Cong., 2d Sess., pt., 1 at 30 (1972).

334. Id.

335. Id.

336. Time, May 28, 1973, at 104.

337. Watson, Children from the Laboratory, Prism, May 1973, at 12, 13.

338. Consider Shakespeare:

Out, out, brief candle!

Life's but a walking shadow, a poor player

That struts and frets his hour upon the stage

And then is heard no more; it is a tale

Told by an idiot, full of sound and fury,
Signifying nothing.

-Macbeth, Act V, Sc. 5.

What a piece of work is man! how infinite in
faculty! in form and moving how express and
admirable! in action how like an angel! in
apprehension how like a god! the beauty of the
world! the paragon of animals!

-Hamlet, Act II, Sc. 2.

Teilhard de Chardin, writing in 1938, observed:

The truth is that, as children of a transition period, we are neither fully conscious of, nor in full control of, the new powers which have been released.

T. de Chardin, The Phenomenon of Man 279 (Wall trans. 1959), quoted in, Louisell, Biology, Law and Reason: Man as Self-Creator, 16 Am. J. Jurisprudence 1, 16 (1971). De Chardin's recognition of the fallibility of the human intellect may be profitably compared to the statement of Judge Cassibry in Rosen v. Louisiana State Bd. of Medical Examiners, 318 F. Supp. 1217, 1236 (E.D. La. 1970) (dissenting opinion) to the effect that "human life is a relative" term, its meaning dependent upon the "purpose for which it is defined."

339. U.S. Const. art. I, § 2, cl. 2,3; § 2, cl. 2,3; § 3, cl. 3; § 9, cl. 1,8; art. II, § 1, cl. 2,5; art. IV, § 2, cl. 2; amends. V, XIV, and XXII.

340. Address by Congressman John A. Bingham, Bowerstown, Ohio, August 24, 1866, printed in Cincinnati Commercial, August 27, 1866, at 1, col. 3:

[The amendment] imposes a limitation upon the States to correct their abuses of power, which hitherto did not exist in your Constitution, and which is essential to the nation's life. Look at that simple proposition. No State shall deny to any person, no matter whence he comes, or how poor, how weak, how simple-how friendless-no State shall deny to any person within its jurisdiction the equal protection of the laws. That proposition, I think, my fellow citizens needs no argument. No man can look his fellow-man in the face, surrounded by this clear light of heaven in which we live and dare to utter the proposition that of right any State in the Union should deny to any human being who behaves himself well the equal protection of the laws. Paralysis ought to strangle the tongue before a man should be guilty of the blasphemy that he himself to the exclusion of his fellow man, should enjoy the protection of the laws.

Accord, remarks of Congressman John A. Bingham, House of Representatives, Cong. Globe, 39th Cong., 1st Sess. 1089 (1866):

If a State has not the right to deny equal protection to every human being under the Constitution of this country in the rights of life, liberty, and property, how can State rights be impaired by penal prohibitions of such denial as proposed?

341. Address by Congressman Thaddeus Stevens, Bedford, Pennsylvania, September 4, 1866, printed in Cincinnati Commercial, September 11, 1866, at 2, col. 1, 3:

That [Union] triumph brought with it difficulties even greater than the war itself.
To rebuild a shattered empire... and to erect thereon a superstructure of perfect

equality of every human being before the law; of impartial protection to everyone in whose breast God has placed an immortal soul.... I shall not deny, but admit, that a fundamental principle of the Republican creed is that every being possessing an immortal soul is equal before the law.

Accord, remarks of Senator Jacob M. Howard (the floor sponsor of the fourteenth amendment in the Senate), Cong. Globe, 39th Cong., 1st Sess. 2766 (1866):

The last two clauses of the first section disable a state from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty or property without due process of law [or of equal protection). This abolishes all class legislation in the States and does away with the injustice of subjecting one class of persons to a code not applicable to another.... It establishes equality before the law and it gives to the humblest, the poorest, the most despised of the [human] race the same rights and the same protection as it gives to the most powerful, the most wealthy, or the most haughty.

