Atlanta," (Response, July-Aug. 1972, pp. 23-5). The "legislative history" of that statement was that the call for removing abortion from the criminal code was an amendment hurriedly introduced in too brief debate in Atlanta. Hence the contradiction of moral outlooks between that call and the meaning of the language according human life to the unborn, with all that implies. I suggest if church statements are admitted here-that it would be reasonable for any Senator to find no legislative direction to be discernible in the Methodist statement, unless and until the Christian and the contemporary modes of thought at war in it are resolved one way or the other. Bishop James Armstrong, in his oral testimony on March 8, entirely resolved the ambiguity, however, and departed from the official statement of his church, when he said that the question of the human rights of the unborn is a question that need not be raised.

people and escaped slaves. We all know the sequel: a tragic civil war, a more perfect union wrought out through carnage and sacrifice, the Fourteenth Amendment imposed on the former slave states. Perhaps that direct approach and substantive constitutional protection of the rights and liberties of black ex-slaves was the better way-instead of trusting the far slower process of political and legislative deliberation in the free states and the gradual erosion of slavery where it existed. Perhaps, then, some form of substantive constitutional protection of unborn human life is needed to overturn the "substantive due process" of a judicial decision that has the effect of turning every question both as to the wisdom and as to the morality of abortion over to private decisionmakers.

One must at the least insist on the strong analogy between these two constitutional crises. This nation is in a state of civil and moral strife. Not because "pro-life" people are generally speaking unwilling to be outvoted; but because they now have no vote to cast about the extent of the human community in which we are to live. The right to life is so basic to our civil compact that one can imagine the divisions among us leading to open conflict, but for two differences: (1) Because of the more perfect union wrought by the Civil War there now exists no States claiming or actually exercising the sovereignty they once did: another loss of rights and powers formerly reserved to the States cannot now be resisted, and of course ought not to be. (2) In our present case no one has a "property" self-interest to assert or to deny in the case of the unborn child as in the case of slaves. (The claim that a woman has a right to do what she will "with her own body" comes close to a property-claim over the fetus; but perhaps that language ought not to be taken seriously.) For these reasons, our present constitutional crisis is apt to expend itself in moral passion; and, unless there is remedy, further steps privatizing life-and-death decisions and massive alienation from the body politic that has given over to private choices the determination of who belongs with us as a people each counting for one and no one for more than one.

There will be others testifying before you who will object to my placing confidence in the people through their representatives to judge who counts as a human life. This confidence may seem like the Court's touching faith in physicians to make independent medical decisions and not to perform abortions on request, or its privatization of these decisions and regulating the wisdom and justice of such decisions only by licensure as if they are matters of standard medical practice and not also political or societal decisions about the boundary of the human community of an equal justice to all. My point is simply that physicians are society's deputies in applying the criteria for stating that a new human being has put in his appearance or has passed from among us. My point thereafter is simply that decisions as to the criteria are necessarily human decisions, too; that such decisions as to the extent of our social compact must rest with the people and our deliberative processes; that "the buck stops here" and cannot be appealed to anyone's private "revelation" nor ought it to be taken from us and then handed over to a pair of other human beings to decide or to any group less than the total body politic.

Perhaps my confidence that returning the abortion issue to the States may be a sufficient remedy rests back upon my belief that the factual evidence (that is 'all it can be: a set of factual "good reasons") for the individuated humanity of the unborn child is now quite as clear as the evidence for the human countenance of any black, or of any Senator or of anyone who testifies before you. Before we were so rudely interrupted on January 22, 1973, the weight of the evidence had opened a new era of human childhood, as I have said, and this weight was making its imprint on our law itself. The Court might have taken Judicial notice of that evidence, instead of facing away from it. It is certainly the business of State legislatures and now of the Congress to take notice of facts concerning the unborn. There is reason enough in our modern knowledge for a constitutional amendment substantively protecting the unborn in some fashion and from some stage in their achievement of individuated humanity. That would be a maximal remedy; my tentative proposal is a minimal one; Congress should say which is optimal and/or feasible. Taken alone, Senator Mondale's "family impact" test would, I suspect, have led us long ago in the direction of federal marriage and divorce legislation, as now maybe that test should lead us to see the need for some substantive decision-making at the constitutional level or at the federal legislative level on the matter of abortion. But our system is built upon the 50 State jurisidictions; and, because of this,

and in spite of some clear disadvantages that has, I incline toward a constitutional solution limited to returning to the States and the people within each of those jurisdictions the question of what we mean by the social compact of life with life.

