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FOR THE UNBORN BABY ... (cont. from page 12) have no rights. Were we to ignore the admonition of Judge Learned Hand and give the "right to privacy" a standing out of context to the whole we would not only destroy the whole but would have debased and rendered shallow what would have otherwise been a sacred right. The strength of the American Judicial System rests upon the sanctity of life-the most precious of the individual rights without which all others become meaningless.
The "quality of life jurisprudents” who advocate the "propriety" of the destruction of the Little Unborn Baby on the basis that his existence is not "meaningful" within the "utilitarian ethic" of "the greatest good for the greatest number”21 are promoting a philosophy alien to our system of law which is based upon the Judeo-Christian concept that all life is precious. The corner-stone of our system of law-JUSTICE-cries out for the repudiation of "abortion on demand".
If the life of the Little Unborn Baby may be forfeited for someone's mere convenience sooner or later all citizens will find that they are at the mercy of a state which can grant or withhold at will the fundamental rights essential to the protection of life, liberty and property. The handwriting is on the wall when one contemplates two recent bills submitted in the legislatures of Florida-an euthanasia bill (H.B. 3184, Oct. 1969)—and Hawaii-a compulsory sterilization bill (S.B. 1421-70).
When our law and the basis from which it springs-the sanctity of life-is placed in proper perspective it will be seen that the Constitution provides only one resolution of this issue-that the Little Unborn Baby's life is protected by the shield of that great rule of law-to take the Little Unborn Baby's life in violation of the 5th and 14 Amendments is to violate his Civil Rights.
CONCLUSION The basic problem, it would seem, is not that we often behave badly but that we may be losing our sense of ethics; the American Consensus about what is good and bad, what is to be done and what avoided, may be breaking down. 22
The attack on the LIFE of the Little Unborn Baby may well prove to be the final assault upon the greatest chance a people ever had to be free-the Constitution of the United States. The fabric of our society is being rent and unless we are quick to heal the wound the damage done may well be this Nation's final illness. Were we to permit the taking of the life of the Little Unborn Baby we will have ignored the prophetic warning of Mr. Justice Brandeis:
Our Government is the potent, the omni-present teacher. For good or ill, it teaches the whole people by its example. Crime is contagious. 23
1. Davis, J., Ex Parte Milligan 71 U.S. (4 Wall) 120. 18
L.Ed. 281, 295 (1866). 2. A. Montagu, Life Before Birth P. 205 (1964). 3. see Byrn, Abortion-on-Demand: Whose Morality? 46
Notre Dame Lawyer 5 (1970). 4. Montagu, Life Before Birth, New York: New York,
American Library, Inc., P. 2 (1964). 5. Patten, Human Embryology 3rd ed., New York,
McGraw-Hill Book Co., (1968). 6. Still, J. Washington Academy of Science, Vol. 59, P. 46
(1969). 7. Liley, Modern Motherhood, P. 26-27 (1969). 8. see Nilsson's photographs appear in Life Before Birth, Life
Educational Reprint No. 27. 9. Towne v. Eisner 245 U.S. 418, 425, 38 S.Ct. 158, 159,
(1918). 10. see Black's Law Dictionary (4th ed., 1968), and Dorland's
Illustrated Medical Dictionary (24th ed., 1965). 11. see Byrn, Abortion-on-Demand: Whose Morality? 46
Notre Dame Lawyer 5, 9-14, (1970). 12. Hilgers and Shearin, Induced Abortion: A Documented
Report, Written for presentation to the Minnesota State
Legislature P. 1, 1971. 13. Prosser, Handbook of the Law of Torts Section 56, at 355
(3rd ed. 1964). 14. Raleigh Fitkin-Paul Morgan Memorial Hospital v.
Anderson 42 N.J. 421, 201 A. 2d. 537, cert. denied, 337
U.S. 985 (1964). 15. Jones v. Jones 208 Misc. 721, 144 N.Y.S. 2d. 820, (Sup.
