PROTECTING THE UNRORN
Ramsey, Paul
fication in a common moral sense that the sanctity of human life is involved in abortion, especially when the fetus has developed. There are odds against the success of such efforts, of course....
...More than any particular snapshot or any particular telephone conversation, the form, the medium introduces a message, a change in human behavior...
...Home media (snapshots, movies) have transformed otherwise private social gatherings into events where there is a concern for the record to be made of the event...
...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...
...I hope, however, that the fetal deaths now taking place in abortion clinics and hospitals will move the great majority of Americans to recoil from an abortion society and to unite to support moderately restrictive abortion laws...
...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...
...The opponents of a Life Amendment may finally be correct...
...see q. in Wade) to believe that life begins with conception...
...London: Rutledge and Kegan Paul, 1966, p. 39...
...Holders of the stricter moral position on abortion often exhibit a horror of legal compromise, while those who take a more relative position have shown too little appreciation of the need for legal safeguards to protect human fetal life...
...But these have varied according to changing judgments about the evidence for believing there is a new life on the human scene...
...At the same time, the law's purpose is to serve as a bulwark for human rights...
...The book builds on the media theories of Marshall McLuhan and an31 May 1974:314...
...Law should, protect and advance our most basic moral rights, but if the law fails to do so, then we must insist on those rights without the aid of law...
...1, Fall 1972...
...Fancies about 40 and 80 days of gestational life, reliance on quickening, etc...
...I am here as a private individual who on January 22, 1973, was robbed of his right as a citizen to participate in the public processes by which we as a people PAUL RAMSEY iS a Methodist layman and Harrington Spear Paine Pro[essor of Religion at Princeton University...
...The amendatory procedure is more legitimate still...
...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...
...Mary Douglas, Purity and Danger: An Analysis o] Concepts o] Pollution and Taboo...
...This would be a minimum remedy, and the Senate may view it as optimal...
...Too few people have understood the importance of this effect, especially in a world burgeoning with multiplying do-dads...
...The attempt to say "fetus" rather than "child" is always an effort at first...
...further "perfection" here can only mean collecting the cash to which right was fully established at the time of conveyal...
...The constitutional amendment could founder on the state legislatures' reluctance to have this question returned to them...
...and again in its reference to "adverse impact on the system of government" (N.Y...
...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...
...case Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 201 A2d 537, 42 N.J...
...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...
...Generally I am not a social activist...
...In the unlikely event that physicians began to allow people to die all the way through to the end of cellular life (until hair and nails stopped growing) we would find ways of telling them that is not what we mean by the difference between a still living human being and a corpse...
...The Court said hypothetically: "If the State is interested in protecting fetal life after viability, it may go so tar as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother" (italics added...
...Liberalization of abortion, perhaps its entire decriminalization would still be options open to the States...
...With power restored to the people to determine agreed criteria for including anyone in or excluding anyone from the human community, we still may go on our way toward some technological version of the definitional solution practiced by the Nuer tribe in Africa who treat infants born with grave deformities or suffering from genetic anomalies as baby hippopotamuses, accidentally born to humans and, with this labeling, the appropriate action is clear: they gently lay them in the river where they belong...
...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 huCommonweal: 311 manity of unborn life...
...1, January 1974, p. 44, n. 18, italics added...
...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 ~ 'QQ and herself intact of soul ("the blood is the life") until the day of the general resurrection...
...It may be that we have passed the point of no return to that remedy...
...On this supposition the State legislatures could limit what physicians do in making life and death decisions only by licensure...
...Passed over in silence is the fact that approval of abortion was also associated with approval of infanticide...
...So we have legislation or case-law based on it, wise or unwise, traditional or novel, defining death...
...Physicians are our deputies in applying the criteria for stating that a man has died...
...The issue is the right of choice or decision...
...While saying it did not settle that issue, the Supreme Court did just that--all the while proclaiming that when individual human life begins is a murky theological question...
...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 decisions9 Setting the outer limits of the human community should not be allowed to pass into the hands of private individuals, one, two, or many...
...Laws restricting abortions would be bulwarks against that tide...