Accord, remarks of Representative Edgar Cowan, House of Representatives, Cong. Globe, 39th Cong., 1st Sess. 2890 (1866):

So far as the courts and the administration of the laws are concerned, I have supported that every human being within their jurisdiction was in one sense of the word [i.e., the non-political sense] a citizen, that is, a person entitled to protection. ... See also In re Yamashita, 327 U.S. 1, 43 (Rutledge, J. dissenting).

342. Brief for Appellant at 123 n.6, Roe v. Wade, 410 U.S. 113 (1974). 343. See Roe, 410 U.S. at 156-58.

344. Brief for Appellant at 123 n.6, Roe v. Wade, 410 U.S. 113 (1973). The full text of the footnote is as follows: "Section 1 of the Fourteenth Amendment of the United States Constitution refers to all persons born or naturalized in the United States. There are no cases which hold that fetuses are protected by the Fourteenth Amendment."

It is interesting to note that, once again, the advocates of legalized abortion appear to have exercised their penchant for deleting the final clauses and sentences of the sources thought to support their position. These pertinent words follow the ellipses in the quotation: "... are citizens of the United States and of the state in which they reside" [emphasis added). The citizenship clause does not define who is or is not a person. It was meant to ensure citizenship to all persons meeting its requirements, not merely the slaves. See Cong. Globe, 39th Cong., 1st Sess. 474-76, 2887-90, 3040 (1866) (tracing the rejection of a citizenship clause limited to those of African descent). Furthermore, it is equally noteworthy that the construction of the amendment urged above would deprive even aliens of fundamental rights of life, liberty and property. In this regard it is clearly erroneous; that result was expressly rejected by Bingham, the author of section one of the fourteenth amendment. See Cong. Globe, 39th Cong., 1st Sess. 1292 (1866).

As has been seen, the lack of an express holding on the subject of prenatal constitutional status is attributable to the fact that it was not an issue which had any relevance in any context other than the abortion controversy. Only in the area of prenatal property rights would the issue be of similar import, but even there, the law was settled in favor of prenatal rights. See Louisell, Abortion, the Practice of Medicine, and Due Process of Law, 16 U.C.L.A. L. Rev. 233 (1969). See generally W. Prosser, The Law of Torts 641-82 (4th ed. 1971) and cases cited therein.

345. Brief for Appellant at 119, Roe v. Wade, 410 U.S. 113 (1973).

346. Id. at 122, quoting G. Hardin, Abortion or Compulsory Pregnancy?, 30 J. Mar. & Fam. No. 2 (1968).

347. See e.g., Cong. Globe, 39th Cong., 1st Sess. 2890 (1866) (remarks of Senator Howard); Address by Congressman Thaddeus Stevens, at Bedford, Pa., Sept. 4, 1866, printed in Cincinnati Commercial, Sept. 11, 1866, at 2, col. 3; Cong. Globe, 39th Cong., 1st Sess. 2890 (1866) (remarks of Congressman Edgar Cowan). See also address by Congressman John A. Bingham, supra note 319. 348. See note 341 supra. See also text accompanying note 346 supra.

349. See Glona v. American Guarantee Co., 391 U.S. 73, 75-76 (1968):

To say that the test of equal protection should be the "legal" rather than the biological relationship is to avoid the issue. For the Equal Protection Clause necessarily limits the authority of a State to draw such "legal" lines as it chooses.

Accord, B. Schwartz, The Supreme Court 265 (1957) quoted in, Brief in Opposition to Motions to Dismiss Appeal at 34, Byrn v. New York City Health & Hosp. Corp., No. 72-434 (October Term 1972), appeal dismissed, 410 U.S. 949 (1973):

If we are frank, we must admit that racial classification reflects not objective science, but racial animosity. If the equal protection clause means what it says, such irrational classification cannot mount the hurdle of the Fourteenth Amendment (emphasis added).