Ct., 1955). 16. Frankl, The Doctor and the Soul, P. 37 (1969). 17. Gleitman v. Cosgrove, 49 N.J. 22, 227 A. 2d. 689 (1967). 18. Griswold v. Connecticut 381 U.S. 479 (1965). *19. Steinberg et al. v. Rhodes et al. - Fed. Supp. - (Civil
Case No. 70-289, Three Judge Federal Court, 1970). 20. Judge Learned Hand, Proceedings in Memory of Mr.
Justice Brandeis, 317 U.S. xi (1942). 21. see Statement by Rev. Waldemar Argow, "Women's
Abortion Rights Debated", P. 15, The Toledo Times,
March 31, 1971. 22. Cogley, Introduction, in Natural Law and Modern Society,
P. 13, (1962). 23. Olmstead v. United States, 227 U.S. 438, 485, Brandesis J.,
COALITION FOR FREEDOM OF CHOICE,
Minneapolis, Minn., March 4, 1974. Senator BIRCH BAYH, Chairman, Subcommittee on Constitutional Amendments, U.S. Senate, Washington, D.C.
DEAR SENATOR BAYH: The undersigned organizations, constituting the Coalition for Freedom of Choice, do hereby submit the enclosed testimony regarding S.J. 119, which is currently before the Subcommittee on Constitutional Amendments. Sincerely,
Coordinator. Ad Hoc Physicians Committee for Freedom of Choice. Association of Universalist Women. American Association of University Women, Minnesota Division. Abortion Counseling Service of Minnesota. Abortion Rights Counsel of Minnesota. Dakota County Citizens for Freedom of Choice. DFL Feminist Caucus of Minnesota. Elizabeth Blackwell Women's Health Center. GOP Women for Political Effectiveness. Minnesota Feminists. Minnesota Psychological Association. Minnesota Women's Political Caucus. Minnesota Women's Abortion Action Coalition. National Council of Jewish Women, Minnesota Sections. Planned Parenthood of Minnesota. Religious Coalition for Abortion Rights. Social Action Committee of the First Unitarian Society of Minneapolis. Socialist Worker's Party. Southside Comunity Health Coalition. Twin Cities Chapter, National Organization for Women. Twin Cities Women's Union. United Church of Christ, Minnesota. West Suburban Council for Women's Liberation. Women's Rights Committee of the Minnesota Federation of Teachers. Young Socialists. Zero Population Growth.
TESTIMONY REGARDING S.J. 119
The Coalition for Freedom of Choice represents 28 Minnesota professional, service, religious, political and feminist organizations, having a total membership of more than 70,000 Minnesotans. We share the belief that abortion should be a matter for individual decision, based on each person's convictions, and we support the Supreme Court rulings of January 22, 1973, which made it possible for people to exercise their freedom of conscience in this matter.
We wish to express our strong opposition to S.J. 119, which is now before the Senate Subcommittee on Constitutional Amendments. We believe that the definitions established by the Supreme Court are consistent with the principles of good health care, with the pluralistic nature of our society and with its legal framework. S.J. 119 is in conflict with all of these.
First, we believe that this amendment represents a step backward in terms of health care. The restrictive abortion laws which were struck down at last in part an attempt at protecting the health of women. Women, however, continued to seek abortions, often getting them at the hands of illegal abortionists, and the protective laws were the cause of untold suffering. Prior to legal abortion, the complications arising from criminal abortions constituted, in areas like New York City, the major single cause of maternal death. In areas where abortion has been legalized for a statistically measurable amount of time, there has been a marked decrease in maternal death rates. By denying safe, legal access to abortion to most American women, S.J. 119 is unlikely to eliminate it. Instead, it will remove abortion from the protection of medical standards of health care and relegate it once more to the status of an unregulated criminal procedure.
Second, this amendment is in direct conflict with the traditional separation of church and state in this country. Our laws have protected freedom of religion and freedom from religion, guaranteeing freedom of conscience to both majority and minority points of view. By imposing the theology and beliefs of one or two denominations upon all citizens of this country, S.J. 119 sets a dangerous precedent.
Finally, we do not believe that the implications of granting legal personhood to what S.J. 119 refers to as the "unborn" have been evaluated in the context of our entire legal system. There appears to be no historical precedent for recognizing the "unborn" as persons in the constitutional sense. In addition, enactment of this amendment could throw into chaos entire areas of long-established law having no relationship to abortion.