...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 lile or threat to lile of the mother" ("Ethical Problems of Abortion", Hastings Center Studies, Vol...
...Never before have I knowingly testified before a Congressional committee...
...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...
...Then there is the N.J...
...These latter cases raise the question, How can the state make payments in support of a person who does not exist...
...Many Americans, women especially, may come to accept the Supreme Court's view that abortion is a matter for the personal decision of the woman...
...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...
...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...
...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.* I urge this Committee and the U.S...
...For the thrust of my testimony has been to the *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...
...This legitimates or deputizes physician declarations of death...
...23-5...
...That remedy is constitutional amendment...
...This, not winning, is what is at stake in the profound alienation of millions and millions and millions of people brought about by the Court's decision in January 1973...
...If that is correct, then impeachment of a President is a remedy for any derogation of powers vested elsewhere by the Constitution...
...Before that no one could conceive of "conception...
...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...
...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...
...Even a[ter viability, the unborn child's right to lile is not treated as needing to be in parity with the mother's life before being killed...
...There is a peculiar intimacy to the telephone: it allows instant contact and instant termination without protracted amenities...
...Would there not be need for a constitutional amendment to restore the setting of criteria to our public and legislative processes...
...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...
...determine the outer limits of human communityNthe limit at the first of life and soon it may also be the limit at the end of hfe--within which boundaries an equal justice and equal protectability should prevail for all who bear the agreed "signs of life...
...This nation is in a state of civil and moral strife...
...In this there is retrospective prophecy well on the way toward fulfillment today...
...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...
...I take it, however, that any so-called "pro-lifer" had rather be out-voted than overruled and deprived of voice concerning the limits and the life-and-death terms of our social compact...
...and not enshrine them in the Constitution or in Court-made law--a restraint the pro-permissive abortion advocates were not willing to exercise...
...Questionable as that may be, it at least has the virtue of being based on an implicit claim to possess the best factual evidence in the light of modern knowledge...
...or, I should say, even partially so in the face of the law...
...I myself am surprised by none of these views, nor for that matter do I consider them illogical extensions of what we are doing in the matter of abortion, nor are they without some backing...
...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...
...but perhaps that language ought not to be taken seriously...
...That surely is the people's business...
...A person with a telephone can maintain a wider network of social contacts than in pre-telephone days...
...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 so----on the ground, I suppose, that these women are not yet "with child" in the law's meaning...
...In a civilized society, why would Sissela Bok have so to plead...
...The legal and moral chaos they bespeak stems rather from letting decisions about the criteria for acceptable life and rightful death decisions fall under the arbitration of private individuals...
...BOOKSlll I I,I I THE MESSAGE, THE MEDIUM, THE RESONANCE DANIEL MACK The Responsive Chord Anchor, $6.95 TONY SCHWARTZ Ten years ago Marshall McLuhan declared in Understanding Media that the medium is the messagemthat the real message of any medium is "the change of scale or pace or pattern that it introduces into human affairs 9 . . it is the medium that shapes and controls the scale and form of human association and action...
...One must at the least insist on the strong analogy between these two constitutional crises...
...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...
...For example, the telephone has changed the quality of socializing...
...Why should physicians be endowed with such arbitrary power over young life that they need to be enjoined not to use it...
...This is to be accounted for, we are told, because Christianity happened to take up the views of the Pythagoreans, a small sect in the Graeco-Roman world, with its Hippocratic oath pledging physicians never to give abortificants...
...but because they now have no vote to cast about the extent of the human community in which we are to live...
...Professor Alexander M. Capron of the University of Pennsylvania Law School has recently summarized the need for and the propriety of a societal function in regard to new proposals for updating the criteria for death which physicians apply ("To Decide What Death Means," The New York Times, News of the Week, Feb...
...Laws should be drawn to test the parameters of the Supreme Court's ruling, especially the period of six months when no restrictions can be placed on abortions, and the permissive standard for abortion in the three months before birth...
...but they alone do not set the criteria...
...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 privatizing 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 thereafter is simply that decisions as to the criteria are necessarily human decisions, too...