As the brief goes on to note, "scientifically speaking," classification of the unborn as non-persons is irrational; it does not reflect objective science. Rather, it reflects animosity towards those whose lives are not "meaningful" due to their youth and utter dependence upon others for protection from a hostile environment. See id. 350. 318 F. Supp. 1217 (E.D. La. 1970).

351. Id. at 1236.

352. See Byrn v. New York City Health & Hosp. Corp., 31 N.Y.2d 194, 286 N.E. 2d 887

(1972) (Burke, J., dissenting).

353. The Declaration of Independence provides, in relevant part:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness.... (emphasis supplied.)

354. 410 U.S. 179, 209, 217-18 (1973) (Douglas, J., concurring).

355. See Roe v. Wade, 410 U.S. 113, 165 (1973). But what are these profound problems? The preservation of the "quality of life"? See California Medicine, supra, note 19 at 69. Overpopulation? See e.g., Abele v. Markle, 342 F. Supp. 800, 803 (D. Conn. 1972). The "vicissitudes of life"? See Doe v. Bolton, 410 U.S. 179, 209, 215-16 (1973) (Douglas, J., concurring). Convenience? See id. The need to assure each person a "meaningful" life before he or she is permitted to be born? See Roe v. Wade, 410 U.S. 113, 163 (1973).

356. Santa Clara County v. Southern Pacific R.R., 118 U.S. 394, 396 (1886). See also notes 140-42 supra and accompanying text.

357. Roe v. Wade, 410 U.S. 113 (1973). There was one other occasion when a party litigant raised the issue of his "personhood" in support of a contention that the War Crimes tribunal which tried him had violated his right as a "person" to due process. The Court did not consider the issue. See In re Yamashita, 327 U.S. 1, 25 (1946).

In his dissenting opinion in Yamashita, Justice Rutledge noted the danger of restricting the applicability of the due process clause.

I am completely unable to accept or to understand the Court's ruling concerning the applicability of the due process clause of the Fifth Amendment to this case. Not heretofore has it been held that any human being is beyond its universally protecting spread in the guaranty of a fair trial. That door is dangerous to open. I will have no part in opening it. For once it is ajar, even for enemy belligerants, it can be pushed back wider for others, perhaps ultimately for all. Id. at 78-79.

358. See also Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 403-04. Chief Justice Taney, writing for the majority summed up the distinction as follows:

We think

that [black persons) are not included, and were not intended to be included, under the word "citizens" in the Constitution. On the contrary they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, had no rights or privileges but such as those who held the power and the Government might choose to grant them.

359. U.S. Const. art. I, § 2, cl. 3, changed by U.S. Const. amend. XIV, § 2.

360. Although it had been argued in some quarters that members of the Negro race were not persons, but things, this philosophy was not accepted by the Framers of the original Constitution or by the authors of the fourteenth amendment. See Bailey v. Poindexter's Ex'r, 55 Va. (14 Gratt.) 132, 142-43 (1858), wherein it was argued by counsel for those heirs of the decedent who stood to benefit if the Supreme Court of Virginia refused to recognize the slave as a person that:

[M]arried women may have sound legal discretion in the eye of the law.... They may take estates by deed or will. So may infants, even in ventre sa mere, or idiots, or lunatics. They are all free persons, although under partial or temporary disabilities. To reason in favor of similar powers, rights or capacities in slaves... is to plunge at once into a labyrinth of error.

But see Cong. Globe, 39th Cong., 1st Sess. 1090 (1866) (remarks of Representative Bingham), wherein Bingham, reasoning from the absence in the Constitution of a grant of power to Congress to enforce the rights of all persons, argued that the Framers considered slaves to be persons, if not citizens.

361. See, e.g., Fletcher, The Ethics of Abortion, 14 Clin. Obstetrics & Gynecology 1124, 1125 (1971); G. Hardin, Parenthood: Right or Privilege? 169 Science 427 (1970); Williams, Our Role in the Generation, Modification, and Termination of Life, 124 Archives of Internal Med. 215 (1969); cf., California Medicine, supra note 19, at 68; San Francisco Examiner, March 12, 1974, at 12, col. 1.

