The following is found in the case
SUPREME COURT OF THE UNITED STATES
492 U.S. 490
Webster v. Reproductive Health Services
law.cornell.edu/supct/html/historics/USSC_CR_0492_0490_ZX1.html
No. 88-605 Argued: April 26, 1989 — Decided: July 3, 1989
JUSTICE STEVENS wrote as follows: …
My concern can best be explained by reference to the position on this issue that was widely accepted by the leaders of the Roman Catholic Church for many years. The position is summarized in a report, entitled “Catholic Teaching On Abortion,” prepared by the Congressional Research Service of the Library of Congress. It states in part:
The disagreement over the status of the unformed as against the formed fetus was crucial for Christian teaching on the soul. It was widely held that the soul was not present until the formation of the fetus 40 or 80 days after conception, for males and females respectively. Thus, abortion of the “unformed” or “inanimate” fetus (from anima, soul) was something less than true homicide, rather a form of anticipatory or quasi-homicide. This view received its definitive treatment in St. Thomas Aquinas, and became for a time the dominant interpretation m the Latin Church.
For St. Thomas, as for mediaeval Christendom generally, there is a lapse of time – approximately 40 to 80 days – after conception and before the soul’s infusion. . . .
For St. Thomas, “seed and what is not seed is determined by sensation and movement.” What is destroyed in abortion of the unformed fetus is seed, not man. This distinction received its most careful analysis in St. Thomas. It was the general belief of Christendom, reflected, [p568] for example, in the Council of Trent (1545-1563), which restricted penalties for homicide to abortion of an animated fetus only.
C. Whittier, Catholic Teaching on Abortion: Its Origin and Later Development (1981), reprinted in Brief for Americans United for Separation of Church and State as Amicus Curiae 13a, 17a (quoting In octo libros politicorum 7.12, attributed to St. Thomas Aquinas). If the views of St. Thomas were held as widely today as they were in the Middle Ages, and if a state legislature were to enact a statute prefaced with a “finding” that female life begins 80 days after conception and male life begins 40 days after conception, I have no doubt that this Court would promptly conclude that such an endorsement of a particular religious tenet is violative of the Establishment Clause.
In my opinion the difference between that hypothetical statute and Missouri’s preamble reflects nothing more than a difference in theological doctrine. The preamble to the Missouri statute endorses the theological position that there is the same secular interest in preserving the life of a fetus during the first 40 or 80 days of pregnancy as there is after viability – indeed, after the time when the fetus has become a “person” with legal rights protected by the Constitution. [n13] To sustain that position as a matter of law, I believe Missouri has the burden of identifying the secular interests that differentiate the first 40 days of pregnancy from the period immediately [p569] before or after fertilization when, as Griswold and related cases establish, the Constitution allows the use of contraceptive procedures to prevent potential life from developing into full personhood. Focusing our attention on the first several weeks of pregnancy is especially appropriate, because that is the period when the vast majority of abortions are actually performed.
As a secular matter, there is an obvious difference between the state interest in protecting the freshly fertilized egg and the state interest in protecting a 9-month-gestated, fully sentient fetus on the eve of birth. There can be no interest in protecting the newly fertilized egg from physical pain or mental anguish, because the capacity for such suffering does not yet exist; respecting a developed fetus, however, that interest is valid. In fact, if one prescinds the theological concept of ensoulment – or one accepts St. Thomas Aquinas’ view that ensoulment does not occur for at least 40 days – a State has no greater secular interest in protecting the potential life of an embryo that is still “seed” than in protecting the potential life of a sperm or an unfertilized ovum.
(one more post due to limit)