...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...
...2, No...
...Times, February 22, 1974...
...Between Doctor and Patient Now suppose the Supreme Court were to rule that determining the outer limit of the human community short of which there exists a right to life still resident in the dying is a matter falling strictly within the privacy of the doctor-patient relation, or is even to be decided by physician and family members...
...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...
...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...
...E. E. Evans-Pritchard, Nuer Religion...
...Our religious faiths, our philosophies of life, our humanistic visions have to do with justifying and upholding the worth we recognize in or impute to human 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...
...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...
...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...
...We can become habituated to it, of course, just as we now customarily say "interrupt a pregnancy" when we mean abortion, although that expression was once the way doctors spoke of Caesarian sections to save an unborn life that could not be brought to natural birth...
...But "entitlement" to property conveyed to someone in utero is as to right perfect at that time...
...The deputyship of physicians or of any single individual or group of individuals does not extend to fixing the criteria for determining who shall or shall not be deemed a subject of rights...
...I am willing to have my own views on abortion, and those who agree with them, kept within the public forum...
...Why should the decision to what extent a viable baby should be valued be privatized...
...What has generally been invariant in Western civilization has been the rights and dignity and protection to be accorded to the individual life deemed to be human...
...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...
...Today, after the Supreme Court's decision, disregard for human life runs high...
...That, I believe, is demonstrably erroneous...
...The thrust of my testimony, however, is to leave the content of an amendment up to the wisdom of the Senate...
...The Court might have taken judicial notice of that evidence, instead of facing away from it...
...Often, the concern for the historical record of the event becomes the center of the gathering itself...
...A physician at the University of Virginia writes that he believes a woman's decision to allow a defective baby to die is "her second chance to have an abortion...
...Yet the Court declared that "the unborn have never been recognized in the law as persons in the whole sense" (italics added...
...Would the Court decision not be deemed an exercise of "raw judicial power...
...Michael Tooley, professor of philosophy at Stanford University, concludes that while it would be reprehensible to torture kittens, infants or other sentient creatures for an hour, it would not be wrong and no denial of rights to kill babies in the hospital nursery during the first two weeks after medically checking their acceptability, since human babies are no more than kittens and cannot be bearers of fights until they have sellconsciousness of themselves as persons ("Abortion and Infanticide," Philosophy and Public Affairs, Vol...
...Perhaps the Court meant to say that the whole law has never recognized the unborn as legal persons...
...I see no escaping that, since I know of no revelation of such factual judgments...
...Everyone knows along the pulses that for whomever the bell tolls in these arbitrary Commonweal: 309 life-and-death decisions, now surfaced to consciousness and made "'safe" by modem medicine, it could have tolled for him long ago and may yet toll for him at the end of life's span...
...Subsuming cases" under the value of life--to say, this is a human life that has now put in his claim upon the human community to be accorded equal justice and protection--that is a different sort of judgment, and one to be made with fear and trembling...
...that is the way to insure that "constitutional morality" shall continue constantly to be a restraint upon judicial activism...
...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...
...Anderson had left the hospital...
...I hope we would do the same in the (more likely) event that physicians began to declare people dead not on the basis of brainstem death (the current "up-dating"), but when there is only cessation or destruction of the higher cortical functions of the brain (thus certifying as corpses for burial or for organ donation bodies whose hearts still 31 May 1974:308 are beating spontaneously and naturally without any external support-system...
...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...
...have been grounds in times past for drawing the line between unprotectable and protectable human life...
...I suggest--if church st.atements 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...
...His major interest, which is in sound, has led him to create thousands of radio and television commercials, and he has worked on many political campaigns, mostly for liberal Democrats...
...This article is based on written testimony recently presented to the subcommittee of the Senate ]udiciary Committee holding hearings on the various abortion amendments...
...Senate will judge it wiser to frame an amendment in some fashion substantively protecting the unborn from arbitrary choices...
...That I think is true, e.g., "perfection" of standing and of the right to sue for prenatal injury only comes with birth...
...Since the late 1940s, when he developed a portable tape recorder, he has done pioneering work in the effects of the media...
