appeared from the statutory law of most States and the degree of the offense and the penalties were increased."

(It was upon hearing testimony of a witness to this same effect that prompted the question you asked, Mr. Chairman.)

Then the Court discussed "The position of the American Medical Association." Mr. Chairman, and Members of the Subcommittee, I deem this so important that I will quote it in full, adding my own emphasis:

6. The position of the American Medical Association. The anti-abortion mood prevalent in this country in the lat 19th century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period.

An AMA Committee on Criminal Abortion was appointed in May, 1857. It presented its report, 12 Trans. of the Am. Med. Assn. 73-77 (1859), to the Twelfth Annual Meeting. That report observed that the Committee had been appointed to investigate criminal abortion "with a view to its general suppression." It deplored abortion and its frequency and it listed three causes "of this general demoralization":

"The first of these causes is a wide-spread popular ignorance of the true character of the crime-a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening.

"The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of foetal life . .

"The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. With strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it, and to its life as yet denics all protection." Id. at 75-76.

The Committee then offered, and the Association adopted, resolutions protesting "against such unwarrantable destruction of human life," calling upon state legislatures to revise their abortion laws, and requesting the cooperation of state medical societies “in pressing the subject." Id., at 28, 78.

In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the observation, "We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less." 22 Trans. of the Am. Med. Assn. 258 (1871). It proffered resolutions, adopted by the Association, id., at 38–39, recommending, among other things, that it "be unlawful and unprofessional for any physician to induce abortion or premature labor, without the concurrent opinion of at least one respectable consulting physician, and then always with a view to the safety of the child—if that be possible," and calling "the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of females-aye, and men also, on this important question." I submit that the Court played down and tried to gloss over all that the AMA proclaimed and did, so it could make a false assumption that the abortion laws were chiefly to protect the life of the pregnant woman.

Mr. Chairman, and Members of the Subcommittee, how one could wish that the Court had faced up to its responsibility with the same sincere and responsible attitude expressed in those words the Court itself quoted: "We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less."

The Court consciously chose to err grievously. I make that damning statement because it is evident the Court knew precisely what it was doing.

To excuse itself from resolving "the difficult question of when life begins," it chose to make the false and unwarranted conclusion, and to create the impression of building a foundation for that conclusion, which I have already noted: . . . those trained in . . . medicine . . . are unable to arrive at any consensus." From the end of the long quotation made above, regarding AMA's 19th cen

66

tury positions, until it made this gratuitous statement, the Court presented absolutely no evidence-not a shred of proof-that the medical profession has changed its views one iota about when life begins. The Court did not even dare to imply such a change.

It demonstrated only that some physicians had come to have a more liberal outlook on abortions, now countenancing permissive abortion that once all doctors considered abhorrent! It proved only the lack of a medical consensus on abortion per se, not on when life begins.

What the Court did was to merely quote AMA statements in 1967 and 1970 that demonstrated this single fact. It presented nothing whatsoever concerning any new discoveries or attitudes on when life begins, or any retrogression of medical beliefs prompting physicians to once again accept the old views the AMA in 1859 had cited as "mistaken and exploded medical dogmas."

In effect, the Court lied about the lack of a medical consensus as to the beginning of life, and provided ample proof of that lie for all to see.

The Court also noted positions of the American Public Health Association in 1970 and the American Bar Association in 1972, that did nothing more than to show a more permissive attitude on abortion by those groups. Nothing was alluded to as changing any medical beliefs as to the beginning of human life. Justice Burger, concurring, expressed his being "troubled that the Court has taken notice of various scientific and medical data in reaching its conclusion." Would that it had!

Otherwise the Court would not have said what it did: "We need not resolve the difficult question of when life begins . . . the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."

VIII

Yet only two pages later we run into another inconsistency in what surely has to be one of the sloppiest opinions I have ever read emanating from the High Court.

The Court itself demonstrates that developing law is not speculating on the

answer.

It states:

"In areas other than criminal abortion the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law had denied recovery for prenatal injuries even though the child was born alive. That rule has been changed in almost every jurisdiction. In most States recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have squarely so held. . Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem." (emphasis mine)

The Court continued:

"Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense."