It is our hope that S.J. 119 will be rejected as both unnecessary and unwise, and that future congressional action may be directed toward developing programs of education, family planning services and contraceptive research that will help reduce the need for abortion.
ASSOCIATION FOR GRAND JURY ACTION, INC.,
Rochester, N.Y., March 31, 1974. Senator BIRCH BAYH, Chairman, Subcommittee on Constitutional Amendments, Senate Office Building, Washington, D.C.
Dear Senator BAYH: Even though your hearings on the abortion amendment have been concluded may we ask that this letter and accompanying petition be made a part of the hearing record.
We take no stand on the matter of abortion but are interested solely in the constitutional process. This amendment is not the proper way to counteract a Supreme Court decision. The petition suggests a better method.
Didn't we learn a long time ago that a constitutional amendment wouldn't stop alcohol and resulted in widespread evasion? The same will happen if this amendment is passed. Please consider the arguments in our petition. Very truly yours,
ROBERT E. KESEL,
Petition Before the U.S. Senate and House of Representatives
ASSOCIATION FOR GRAND JURY ACTION, INC., 67 NORTHAMPTON STREET, ROCH
ESTER, NEW YORK 14606; RALPH BORYSZEWSKI, CHAIRMAN, BOARD OF DIRECTORS, 67 NORTHAMPTON STREET, ROCHESTER, NEW YORK; AND ROBERT E. KESEL, 98 ROYLESTON ROAD, ROCHESTER, NEW YORK; PETITIONERS
BARBER B. CONABLE, REPRESENTATIVE, HOUSE OF REPRESENTATIVES, HOUSE OFFICE
BUILDING, WASHINGTON, D.C.; FRANK HORTON, REPRESENTATIVE, HOUSE OF REPRESENTATIVES, HOUSE OFFICE BUILDING, WASHINGTON, D.C.; JACOB JAVITS, SENATOR, U.S. SENATE, SENATE OFFICE BUILDING, WASHINGTON, D.C.; AND JAMES BUCKLEY, SENATOR, U.S. SENATE, SENATE OFFICE BUILDING, WASHINGTON, D.C., RESPONDENTS
CONGRESS HAS MANY ALTERNATIVES TO SUPREME COURT DECISIONS
Our Constitution was never meant to be cluttered by amendments covering every single subject matter that causes and arouses controversy such as abortion. Senator Buckley is proposing a constitutional amendment to bann abortions when in reality this could be brought about by the mere enactment of statute. Congress too often avoids its rightful responsibilities and lets the Supreme Court make vital decisions because the court does not have to run for relection. The Congres is obligated to review all supreme court decisions which it has failed to do. In instances where the Supreme Court decided cases in which it had original jurisdiction, the Congress could change such decisions only by amending the Constitution. Such amendment could (1) consist of revising a specific Supreme Court decision or (2) deprive the court of the right to hear under such original authority in all future cases.
The Congress may by law limit the Court's right to decide cases dealing with the abortion matter. Art. III Sec. 2 of the Constitution empowers congress to make “exceptions and regulations” to the Court's appellate jurisdiction. The Constitution thusly explicitly makes our elected legislators the supreme judges by simply majority vote of what kinds of cases the Court may decide. Our founding fathers wanted the Congress, not the courts, to decide at times the extent to which the federal judicial powers should be used, where it was not specifically spelled out.
Congress has the power, by enactment of a statute to hit at what it deems judicial excess. A controlling number of lawyers in Congress, however, have failed the people by their attempts to serve two masters, one the judicial the other the legislative. Congress therefore has not used its power exclusively in the people's interest.
The judges were never intended to be the sole arbiters of the Constitution. The makers of the Constitution decided that Congrss should have the duty to define what constitutional limitations it was empowered to curb in cases of excess by the Courts. Congress has failed in this duty all too often. The House in 1964, did vote 218 to 175 to forbid the Court to interfere in state legislative apportionments. Under Article III this majority vote was sufficient. The Senate wrongfully sought passage of the measure as a constitutional amendment and the required two-thirds majority missed by seven votes.