...Among his publications in the area of medical ethics are Fabricated Man: The Ethics of Genetic Control and The Patient as Person: Explorations in Medical Ethics...
...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...
...Jl May 1974:310 Which sort of case was Fitkin...
...No parity or balancing judgment need now be made, not even one favoring the mother's conscience...
...Some comfort may be taken from the fact that over ten years ago the demographer Judith Blake took a look at the anti-permissive abortion sentiment in this country and advised that the only way to accomplish an arbitrary liberty to choose between one life and another in its early stages was to go to the Supreme Court to see whether it would take from the legislatures their power to determine and represent the social compact...
...Chief Justice Weintraub wrote for a 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...
...A fellow theologian, I regret to say, always replies when I use the term "infanticide": I prefer to call it "neo-naticide...
...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...
...Allowing to die is quite different from killing...
...Both child and mother would die unless the State intervened...
...Such have always been among the human, all too human decisions silently taken by mankind in the course of our tortuous history...
...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...
...There can be no objection to that manner of speaking when the Court does it...
...The Responsive Chord is a collection of Schwartz' theories, thoughts, anecdotes, insights and speculations on the effects of the media, particularly on how radio and television affect thinking and behavior...
...to her on account of no human being within...
...Christian teachings about abortion, for example, have varied over the centuries...
...Congress should say which is optimal and/or feasible...
...Tony Schwartz understands McLuhan...
...Here there may be an analogy with what followed in the wake of the Dred Scott decision...
...1972, pp...
...I came here today because of what I regard as the deep significance of the issue before you, and the seriousness of this hour in the moral histo~ of this nation--indeed, of mankind...
...Other lower court decisions have held to the contrary that these women cannot constitutionally be refused listing as welfare mothers...
...In doing this, the Court itself rolled back by one stroke of the pen steadily increasing respect for the unborn child in the law itself--propelled onward and upward for decades by our increased knowledge of the humanity of unborn life in the modern period...
...I am very sorry that (as reported in the press) Justice Blackmun has received a good deal of "hate mail" since the decision he wrote for the Court...
...To say the least, the Court started these retrogressions into technological medical barbarism from which we shall not soon recover, when it exercised no judicial restraint, when it refused to trust the people's moral sensibility and legislative deliberation to achieve rough agreement about who belongs with us in the community of equal-fights bearers...
...2, No...
...It is no remedy for decisions "beyond the call of constitutional duty...
...it is a way to insure "constitutional morality...
...Her health also may outweigh the child's life...
...A shudder along the spine of every American is surely a fitting reaction to the Court's account of why Western medicine has always been concerned to protect unborn fives...
...For all practical purposes the Court pronounced that no one enters the human community nor has any rights due him until viability...
...Such an amendment would in no way bind in advance the decisions subsequently to be taken by the States...
...but there too there should be private decisions privately made only in accord with established and uniform public standards...
...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...
...He is past president of the American Society on Christian Ethics and former president of the American Theological Society...
...Surely there now is an intolerable contradiction between the legal personhood and the legal no-personhood ascribed to the unborn...
...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...
...It is more than possible that legal efforts will fail in the face of the great obstacles raised by the Supreme Court's ruling on abortion and that efforts to prevent and reduce abortions will have to be confined to a moral and social sphere apart from law...
...Yet we collectively must decide such matters, and shall continue to do so as long as we have the courage to accept the necessity for together setting the criteria for finding a life to be human life at either end of the scale...
...For these reasons, our present constitutional crisis is apt to expend itself in moral passion...
...Not until euthanasia or "neo-naticide" becomes "standard...
...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...
...It would be undefendable if impeachment may be used to chasten the executive magistracy and not an amendment to chasten the judicial magistracy...
...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...
...But our system is built upon the 50 State jurisdictions...
...If there is unborn human life and if there indeed is a "mother," then abortion is not like any other "standard medical igractice...
...if against the one but not the other "constitutional morality" can be sustained...
...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 exist 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...
...That decision took from the free States and territories the right and the power to recognize the humanity and protect rights of black people and escaped slaves...