Mr. Chairman, and Members of the Subcommittee, the Supreme Court could have, and should have, stated unequivocally, but failed to, that in criminal law, tort law and property law, developments have given more and more recognition to the rights of the unborn child, and that the law is catching up, however slowly, with medical knowledge of conception first crystalized in 1827.

It failed to base its decisions on the development of such case law, choosing rather to promulgate a decree, properly condemned as "judicial legislation" by dissenting Justice Rehnquist, that with no legal basis whatsoever in constitutional or statutory law, sets out three trimesters for pregancy, and determines the State's interests in protecting human life as variable in their absolute dependence upon the existence, and passing, of those separate but inadequately defined trimesters.

Although the Court claims that those "trained in the . . . discipline of medicine. . . are unable to arrive at any consensus" the Court ironically chose as a basis of its decision, that we're supposed to accept as Constitutional, what in

72-889-76--pt. 2- -3

medical terminology merely serves as a matter of convenience, the division of gestation into trimesters.

I repeat, that division by the Court has no Constitutional or statutory basis! Nor does it rest on absolute medical standards fixing the division any more precisely than the Court did in its deliberately vague language!

It would have been a logical extension of developing law for the Court to have ruled conclusively that the unborn are, indeed, persons, though not as yet fully developed persons. The law recognizes similar lack of development and maturity in children and adolescents under 18 years of age.

Instead, the Court took a deceptive and fallacious course, far removed from, and in spite of, actual legal developments it even took note of. For example, at the point it cited the tort and property developments in law, the decision referred in a footnote to the work of W. Prosser, Handbook of the Law of Torts.

Why, we must ask, did the Court not quote such pertinent language as the following, taken from that same work of Prosser's, p. 355, third edition, 1964? "Medical authority has recognized long since that the child is in existence from the moment of conception, and for many purposes its existence is recognized by the law. The criminal law regards it as a separate entity and the law of property considers it in being for all purposes which are to its benefit, such as taking by will or descent... All writers who have discussed the problem have joined ... in maintaining that the unborn child in the path of an automobile is as much a person as his mother..."

Again, I ask: Why does the Supreme Court of the land declare, contrary to the unchanged AMA position which it quoted and Prosser, to whom it referred, but failed to quote, that there is no medical consensus on the beginning of life? What is the purpose of this deception? I cannot ascribe ignorance or oversight to the Court.

IX

Mr. Chairman, and Members of the Subcommittee, we have a right to ask this question:

Does the Supreme Court of the United States of America place on an equal level, both the "mistaken and exploded medical dogmas" condemned by the AMA in 1859 and never resurrected by the medical profession, and the new scientific findings evolving from the 1827 discovery which led to the discarding of these dogmas?

Such an equating of myth and fact by the Court as only theories of equal standing is more than implied in this statement:

"In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake."

Again, I am forced to return to the Court's false claim that there is no consensus in the medical profession as to the beginning of life.

If it were true that there is no medical consensus, how could the Court place its "theory" against that adopted by Texas, and declare it any more likely to be true, or superior to that of Texas?

On what medical or scientific grounds, on what constitutional or statutory grounds could it do so?

First the Court says it can't even speculate as to when life begins because there's no consensus among authorities, then it flatly declares the "theory" of Texas to be invalid as a basis for that State's abortion statute, and declares the law unconstitutional, accordingly.

Further demonstrating the Court's obvious conviction that human life does not begin with the fertilization of the female ovum by the male sperm-which men of medicine know to be true according to the Court's very own stated evidence the trimester "solution" established by the Court includes the clear separation and upgrading of the values of whatever it thinks is in a woman's womb, at three different levels. The value of the thing in the womb is elevated with the passing of each trimester, and consequently the State's interest in protecting that thing increases accordingly.

The Justices approve the extermination of the thing in the womb with restraint by the State ranging from zero to what the Court considers some maximum restraint, as the value of the thing advances up the three levels the Court has now "constitutionalized."

So, we see that the Court, which declared itself incompetent to speculate on when life begins, establishes by judicial fiat a graduated, three-stage “beginning” which still holds only the "potentiality of human life” until birth.

The truth of what I have stated here is underscored by the statement of Justice Douglas in applying this belief to the law:

"Additionally, the statute is overbroad because it equated the value of embryonic life immediately after conception with the worth of life immediately before birth."

One thing is clear from the history the Court itself has helped us to see, but which it strains to ignore or rewrite.

