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Appendix C BIOGRAPHICAL DATA OF John T. Noonan, JR. Born : Boston, Mass., October 24, 1926, the son of John T. and Marie Shea Noonan.

Married : Mary Lee Bennett of Weston, Mass., December 27, 1967.

Children: John Kenneth, January 5, 1969; Rebecca Lee, October 9, 1970; and Susanna Bain, January 5, 1972.

Present Position: Professor of Law, University of California Law School, Berkeley, 1966 to date.

Education
BA, summa cum laude, Harvard College, 1946 (class of 1947).
Studies in English Literature at Cambridge University, 1946-1947.

MA, 1949, and Ph.D. in Philosophy, 1951, The Catholic University of Amer. ica.

LLB, Harvard Law School, 1954.
LLD (Hon.) University of Santa Clara, 1974.
Admission to Bar-
Massachusetts, 1954.
Supreme Court of the United States, 1971.
Past Positions-

Associate, Herrick Smith, Donald Farley and Ketchum, Boston, Mass., 1955-1966.

Associate Professor of Law, University of Notre Dame Law School, 19611963; Professor of Law, 1963–1966.

Government Service

Member, Special Staff of the National Security Council, 1954-1955, serving as assistant to Robert Cutler, Special Assistant to President Eisenhower.

Member, Chairman, Brookline (Mass.) Redevelopment Authority, 1958– 1962.

Expert, Presidential Commission on Population and the American Future. 1971.

Public Service-
Treasurer, Massachusetts Citizens for Eisenhower, 1956.

Vice-President, American Society for Political and Legal Philosophy, 19621964.

Trustee, Population Council, 1969 to date.
Trustee, Graduate Theological Union, 1970 to 1973.

Director, Secretary and Treasurer, Institute for Research and Study in Medieval Canon Law, 1970 to date.

Consultant, Ford Foundation, Indonesian Legal Fellowships Program, 1969.

Consultant, National Institutes of Health, 1973 (on the protection of children in experiments).

Consultant, National Endowment for the Humanities, 1973 and 1974 (on legal education and on law and the humanities).

Final Judge, Ford Foundation-Rockefeller Foundation Competition for Studies in Population Policy, 1971.

Member, Yale Council Committee on Theological Education, Yale University, 1972 to date.

Senator, Phi Beta Kappa, 1970 to date.
Trustee, Phi Beta Kappa Foundation, 1970 to date.
President, Alpha of California, Phi Beta Kappa, 1972–1973.
Church Service-
Consultant, Papal Commission on Problems of the Family, 1965–1966.
Governor, Canon Law Society of America, 1970–1972.
Member, Committee on Due Process, Canon Law Society of America, 1969.

Member, Catholic Commission on Intellectual and Cultural Affairs, since 1965; Executive Committee, since 1972.

Trustee, University of San Francisco, 1970 to date.
Academic Service-

Chairman, Program in Religious Studies, University of California, Berkeley 1969–1972.

Chairman, Committee on the Robbins Law Library Addition, 1970 to date.

Member, Admission Committee, Law School of the University of California, Berkeley, 1972.

Editorships-
Editor, Natural Law Forum, 1961–1969.
Editor, American Journal of Jurisprudence, 1969 to date.

Member, Editorial Board of Harvard Law Review, 1953–1954: Book Review Editor, 1954.

Fellowships-
Guggenheim Fellowship, 1965–1966.
Fellow, Center for Advanced Studies in the Behavioral Sciences, 1973-1974.
Lectureships-
World Medical Congress, Manila, 1966.

Visiting Professor Law, Southern Methodist University Law School, January, 1966.

Canon Law Society of America, Annual Meeting, 1969.
Visiting Professor of Law, Stanford University Law School Spring, 1970.
Law in a Free Society Lecturer, University of Texas Law School, 1971.
Oliver Wendall Holmes, Jr. Lecturer, Harvard Law School, 1972.
Catholic Theological Society, Annual Meeting, 1972.
Pope John XXIII Lecture, Catholic University of America Law School, 1973.
St. Robert Bellarmine Lecture, St. Louis University, 1973.
National Television-
Today, February 2, 1967.
Firing Line, November 5, 1972.
Firing Line, July 14, 1973.
Prizes-
Phi Beta Kappa, Harvard College, 1945.
John Gilmary Shea Prize of the American Catholic Historical Society, 1965.
Alumni Achievement Award, The Catholic University of America, 1971.
John Gilmary Shea Prize of the American Catholic Historical Society, 1972.
St. Thomas More Award, St. Thomas More Society of San Francisco (1974).
Law School Courses-
Functions of the American Lawyer.
Contemporary Jurisprudence.
Legal Problems in Genetics.
Population Problems and the Law.
Family Law.
Discriminations and Distinctions Based on Age
Slavery As An American Legal Institution.
Canon Law in Legal System.

Business InterestsChairman, Games Research, Inc., (Boston, Mass.) since 1960. Publications,

Books

The Scholastic Analysis of Usury, (Harvard University Press) 1957.

Contraception: A History of Its Treatment by the Catholic Theologians and Canonists (Belknap Press of Harvard University Press) 1965; translated into French, Spanish and German; paperback edition, New American Library, 1967.

Power to Dissolve: Lawyers and Marriages in the Courts of the Roman C'uria (Belknap Press of Harvard University Press) 1972.

Editor, The Morality of Abortion, (Harvard University Press) 1970.

Articles

Law : "The Astronomer and the Gondolas”, Harvard Alumni Bulletin, September 28, 1957, reprinted in Selected Materials Prepared for the Committee on Government Operations of the United States Senate and Its Sub-committee on National Policy Machinery, 86 Congress Second Session, 1960.

“Inferences from the Invocation of the Privilege Against Self-Incrimination”, Virginia Law Review, XXXXI (1955).

“Value References in the Teaching of Negligence”, Journal of Legal Education, VIII (1955).

“Allocation of Administrative Responsibility", Antitrust Law and American Business Abroad by Kingman Brewster, Jr. (McGraw-Hill, 1958).

“The Purposes of Advocacy and the Limits of Confidentiality”, Michigan Law Review, LXIV (1966).

“Academic Freedom and Tenure: St. John's University (N.Y.)”, AAUP Bulletin, LII, March, 1966.

"From Social Engineering to Creative Charity", knowledge and the Future of Man: An International Symposium, edited by Walter J. Ong, S.J. (Holt, Rinehart and Winston, 1968).

“Az Abortusz-Kerdes Tortenete", Merlez (January, 1969). “Amendment of the Abortion Law: Relevant Data and Judicial Opinion", The Catholic Lawyer, XV (1969).

“The Constitutionality of the Regulation of Abortion", The Hastings Law Journal, XXI (1969).

"Population Problems and Abortion", California Monthly, LXXX (1969).

Freedom to Reproduce: Cautionary History, Present Invasions, Future Assurance", Proceedings of the American Civil Liberties Union Biennial Conference (1970).

“Canon Law in the United States: A Time of Ferment," in Legal Thought in the United States Under Contemporary Pressures (ed. J. N. Hazard and W. J. Wagner, 1970).

“Human Rights and Canon Law" in Rene Cassin Amicorum Discipulorumque Liber IV (1972).

“Raw Judicial Power", National Review, March 2, 1973.

"The Family and the Supreme Court", Catholic University of America Law Review 23 (Winter, 1972).

Contraception “Tokos and Atokion: An Examination of Natural Law Reasoning Against Usury and Against Contraception", Natural Law Forum, X (1965).

“Catholics and Contraception", Act, July, 1965.

Contraception and the Council” from Commonweal LXXXIII March 11. 1966 reprinted in The Catholic Case for Contraception edited by Daniel Callahan (Macmillan, 1969) translated as "Das Konzil und die Empfangnisverhutung”, Schweizer Rundschau LXL (1966).

“Authority on l'sury and on Contraception", Tijdschrift Voor Theologic 1966, republished in Cro88currents Winter 1966 and in the Wiseman Review Summer 1966, and digested in Theology Digest March, 1967.

"Birth Control : The Shaping of the Catholic Doctrine", The Perkins School of Theology Journal, XXI (1967), reprinted in St. Joseph Magazine (July, 1967).

“Contraception and the Pope's Conscience", Commonweal, LXXXIV March. 1967.

"La Dottrina della chiesa sull'usura e la contraccezione", Crescente e Motliplicatevi Sempre e Communque (Jaca Book, 1968).

"Intellectual and Demographic History, Daedalus (Spring, 1968). "The Catholic Church and Abortion", Natural Law Forum, XII (1967).

Marriage "Freedom, Experimentation and Permanence in the Canon Law of Marriage", Law for Liberty, edited by James E. Biechler (Helicon, 1967).

"Marital Affection in the Canonists", Studia Gratiana XII: Collectanea Stephan Kuttner (1967).

"History and the Values of Christian Marriage", Marriage in the Light of Vatican II, edited by James T. McHugh (Family Life Bureau, 1968).

"Novel 22”, The Bond of Marriage, edited by William W. Bassett (University of Notre Dame Press, 1968).

"Indissolubility of Marriage and Natural Law”, American Journal of Jurisprudence, XIV, (1969).

"Papal Dissolution of Marriage: Fiction and Function", Proceedings of the Canon Law Society of America (1969).

"The Steady Man: Process and Policy in the Courts of the Roman Curia,” 58 California Law Review 628 (1970).

"USRA's Case” in Wrenn, ed. Divorce and Remarriage in the Catholic Church.

"Power to Choose", Viator (1973).

Theology Renan's Life of Jesus: A Re-Examination", The Catholic Biblical Quarterly, XI (1949).

“Hegel and Strauss: The Dialectic and the Gospels”, The Catholic Biblical Quarterly, XII (1950).