...I candidly state to you that I am not very hopeful over what people generally through their representatives will decide about these life-and-death issues--in a technologically medical era when "quality of life" is judged to override being alive, and "Choose" has replaced "Choose life" as our moral maxim...
...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...
...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...
...In this instance the issues in the case were decided after Mrs...
...It is certainly the business of State legislatures and now of the Congress to take notice of facts concerning the unborn...
...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 (I) 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...
...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...
...and that this Committee and the U.S...
...But I pray that he can fathom even in that the moral outrage over being deprived as a people of one of the most important aspects of our together being a people over the course of time...
...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 assembly9 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...
...Oxford University Press, 1956, p. 84...
...A doctor at Yale-New Haven Hospital, explaining on television the newly announced policy of benign neglect of defective infants in that medical center, says that to have a life worth living a baby must be "lovable...
...Still the rightful claims of the unborn are manifest in the ambiguity that remains...
...We are in that situation now, and nothing could illustrate more clearly the difference between morality and law...
...He is one o/ the ]ew non-pro[essionals elected to membership in the Institute of Medicine of the National Academy of Sciences...
...Other legal efforts, as Minnesota's new abortion law, can go forward even under the Supreme Court's ruling...
...The fetus is not fully protectable (not fully a legal person), even after viability...
...The members of the Constitutional Convention, of course, knew nothing of the judicial review that was later to become established...
...that such decisions as to the extent of our social compact must rest with the people and our deliberative processes...
...Instead, States are now expressly forbidden to bring the rights of the unborn as such into consideration...
...But behind that is, for me, the monstrous claim that the Court decides such matters...
...In now overcoming that limitation, we are asked to re.call that pagan outlooks in general and medicine in particular in pre-Christian ages opposed neither abortion nor suicide...
...These are judgments about the best factual evidence...
...It is an instrument of control, giving its user the option of changing a social situation in a word or two and a click...
...In continuing to insist on the sanctity of human fetal life and its claim to justice, the pro-life forces have done this country, it seems to me, an inestimable service...
...Only in the nineteenth century after the discovery of the ovum did there come to be a credible rational basis for either Catholics or the A.M.A...
...It would be ironical if the natural friend of liberty, our national legislature, should n,~w be aroused to institute impeachment proceCommonweal: 31:1 dures 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 the legislative power...
...But that must be rightly understood...
...Not because "prolife" people are generally speaking unwilling to be outvoted...
...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 decision-makers...
...We do not ordinarily say a woman is "with embryo" or that she is "carrying a fetus...
...To restore to political and legislative decision-making processes the power to draw an agreed limit as to the first entrance of a human being into the human community is, of course, to load us the people again with a fearsome responsibility...
...PROTECTING THE UNBORN PAUL RAMSEY How do we as a people determine the outer limits o| humcm community...
...24, 1974...
...That decision must somehow be reversed and life-and-death standard-setting must again be deprivatized...
...my tentative proposal is a minimal one...
...The only thing more fearful would, however, be for such verdicts to be placed in the hands of private individuals, or to be determined by a 7-2 decision of the Court...
...Millard S. Everett in his book Ideals o] Idle writes that "no child should be admitted into the society of the living" who suffers "any physical or mental defect that would prevent marriage or would make others tolerate his company only from a sense of mercy . . ." Who is there among us who need not reply to that, "Mercy, me...
...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...
...The first effort, after the right to refuse to participate in an abortion has been secured, should be for legislation requiring good-faith efforts to save babies born alive in an abortion procedure...
...and, unless there is remedy, further steps privatizing life-and-death decisions 31 May 1974:312 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...
...That knowledge had all but opened a "new age of human childhood...
...It is only the pretense that we can remain civilized after such decisions are left up to the vagaries of private judgment that has to be denied...
...State laws should also require stricter standards for ascertaining the age of the fetus, since it is now too easy to abort a viable fetus because of a mistake as to its age...
...That would be a maximal remedy...
...421 (1964), perhaps the crest of legal acknowledgment of the unborn as full legal persons in one part of our law...
Vol. 100 • May 1974 • No. 13