If it desired Congress could limit by law Supreme Court membership to only one or at most two judges and could further forbid such judges from citing dissenting opinions to mollify any of its decision.
Under our Constitution, Art, Va constitutional amendment requires a two-thirds vote of Congress and ratification by three fourths of the State legislatures. We are in effect permitting a combination of five supreme court judges with one third of either Senate or House to radically amend our Constitution.
It is up to our elected representatives to discipline and limit the powers of our judges for the people are denied such a direct check on the judges by themselves.
Wherefore petitioners pray: that Senator Buckley's amendment be scrapped as improper and unnecessary and that legislaiton instead be introduced in the matter of abortions ;
that the Congress exert its proper authority in all future matters where the Court has attempted to make ours a government by decrees of five unelected judges. Respectfully submitted,
Board of Directors.
AMERICAN ASSOCIATION OF UNIVERSITY WOMEN,
Schenectady, N.Y., February 27, 1974. Senator BIRCH BAYH, Senate Office Building, Washington, D.C.
DEAR SENATOR BAYH: I understand that some of the anti-abortion amendments which have been proposed will be coming before a Sub-committee headed by you, and I am therefore writing to express the concern of the New York State Division Board of AAUW. The New York Division has long supported abortion reform as well as good medical care, available to everyone, including women.
The proposed Amendments to the U.S. Constitution and the amendments attached to other legislation which would reverse or hinder the implementation of the U.S. Supreme Court decision on abortion are of great concern and presented before the Board of Directors at their February meeting, with the following resolution adopted :
Whereas, the New York State Division, American Association of University Women, has a long-standing record of support of abortion reform; and
Whereas, the New York State Division supported the 1970 New York Abortion Law; and
Whereas, the New York State Division recommended, in accordance with a 1970-71 membership survey, that the New York State Legislature refrain from adopting any restrictive or discriminatory amendments to the 1970 Abortion Law; therefore, be it
Resolved, That this New York State Board of AAUW recommend to our representatives in the New York State Legislature and the U.S. Congress that no restrictive amendments to the U.S. Constitution or to any other federal legislation be adopted which would subvert the 1973 U.S. Supreme Court decision regarding abortion.
Our membership of almost 10,000 women firmly supported the New York Abortion Law of 1970 and voiced disapproval of restrictions or discriminatory amendments which would reduce the availability of abortions or deny this medical care to the indigent.
It would seem that the law as it now stands is a proper one for a pluralistic society. It permits, but does not compel, a woman to have a medically-safe abortion with the decision made according to her own convictions and circumstances. It respects all religious convictions, but does not set one above another ... this is of paramount importance to our society. We, therefore, urge that your committee reject any measures to reverse or block the intent of the 1973 U.S. Supreme Court decision regarding abortion. Very truly yours,
MARJORIE KAGAY, Chairman, NYSD Legislative Committee.
MEN'S RIGHTS ASSOCIATION,
St. Paul, Minn.
POSITION ON ABORTION
The Men's Rights Ass'n leaves conclusions on the legality or morality of abortion to its members. However, we firmly support the right of men to equality of decision with women in matters of abortion. Our stand rests on both biological and constitutional grounds.
Biologically, we know that abstention from sexual activity prevents pregnancy. No sex, no fetus. No method of birth control is 100 percent effective when there is sexual intercourse between fertile persons. Women after puberty and before menopause produce one or more eggs every month. If unfertilized, the menstrual cycle continues. If fertilized, menstruation is prevented, and the development of the individual begins. Without sperm, no babies would be born.
The fetus never is part of the woman; its tissues never mingle with hers. She simply provides the proper aqueous enviornment for the development of the individual. That individual's genetic make-up is determined equally by the father and the mother.
The Preamble to the U.S. Constitution says the purpose of the Constitution is to secure the blessings of liberty "for us and our posterity.” Everyone has a right to produce children, men as well as women. To leave the decision on abortion to women is to deny all men their constitutional right. If the decision stands, the right of a man to preserve the life of his offspring is subservient to the whim of a woman. This is an outrageous and intolerable blow at the most fundamental human right.