"The Layman, Institutions, and the Church", Trinity College Alumni Journal, XXXIX (Winter, 1966).

"Celibacy in the Fathers of the Church”, The Problematic and Some Problems”, Celibacy: The Necessary Option, edited by George H. Frein (Herder and Herder, 1968).

“The Amendment of Papal Teaching by Theologians”, Contraception: Authority and Dissent, edited by Charles E. Curran (Herder and Herder, 1969).

"Making One's Own Act Another's,” The Catholic Theological Society, Proceedings of the Twenty-Seventh Annual Convention (1972).

Responding to Persons”, Thcology Digest (Winter, 1973).

Philosophy “The Existentialism of Etienne Gilson”, The New Scholasticism, XX, (1950).

“The Protestant Philosophy of John Locke" Philosophical Studies In Honor of the Very Reverend Ignatius Smith, 0.P., edited by John K. Ryan (The Newman Press, 1952).

"Introduction to Volume VIII”, Natural Law Forum, VIII (1963). “Deciding Who Is Human”, Natural Law Forum XIII (1968).

“The Case of the Talented Bakers”, Harvard Medical Alumni Bulletin (Winter 1972).

"Konventionen und Konstruktionen der Naturrechts", in Bochle and Bochenforde, ed., Naturrecht in der Kritik (1973).

"Responding to Persons: Methods of Moral Argument in the Debate over Abortion," Theology Digest 24 (Winter, 1973).

Senator Bays. Thank you, Professor Noonan.
Professor ELY?

STATEMENT OF JOHN ELY, PROFESSOR OF LAW, HARVARD

UNIVERSITY

Mr. Ely. Shortly after the decision in Roe was rendered I analyzed it in some detail and criticized it strongly in an article appearing at 82 Yale Law Journal 920. So I will only briefly summarize my conclusions respecting the opinion, and then go on in the time I have remaining to talk for a few moments about the process of constitutional amendment.

The opinion in Roe raises many problems, some peripheral and some central. Among the peripheral ones that I would mention are two conclusions that I think do not flow even from the court's premises. I have specific reference;

First; To the holding that during the first trimester of pregnancy no health regulation whatsoever, except for the fact that an abortion performed by a doctor, is permissible.

And second : I refer to its holding, which seems clear-although it is undefended—that during the third trimester, at which point even the Supreme Court is prepared to grant that the fetus is a person, the States are obligated constitutionally to prefer the health of the mother over the life of the fetus at that point. Given the broad definition that health has, and rightly has, I think, been given in these contexts, that conclusion, which I repeat was undefended, seems particularly frightening.

I have equal problems with the central points of the opinion, however, and the problems fall generally into two categories. First, the Court never adequately explains why a desire on the part of a State to permit a fetus to proceed to life is not a goal sufficiently important to support the legislative efforts in this area. All it says on that score are two things: First, that legal doctrine, generally, does not regard fetuses as persons; and second, that the various constitutional clauses that use the word “person" do not seem to have been drafted with fetuses in mind. Neither demonstration is at all convincing in my view, but beyond that it seems to me the conclusion is irrelevant to the constitutional question because it has never been held or even asserted, as far as I am aware, that the State interest that is needed to justify forcing a person to refrain from an activity, whether or not the activity is constitutionally protected, must implicate the life of another person.

To take another example, dogs, of course, are not persons but that has never mant that the State cannot prohibit the killing of dogs. It does not even mean the State cannot prohibit the killing of dogs in what you assert to be the exercise of your First Amendment rights.

So on that score, that the State interest is insufficient, it seems to me that the opinion fails.

It seems to me it fails equally with respect to the other half of its inference, and that is the proposition that the right to an abortion is a constitutional right entitled to special constitutional protection. In other words, it never adequately gets to the point of calling for a compelling State interest. Nothing in the Constitution's text, nothing in the Constitution's history suggests any right to an abortion. The court does say that there is something called a right to privacy discoverable in the interstices of the Constitution. And so I believe one can argue there is, so long as one pays attention to the dimensions of the right that can be in ferred. Several amendments certainly relate to privacy in the sense of permitting us, under some circumstances, to keep things from the government, keep secrets from the Government that we would rather it did not have. That meaning of privacy is intelligible and also can be inferred from the Constitution. However, obviously, the right to an abortion has nothing to do with that sort of right and the court does not suggest that it does.

I would be the last to suggest that the Constitution prohibits only the things that the farmers had in mind : inferences from the value structure that is there set forth is the proper stuff of constitutional adjudication.

The trouble is that the Court suggests no such inference in this case

Even that may not be an end to the matter. In a famous footnote in the Carolene Products case, Chief Justice Stone suggested that it was a proper role of the Court to extend protection to what he termed "discrete and insular minorities," unable to adequately protect themselves in the legislative arena.

There are some difficulties in giving principle content to this approach but one thing about it always seemed clear to me, and that was that it made sense only as regards the protection of the inter

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