Professor Paul Freund, the distinguished authority on constitutional law at Harvard University, has said that our system of division of powers-executive, legislative, and judicial-ultimately must rest upon the exercise of what he calls "constitutional morality." The staff of the House Judiciary Committee must have had "constitutional morality" in mind when in its memorandum on the meaning of an impeachable offense it said that a President has the duty "not to abuse his powers or transgress their limits... not to act in derogation of powers vested elsewhere by the Constitution"; and again in its reference to "adverse impact on the system of government" (N.Y. Times, February 22, 1974). If that is correct, then impeachment of a President is a remedy for any derogation of powers vested elsewhere by the Constitution; it is a way to insure "constitutional morality."

The fact is, however, that impeachment is no remedy for an exercise of judicial power in derogation of powers vested elsewhere or for decisions of the Court that have an adverse effect on our system of government. It is no remedy for decisions "beyond the call of constitutional duty." That remedy is constitutional amendment; that is the way to insure that "constitutional morality" shall continue constantly to be a restraint upon judicial activism. To our founding Fathers in Constitutional Convention, Professor Edward Corwin has pointed out in his book The President, Office and Powers, "the executive magistracy was the natural enemy, the legislative assembly the natural friend, of liberty." The members of the Constitutional Convention, of course, knew nothing of the judicial review that was later to become established. They could not have imagined that the judicial magistracy might become the natural enemy of liberty or of the legislative power in its direction of an ordered liberty. It would be ironical if the natural friend of liberty, our national legislature, should now be aroused to institute impeachment procedures against an "imperial Presidency" for acts in derogation of powers vested elsewhere by the Constitution or for acts having adverse impact on our system of government, and if then the Congress does not bestir itself to use the remedy of constitutional amendment to correct a decision of an imperial Court that likewise has effects in derogation of powers vested elsewhere by the Constitution and adverse impact on the division between the judicial and legislative power.

It would be undefendable if impeachment may be used to chasten the executive magistracy and not an amendment to chasten the judicial magistracy; if against the one but not the other "constitutional morality" can be sustained. In this regard, the extent to which a Supreme Court decision is popularly and automatically believed to be the last word on what the law is is also a measure of how legislative and amendatory authority has slipped from "the legislative assembly." The Court, of course, in Bolton (issued, I suppose, one minute after Wade) ceremonially refers to Wade in the matter of what the law is. There can be no objection to that manner of speaking when the Court does it. But if the people, the State legislatures and the Congress join the chant, that is a certain sign that we wish to crown the judicial magistracy and legitimate its word as our final law. The amendatory procedure is more legitimate still; and it is our chief recourse for insuring that what Freund called "constitutional morality" shall be a force in the interplay of the separate powers in our government.

In any case, anyone who believes that there was need to submit to the States an "equal rights" amendment, going beyond the Fourteenth in guaranteeing equal rights for women, cannot with any consistency object to an amendment going beyond the Fourteenth, and correcting the Court's interpretation of it in Wade and Bolton, now being submitted to the States for possible adoption into our fundamental law. Object they surely will, with inconsistency and distrust of the people and of their right to amend in this instance. Unhesitatingly, the call should go forth for the Congress to move an amendment that at the least restores to the States legislative power to decide whether and how human life-and-death questions shall be dealt with in the criminal law and in regulation of the fateful actions of physicians.

The opponents of a Life Amendment may finally be correct. The issue is the right of choice or decision. But that must be rightly understood. The issue is the right of a people through the legislative process to set the "credentials," the criteria, the signs of humanity to be used in making life-and-death decisions.

Setting the outer limits of the human community should not be allowed to pass into the hands of private individuals, one, two, or many.

ABORTION AFTER THE LAW

(By Paul Ramsey)

In November 1974, Dr. Bernard N. Nathanson published a brief article in The New England Journal of Medicine, entitled “Deeper Into Abortion."1 I read the article as a recantation for very many-not all-of Dr. Nathanson's activities over the past six or seven years. Since nobody writes "retractions" these days, he is all the more to be honored for his candor.

In early 1969 Nathanson and a group of “equally concerned and indignant citizens" organized the National Association for the Repeal of Abortion Laws (nowsame acronym-The National Abortion Rights Action League). The group was "outspokenly militant," "enlisted the woman's movement and the Protestant clergy into our ranks," "used every device available to political-action groups such as pamphleteering, public demonstrations, exploitation of the media and lobbying ." Nathanson tells of one occasion on which his three year old son proudly carried a placard urging legalized abortion. Success came when Governor Nelson Rockefeller signed into law the New York State Abortion Statute of 1970. But that was not the end of Nathanson's pilgrimage. "Our next goal," he tells us, "was to assure .. that low cost, safe and humane abortions were available to all . ." So the Center for Reproductive and Sexual Health was established-"the first-and largest-abortion clinic in the Western world." By February 1972 the Center had performed 60,000 abortions with no maternal deathsa record of which on that score Dr. Nathanson is justifiably proud. Moreover, let us be clear, he still believes there should be no laws prohibiting abortion. Yet "after a tenure of a year and a half" as director of the largest abortion clinic in the western world, Nathanson resigned because he was "deeply troubled by my own increasing certainty that I had in fact presided over 60,000 deaths."

The fetus is as alive as anyone who "flunks" the Harvard criteria for a physician's declaration that a terminal patient has died. Still Nathanson claims only that human life is a "continuous spectrum" along which we designate "bands" by the words embryo, fetus, infant, child, adolescent and adult. He does not speak of the fetus as a "person," or as an equal congener with the rest of us. He had presided over 60,000 deaths of "a form of human life." Still-remembering his "no holds barred" militancy-Nathanson writes:

"Somewhere in the vast philosophic plateau between the two implacably opposed camps-past the slogans, past the pamphlets, past even the demonstrations and the legislative threats-lies the infinitely agonizing truth. We are taking life, and the deliberate taking of life, even of a special order and under special circumstances, is an inexpressibly serious matter."

I must say that there is a "cop-out" to some degree on Dr. Nathanson's part when he lays upon women alone the responsibility for creating a wholly new attitude toward the "inexpressibly serious matter" of abortion; and when the only recommendation he comes up with is that something needs to be done about "the narrow partisanship of committed young women who have had abortions . . . who typically staff the counselor ranks of hospitals and clinics now."

"Certainly, the medical profession itself cannot shoulder the burden in this matter," Nathanson writes. He has two reasons for that opinion: the first a good reason, the second questionable. First, a decision to abort seldom needs today to be made on medical grounds. As another physician has written, "Abortion is no more purely a medical problem just because the physician wields the curette than chemical warfare is purely a problem for pilots because they press the lever releasing the chemical." The second reason for placing on women alone the burden for creating a new climate of opinion regarding abortion is that the Supreme Court's phrase "between a woman and her physician" is "an empty one since the physician is only the instrument of her decision, and has no special knowledge of the moral dilemma or the ethical agony involved in the decision."

2

1 Bernard N. Nathanson, "Deeper Into Abortion," The New England Journal of Medicine, Vol. 291, No. 22 (November 28, 1974), pp. 189-90.

2 E. Fuller Torrey, ed.. Ethical Issues in Medicine. Boston: Little, Brown and Co., 1968, p. viii. Cf. p. 77: "Abortion is a medical issue only because it is the doctor who wields the necessary instrument. He is no better able to judge who qualifies for an abortion than the patient's minister, the patient's lawyer, or the patient herself."