362. See Indictment, Count 1, subd. 12, United States v. Greifelt, 4 Trials of War Criminals Before the Nuremburg Military Tribunal Under Control Council Law No. 10 613-14 (1946).

363. In 1972 it was reported that "National and local polls over the past decade now demonstrate that increasing proportions-now nearly two-thirds of all Americanssupport the ready availability of abortion...." The question upon which this contention was based was framed as follows:

As you may have heard, in the last few years a number of states have liberalized their abortion laws. To what extent do you agree or disagree with the following statement regarding abortion: The decision to have an abortion should be made solely by a woman and her doctor.

Pomeroy and Landman, Public Opinion Trends: Elective Abortion and Birth Control Services to Teenagers, Family Planning Perspectives, Oct. 1972, at 44-45, discussed in Blake, Elective Abortion and Our Reluctant Citizenry: Research on Public Opinion in the United States, in Osofsky & Osofsky, supra note 248, at 447, 456. The percentage favoring abortion in this particular poll, taken in June 1972, was 64%. Id. When the question is framed in terms of abortion-on-request (the result in Roe), however, the response is markedly different. The following question was inserted in the September 1972 Gallup survey:

Do you believe that there should be no legal restraints on getting an abortionthat is, if a woman wants one she need only consult her doctor, or do you believe that the law should specify what kinds of circumstances justify abortion?

The percentage of respondents approving or having no opinion when the question was framed in this manner was 39 percent. Id. at 458. This figure hardly evinces majority support for elective abortion; 61 percent of those polled were opposed.

The validity of the foregoing figures was affirmed in November 1972 in the general elections held in Michigan and North Dakota where elective abortion was at issue. In Michigan the issue, denoted "Proposition B", was framed as follows:

The proposed law would allow a licensed medical or osteopathic physician to perform an abortion at the request of the patient if (1) the period of gestation has not reached 20 weeks, and (2) if the procedure is performed in a licensed hospital

or other facility approved by the Department of Public Health.
SHOULD THIS PROPOSED LAW BE APPROVED?

The proposal was defeated by approximately 60.65 percent of the vote. 1972 Michigan Official Canvas of Votes at 63. The North Dakota election produced similar results-76.59 percent opposed to wider access to abortion. North Dakota Official Abstract of Votes Cast at the General Election Held November 7, 1972. It does not seem unreasonable to predict that the percentage of defeat might have been substantially higher had the proposals provided for no limitation on abortions for the full 9 months of gestation-the effect of Roe v. Wade in the absence of state regulation during the last 3 months.

A proposal to revise the Washington State abortion law was submitted to the voters in the election of November 1970. "Referendum 20" passed with 56.49 percent of the vote, but the figures do not significantly compare with those of Michigan. "Referendum 20" not only failed to mention abortion-on-request, but, more importantly, it was presented to the Washington electorate as not involving abortion-onrequest. See Official Voters' Pamphlet, State of Washington 8-9, November 1970.

364. California Medicine, supra note 19 at 68.

365. Furman v. Georgia, 408 U.S. 238, 272 (1972) (Brennan, J., concurring) (characterized as the "right to have rights").

366. Drinan, The Inviolability of the Right to Be Born, in Abortion and the Law 123 (Smith ed. 1967).

367. Compare Roe v. Wade, 410 U.S. 113, 158 (1973) (relying on an advocate's view of 19th century legal practices and implicitly rejecting modern scientific data of unquestionable validity on the beginning of the human organism), with Brown v. Board of Educ., 347 U.S. 483, 494-95 & n.11 (1954) (rejecting 19th century understanding in favor of "modern" psychological developments).

368. Loan Ass'n v. Topeka, 87 U.S. (20 Wall.) 655, 663 (1875):

There are limitations on [governmental) power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name.

369. See Roe, 410 U.S. at 153.