All the States came to base their abortion laws on the facts forced upon the medical and scientific world by the 1827 discovery of the ovum and its role in conception.

Yet, astoundingly, in 1973, the Nation's highest tribunal expresses its own inability to accept those facts. Worse yet, it declares that Texas has no right to base its abortion law on those facts and relegates them to the category of mere theory!

From what I've already shown in Section V of this testimony, in what the Court, and especially Justice Stewart, said of "the potential future human life within" the pregnant woman, we could readily conclude that the Court fully adheres to the "mistaken and exploded medical dogmas" which scientific medicine was forced to discard after 1827.

It is doubtful if a court composed of tribal medicine men could have made a worse decision!

In Doe the Court says:

"A State is not to be reproached, however, for a past judgmental determination made in the light of then-existing medical knowledge."

Surely the High Court is to be reproached, however, for a current judgmental determination made in spite of, and contrary to, the light of presently existing medical knowledge, by way of a transparently foolhardy effort to extinguish that light!

X

I fear that I can draw a depressing conclusion from the mish-mash of Roẻ and Doe. It appears the majority of the Justices stood for permissive abortion before they confronted the two cases. I think the Court determined its fiat in advance, and then sought to camouflage the evidence proving the contrary.

The very text of the decisions proves this convincingly, in my opinion. The Court felt forced to include evidence it could not leave unmentioned, but then it deliberately ignored the impact of that evidence, which if followed logically should have forced a conclusion precisely the opposite of that reached. The Texas and Georgia statutes would have been upheld.

The evidence which the Court grudgingly acknowledged, but chose to ignore in drawing its conclusion, is so basic as to render all other factors and considerations the Court did rely on, to a secondary position totally overshadowed by a single factor, the immeasurable and irreplaceable value of human life, both before and after birth.

We must remember the States' statutes concerned themselves with the value of the human life of both mother and the fetus.

But the Court chose to place the right of one human being to mere "privacy” ahead of the very right to life of another human being.

What a distortion of values!

The decisions are based on a finding of a so-called right to privacy of a woman who becomes pregnant, encompassing a right to have the pregnancy terminated at any time by the destruction of the embryo or fetus, or even of an almost fully developed but unborn child, for reasons of her own is considered justified by her physician, without prohibition by the State. It is clear from the decision that a claim of health-impairing inconvenience is a valid reason, health being defined as physical or mental.

Of course, all this is contrary to the universal thinking by the legislatures of almost every State in the Union, which, in general, established but one exception to their prohibition of abortion, the need to save the life of the mother. Dissenting Justice White, with Justice Rehnquist joining him, struck hard at this permissiveness of the decision in practically legalizing abortion at will. He said that the decision invested "mothers and doctors with the constitutionally protected right to exterminate" human life. He spelled out the precise impact of the decision, and the few years following the decision have already proven

him 100% correct. Millions of lives have been exterminated! I consider this brief, but incisive dissent so important to these hearings that I want to quote the bulk of it here:

"At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are nevertheless unwanted for any one or more of a variety of reasons-convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

"The Court for the most part sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

"With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus on the one hand against a spectrum of possible impacts on the mother on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review which the Constitution extends to this Court.

"The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life which she carries. Whether or not I might agree with that marshalling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. The issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs."

Justice Stewart noted in concurring:

"There is no constitutional right of privacy, as such. . . the protection of a person's general right to privacy-his right to be let alone by other peopleis, like the protection of his property and of his very life, left largely to the law of the individual States."

Then he quoted Justice Harlan's statement on "the full scope of the liberty guaranteed by the Due Process Clause."

Part of it was this:

"It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . .

Note that Justice Rehnquist said in dissent:

"But that liberty is not guaranteed absolutely against deprivation, but only against deprivation without due process of law."

The abortion laws have been anything but purposeless restraint! They served the State's primary duty, the protection of the greatest asset of any Nation, the very lives of its citizens.

To claim, as the Court did, that an individual's right to privacy exceeded this prime responsibility of the State, whose purpose is to serve society, is utter

nonsense.

The Court held as it did despite acknowledging that the woman's right to privacy is not absolute, and though it watered down any seeming restraints against abortion on demand by justifying one of a permissively broad range of threats she might claim to her physical or mental health from either the pregnancy or the born child.

The Court did say: