Reverse Roe v Wade?

[nancy_dalrymple]

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

1. The State may define the term “physician,” as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.

In Doe v. Bolton, post, p. 179, procedural requirements contained in one of the modern abortion statutes are considered. That opinion and this one, of course, are to be read together. 67

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.

XII

Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing all abortion procedures no matter how medically urgent the case.

Although the District Court granted appellant Roe declaratory relief, it stopped short of issuing an injunction against enforcement of the Texas statutes. The Court has recognized that different considerations enter into a federal court’s decision as to declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v. Koota, 389 U.S. 241, 252-255 (1967); Dombrowski v. Pfister, 380 U.S. 479 (1965). We are not dealing with a statute that, on its face, appears to abridge free expression, an area of particular concern under Dombrowski and refined in Younger v. Harris, 401 U.S., at 50.

We find it unnecessary to decide whether the District Court erred in withholding injunctive relief, for we assume the Texas prosecutorial authorities will give full credence to this decision that the present criminal abortion statutes of that State are unconstitutional.

The judgment of the District Court as to intervenor Hallford is reversed, and Dr. Hallford’s complaint in intervention is dismissed. In all other respects, the judgment of the District Court is affirmed. Costs are allowed to the appellee.

It is so ordered.

---- Begin EndNotes ----

1 "Article 1191. Abortion

"If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By ‘abortion’ is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb or that a premature birth thereof be caused.

"Art. 1192. Furnishing the means

"Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.

"Art. 1193. Attempt at abortion

 

[nancy_dalrymple]

"If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars.

"Art. 1194. Murder in producing abortion

“If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder.”

"Art. 1196. By medical advice

“Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.”

The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title 15 of the Penal Code. Article 1195, not attacked here, reads:

"Art. 1195. Destroying unborn child

“Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.”

2 Ariz. Rev. Stat. Ann. § 13-211 (1956); Conn. Pub. Act No. 1 (May 1972 special session) (in 4 Conn. Leg. Serv. 677 (1972)), and Conn. Gen. Stat. Rev. §§ 53-29, 53-30 (1968) (or unborn child); Idaho Code § 18-601 (1948); Ill. Rev. Stat., c. 38, § 23-1 (1971); Ind. Code § 35-1-58-1 (1971); Iowa Code § 701.1 (1971); Ky. Rev. Stat. § 436.020 (1962); La. Rev. Stat. § 37:1285 (6) (1964) (loss of medical license) (but see § 14:87 (Supp. 1972) containing no exception for the life of the mother under the criminal statute); Me. Rev. Stat. Ann., Tit. 17, § 51 (1964); Mass. Gen. Laws Ann., c. 272, § 19 (1970) (using the term “unlawfully,” construed to exclude an abortion to save the mother’s life, Kudish v. Bd. of Registration, 356 Mass. 98, 248 N. E. 2d 264 (1969)); Mich. Comp. Laws § 750.14 (1948); Minn. Stat. § 617.18 (1971); Mo. Rev. Stat. § 559.100 (1969); Mont. Rev. Codes Ann. § 94-401 (1969); Neb. Rev. Stat. § 28-405 (1964); Nev. Rev. Stat. § 200.220 (1967); N. H. Rev. Stat. Ann. § 585:13 (1955); N. J. Stat. Ann. § 2A:87-1 (1969) (“without lawful justification”); N. D. Cent. Code §§ 12-25-01, 12-25-02 (1960); Ohio Rev. Code Ann. § 2901.16 (1953); Okla. Stat. Ann., Tit. 21, § 861 (1972-1973 Supp.); Pa. Stat. Ann., Tit. 18, §§ 4718, 4719 (1963) (“unlawful”); R. I. Gen. Laws Ann. § 11-3-1 (1969); S. D. Comp. Laws Ann. § 22-17-1 (1967); Tenn. Code Ann. §§ 39-301, 39-302 (1956); Utah Code Ann. §§ 76-2-1, 76-2-2 (1953); Vt. Stat. Ann., Tit. 13, § 101 (1958); W. Va. Code Ann. § 61-2-8 (1966); Wis. Stat. § 940.04 (1969); Wyo. Stat. Ann. §§ 6-77, 6-78 (1957).

3 Long ago, a suggestion was made that the Texas statutes were unconstitutionally vague because of definitional deficiencies. The Texas Court of Criminal Appeals disposed of that suggestion peremptorily, saying only,

“It is also insisted in the motion in arrest of judgment that the statute is unconstitutional and void in that it does not sufficiently define or describe the offense of abortion. We do not concur in respect to this question.” Jackson v. State, 55 Tex. Cr. R. 79, 89, 115 S. W. 262, 268 (1908).

The same court recently has held again that the State’s abortion statutes are not unconstitutionally vague or overbroad. Thompson v. State (Ct. Crim. App. Tex. 1971), appeal docketed, No. 71-1200. The court held that “the State of Texas has a compelling interest to protect fetal life”; that Art. 1191 “is designed to protect fetal life”; that the Texas homicide statutes, particularly Art. 1205 of the Penal Code, are intended to protect a person “in existence by actual birth” and thereby implicitly recognize other human life that is not “in existence by actual birth”; that the definition of human life is for the legislature and not the courts; that Art. 1196 “is more definite than the District of Columbia statute upheld in [United States v.] Vuitch” (402 U.S. 62); and that the Texas statute “is not vague and indefinite or overbroad.” A physician’s abortion conviction was affirmed.

In Thompson, n. 2, the court observed that any issue as to the burden of proof under the exemption of Art. 1196 “is not before us.” But see Veevers v. State, 172 Tex. Cr. R. 162, 168-169, 354 S. W. 2d 161, 166-167 (1962). Cf. United States v. Vuitch, 402 U.S. 62, 69-71 (1971).

4 The name is a pseudonym.

5 These names are pseudonyms.

6 The appellee twice states in his brief that the hearing before the District Court was held on July 22, 1970. Brief for Appellee 13. The docket entries, App. 2, and the transcript, App. 76, reveal this to be an error. The July date appears to be the time of the reporter’s transcription. See App. 77.

7 We need not consider what different result, if any, would follow if Dr. Hallford’s intervention were on behalf of a class. His complaint in intervention does not purport to assert a class suit and makes no reference to any class apart from an allegation that he “and others similarly situated” must necessarily guess at the meaning of Art. 1196. His application for leave to intervene goes somewhat further, for it asserts that plaintiff Roe does not adequately protect the interest of the doctor “and the class of people who are physicians . . . [and] the class of people who are . . . patients . . . .” The leave application, however, is not the complaint. Despite the District Court’s statement to the contrary, 314 F.Supp., at 1225, we fail to perceive the essentials of a class suit in the Hallford complaint.

8 A. Castiglioni, A History of Medicine 84 (2d ed. 1947), E. Krumbhaar, translator and editor (hereinafter Castiglioni

 

[RobbyS]

With the 1973 decision of the Supreme Court in the case of Roe v Wade, the floodgates for legalized abortion were opened. Forty million babies have not been born that, according to the Catholic Church, had a right to live. Is that a holocaust or not? Why are Americans so fixated on the Jewish holocaust, and so *laissez-faire *about the barbarism going on right under their collective nose?

Justice Blackmun, speaking for the majority, wrote: “We need not resolve the difficult question of when life begins.” Was that really a difficult question in 1973? Wasn’t science in a position to verify then that life begins with a zygote, who has the same genetic structure as an adult human, 46 chromosomes, half from the mother, half from the father? If the biologists of that era were never consulted, perhaps there would be an excuse for Roe v Wade. But if they were consulted, what biologist could have said the zygot was not human?

If biologists were not consulted, why didn’t they offer this information as a “friend of the Court”? Was the biological community without scruples or completely blind to the importance of this decision? Also, if the biologists were not consulted, why didn’t the Supreme Court ask for guidance from the scientific community, and more specifically, from the physicians who were experts on life in the womb?

The question before us then is: can and should the Supreme Court reverse itself on Roe v Wade?

Blackmun thought he was getting the best medical opinion from his doctor buddies at Mayo clinic. The irony is that this “progressive” opinion fixed in law the now obsolescent science 0f the early '70s. Or rather what doctors of the time thought was the science.

 

[nancy_dalrymple]

22 Early philosophers believed that the embryo or fetus did not become formed and begin to live until at least 40 days after conception for a male, and 80 to 90 days for a female. See, for example, Aristotle, Hist. Anim. 7.3.583b; Gen. Anim. 2.3.736, 2.5.741; Hippocrates, Lib. de Nat. Puer., No. 10. Aristotle’s thinking derived from his three-stage theory of life: vegetable, animal, rational. The vegetable stage was reached at conception, the animal at “animation,” and the rational soon after live birth. This theory, together with the 40/80 day view, came to be accepted by early Christian thinkers.

The theological debate was reflected in the writings of St. Augustine, who made a distinction between embryo inanimatus, not yet endowed with a soul, and embryo animatus. He may have drawn upon Exodus 21:22. At one point, however, he expressed the view that human powers cannot determine the point during fetal development at which the critical change occurs. See Augustine, De Origine Animae 4.4 (Pub. Law 44.527). See also W. Reany, The Creation of the Human Soul, c. 2 and 83-86 (1932); Huser, The Crime of Abortion in Canon Law 15 (Catholic Univ. of America, Canon Law Studies No. 162, Washington, D. C., 1942).

Galen, in three treatises related to embryology, accepted the thinking of Aristotle and his followers. Quay 426-427. Later, Augustine on abortion was incorporated by Gratian into the Decretum, published about 1140. Decretum Magistri Gratiani 2.32.2.7 to 2.32.2.10, in 1 Corpus Juris Canonici 1122, 1123 (A. Friedburg, 2d ed. 1879). This Decretal and the Decretals that followed were recognized as the definitive body of canon law until the new Code of 1917.

For discussions of the canon-law treatment, see Means I, pp. 411-412; Noonan 20-26; Quay 426-430; see also J. Noonan, Contraception: A History of Its Treatment by the Catholic Theologians and Canonists 18-29 (1965).

23 Bracton took the position that abortion by blow or poison was homicide “if the foetus be already formed and animated, and particularly if it be animated.” 2 H. Bracton, De Legibus et Consuetudinibus Angliae 279 (T. Twiss ed. 1879), or, as a later translation puts it, “if the foetus is already formed or quickened, especially if it is quickened,” 2 H. Bracton, On the Laws and Customs of England 341 (S. Thorne ed. 1968). See Quay 431; see also 2 Fleta 60-61 (Book 1, c. 23) (Selden Society ed. 1955).

24 E. Coke, Institutes III *50.

25 1 W. Blackstone, Commentaries *129-130.

26 Means, The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N. Y. L. F. 335 (1971) (hereinafter Means II). The author examines the two principal precedents cited marginally by Coke, both contrary to his dictum, and traces the treatment of these and other cases by earlier commentators. He concludes that Coke, who himself participated as an advocate in an abortion case in 1601, may have intentionally misstated the law. The author even suggests a reason: Coke’s strong feelings against abortion, coupled with his determination to assert common-law (secular) jurisdiction to assess penalties for an offense that traditionally had been an exclusively ecclesiastical or canon-law crime. See also Lader 78-79, who notes that some scholars doubt that the common law ever was applied to abortion; that the English ecclesiastical courts seem to have lost interest in the problem after 1527; and that the preamble to the English legislation of 1803, 43 Geo. 3, c. 58, § 1, referred to in the text, infra, at 136, states that “no adequate means have been hitherto provided for the prevention and punishment of such offenses.”

27 Commonwealth v. Bangs, 9 Mass. 387, 388 (1812); Commonwealth v. Parker, 50 Mass. (9 Metc.) 263, 265-266 (1845); State v. Cooper, 22 N. J. L. 52, 58 (1849); Abrams v. Foshee, 3 Iowa 274, 278-280 (1856); Smith v. Gaffard, 31 Ala. 45, 51 (1857); Mitchell v. Commonwealth, 78 Ky. 204, 210 (1879); Eggart v. State, 40 Fla. 527, 532, 25 So. 144, 145 (1898); State v. Alcorn, 7 Idaho 599, 606, 64 P. 1014, 1016 (1901); Edwards v. State, 79 Neb. 251, 252, 112 N. W. 611, 612 (1907); Gray v. State, 77 Tex. Cr. R. 221, 224, 178 S. W. 337, 338 (1915); Miller v. Bennett, 190 Va. 162, 169, 56 S. E. 2d 217, 221 (1949). Contra, Mills v. Commonwealth, 13 Pa. 631, 633 (1850); State v. Slagle, 83 N. C. 630, 632 (1880).

28 See Smith v. State, 33 Me. 48, 55 (1851); Evans v. People, 49 N. Y. 86, 88 (1872); Lamb v. State, 67 Md. 524, 533, 10 A. 208 (1887).

29 Conn. Stat., Tit. 20, § 14 (1821).

30 Conn. Pub. Acts, c. 71, § 1 (1860).

31 N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, Art. 1, § 9, p. 661, and Tit. 6, § 21, p. 694 (1829).

 

[nancy_dalrymple]

32 Act of Jan. 20, 1840, § 1, set forth in 2 H. Gammel, Laws of Texas 177-178 (1898); see Grigsby v. Reib, 105 Tex. 597, 600, 153 S. W. 1124, 1125 (1913).

33 The early statutes are discussed in Quay 435-438. See also Lader 85-88; Stern 85-88; and Means II 375-376.

34 Criminal abortion statutes in effect in the States as of 1961, together with historical statutory development and important judicial interpretations of the state statutes, are cited and quoted in Quay 447-520. See Comment, A Survey of the Present Statutory and Case Law on Abortion: The Contradictions and the Problems, 1972 U. Ill. L. F. 177, 179, classifying the abortion statutes and listing 25 States as permitting abortion only if necessary to save or preserve the mother’s life.

35 Ala. Code, Tit. 14, § 9 (1958); D. C. Code Ann. § 22-201 (1967).

36 Mass. Gen. Laws Ann., c. 272, § 19 (1970); N. J. Stat. Ann. § 2A:87-1 (1969); Pa. Stat. Ann., Tit. 18, §§ 4718, 4719 (1963).

37 Fourteen States have adopted some form of the ALI statute. See Ark. Stat. Ann. §§ 41-303 to 41-310 (Supp. 1971); Calif. Health & Safety Code §§ 25950-25955.5 (Supp. 1972); Colo. Rev. Stat. Ann. §§ 40-2-50 to 40-2-53 (Cum. Supp. 1967); Del. Code Ann., Tit. 24, §§ 1790-1793 (Supp. 1972); Florida Law of Apr. 13, 1972, c. 72-196, 1972 Fla. Sess. Law Serv., pp. 380-382; Ga. Code §§ 26-1201 to 26-1203 (1972); Kan. Stat. Ann. § 21-3407 (Supp. 1971); Md. Ann. Code, Art. 43, §§ 137-139 (1971); Miss. Code Ann. § 2223 (Supp. 1972); N. M.

Stat. Ann. §§ 40A-5-1 to 40A-5-3 (1972); N. C. Gen. Stat. § 14-45.1 (Supp. 1971); Ore. Rev. Stat. §§ 435.405 to 435.495 (1971); S. C. Code Ann. §§ 16-82 to 16-89 (1962 and Supp. 1971); Va. Code Ann. §§ 18.1-62 to 18.1-62.3 (Supp. 1972). Mr. Justice Clark described some of these States as having “led the way.” Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola U. (L. A.) L. Rev. 1, 11 (1969).

By the end of 1970, four other States had repealed criminal penalties for abortions performed in early pregnancy by a licensed physician, subject to stated procedural and health requirements. Alaska Stat. § 11.15.060 (1970); Haw. Rev. Stat. § 453-16 (Supp. 1971); N. Y. Penal Code § 125.05, subd. 3 (Supp. 1972-1973); Wash. Rev. Code §§ 9.02.060 to 9.02.080 (Supp. 1972). The precise status of criminal abortion laws in some States is made unclear by recent decisions in state and federal courts striking down existing state laws, in whole or in part.

38 "Whereas, Abortion, like any other medical procedure, should not be performed when contrary to the best interests of the patient since good medical practice requires due consideration for the patient’s welfare and not mere acquiescence to the patient’s demand; and

"Whereas, The standards of sound clinical judgment, which, together with informed patient consent should be determinative according to the merits of each individual case; therefore be it

"RESOLVED, That abortion is a medical procedure and should be performed only by a duly licensed physician and surgeon in an accredited hospital acting only after consultation with two other physicians chosen because of their professional competency and in conformance with standards of good medical practice and the Medical Practice Act of his State; and be it further

“RESOLVED, That no physician or other professional personnel shall be compelled to perform any act which violates his good medical judgment. Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally-held moral principles. In these circumstances good medical practice requires only that the physician or other professional personnel withdraw from the case so long as the withdrawal is consistent with good medical practice.” Proceedings of the AMA House of Delegates 220 (June 1970).

39 "The Principles of Medical Ethics of the AMA do not prohibit a physician from performing an abortion that is performed in accordance with good medical practice and under circumstances that do not violate the laws of the community in which he practices.

“In the matter of abortions, as of any other medical procedure, the Judicial Council becomes involved whenever there is alleged violation of the Principles of Medical Ethics as established by the House of Delegates.”

40 "UNIFORM ABORTION ACT

"SECTION 1. [Abortion Defined; When Authorized.]

"(a) ‘Abortion’ means the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus.

"(b) An abortion may be performed in this state only if it is performed:

"(1) by a physician licensed to practice medicine [or osteopathy] in this state or by a physician practicing medicine [or osteopathy] in the employ of the government of the United States or of this state, [and the abortion is performed [in the physician’s office or in a medical clinic, or] in a hospital approved by the

 

[nancy_dalrymple]

[Department of Health] or operated by the United States, this state, or any department, agency, or political subdivision of either;] or by a female upon herself upon the advice of the physician; and

"(2) within [20] weeks after the commencement of the pregnancy [or after [20] weeks only if the physician has reasonable cause to believe (i) there is a substantial risk that continuance of the pregnancy would endanger the life of the mother or would gravely impair the physical or mental health of the mother, (ii) that the child would be born with grave physical or mental defect, or (iii) that the pregnancy resulted from rape or incest, or illicit intercourse with a girl under the age of 16 years].

"SECTION 2. [Penalty.] Any person who performs or procures an abortion other than authorized by this Act is guilty of a [felony] and, upon conviction thereof, may be sentenced to pay a fine not exceeding $ 1,000] or to imprisonment [in the state penitentiary] not exceeding [5 years], or both.

"SECTION 3. [Uniformity of Interpretation.] This Act shall be construed to effectuate its general purpose to make uniform the law with respect to the subject of this Act among those states which enact it.

"SECTION 4. [Short Title.] This Act may be cited as the Uniform Abortion Act.

"SECTION 5. [Severability.] If any provision of this Act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

"SECTION 6. [Repeal.] The following acts and parts of acts are repealed:

"(1)

"(2)

"(3)

“SECTION 7. [Time of Taking Effect.] This Act shall take effect – – – – – – .”

41 "This Act is based largely upon the New York abortion act following a review of the more recent laws on abortion in several states and upon recognition of a more liberal trend in laws on this subject. Recognition was given also to the several decisions in state and federal courts which show a further trend toward liberalization of abortion laws, especially during the first trimester of pregnancy.

"Recognizing that a number of problems appeared in New York, a shorter time period for ‘unlimited’ abortions was advisable. The time period was bracketed to permit the various states to insert a figure more in keeping with the different conditions that might exist among the states. Likewise, the language limiting the place or places in which abortions may be performed was also bracketed to account for different conditions among the states. In addition, limitations on abortions after the initial ‘unlimited’ period were placed in brackets so that individual states may adopt all or any of these reasons, or place further restrictions upon abortions after the initial period.

“This Act does not contain any provision relating to medical review committees or prohibitions against sanctions imposed upon medical personnel refusing to participate in abortions because of religious or other similar reasons, or the like. Such provisions, while related, do not directly pertain to when, where, or by whom abortions may be performed; however, the Act is not drafted to exclude such a provision by a state wishing to enact the same.”

42 See, for example, YWCA v. Kugler, 342 F.Supp. 1048, 1074 (N. J. 1972); Abele v. Markle, 342 F.Supp. 800, 805-806 (Conn. 1972) (Newman, J., concurring in result), appeal docketed, No. 72-56; Walsingham v. State, 250 So. 2d 857, 863 (Ervin, J., concurring) (Fla. 1971); State v. Gedicke, 43 N. J. L. 86, 90 (1881); Means II 381-382.

43 See C. Haagensen & W. Lloyd, A Hundred Years of Medicine 19 (1943).

44 Potts, Postconceptive Control of Fertility, 8 Int’l J. of G. & O. 957, 967 (1970) (England and Wales); Abortion Mortality, 20 Morbidity and Mortality 208, 209 (June 12, 1971) (U.S. Dept. of HEW, Public Health Service) (New York City); Tietze, United States: Therapeutic Abortions, 1963-1968, 59 Studies in Family Planning 5, 7 (1970); Tietze, Mortality with Contraception and Induced Abortion, 45 Studies in Family Planning 6 (1969) (Japan, Czechoslovakia, Hungary); Tietze & Lehfeldt, Legal Abortion in Eastern Europe, 175 J. A. M. A. 1149, 1152 (April 1961). Other sources are discussed in Lader 17-23.

45 See Brief of Amicus National Right to Life Committee; R. Drinan, The Inviolability of the Right to Be Born, in Abortion and the Law 107 (D. Smith ed. 1967); Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16 U. C. L. A. L. Rev. 233 (1969); Noonan 1.

 

[nancy_dalrymple]

46 See, e. g., Abele v. Markle, 342 F.Supp. 800 (Conn. 1972), appeal docketed, No. 72-56.

47 See discussions in Means I and Means II.

48 See, e. g., State v. Murphy, 27 N. J. L. 112, 114 (1858).

49 Watson v. State, 9 Tex. App. 237, 244-245 (1880); Moore v. State, 37 Tex. Cr. R. 552, 561, 40 S. W. 287, 290 (1897); Shaw v. State, 73 Tex. Cr. R. 337, 339, 165 S. W. 930, 931 (1914); Fondren v. State, 74 Tex. Cr. R. 552, 557, 169 S. W. 411, 414 (1914); Gray v. State, 77 Tex. Cr. R. 221, 229, 178 S. W. 337, 341 (1915). There is no immunity in Texas for the father who is not married to the mother. Hammett v. State, 84 Tex. Cr. R. 635, 209 S. W. 661 (1919); Thompson v. State (Ct. Crim. App. Tex. 1971), appeal docketed, No. 71-1200.

50 See Smith v. State, 33 Me., at 55; In re Vince, 2 N. J. 443, 450, 67 A. 2d 141, 144 (1949). A short discussion of the modern law on this issue is contained in the Comment to the ALI’s Model Penal Code § 207.11, at 158 and nn. 35-37 (Tent. Draft No. 9, 1959).

51 Tr. of Oral Rearg. 20-21.

52 Tr. of Oral Rearg. 24.

53 We are not aware that in the taking of any census under this clause, a fetus has ever been counted.

54 When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother’s condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment’s command?

There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out, n. 49, supra, that in Texas the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?

55 Cf. the Wisconsin abortion statute, defining “unborn child” to mean “a human being from the time of conception until it is born alive,” Wis. Stat. § 940.04 (6) (1969), and the new Connecticut statute, Pub. Act No. 1 (May 1972 special session), declaring it to be the public policy of the State and the legislative intent “to protect and preserve human life from the moment of conception.”

56 Edelstein 16.

57 Lader 97-99; D. Feldman, Birth Control in Jewish Law 251-294 (1968). For a stricter view, see I. Jakobovits, Jewish Views on Abortion, in Abortion and the Law 124 (D. Smith ed. 1967).

58 Amicus Brief for the American Ethical Union et al. For the position of the National Council of Churches and of other denominations, see Lader 99-101.

59 L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed. 1971); Dorland’s Illustrated Medical Dictionary 1689 (24th ed. 1965).

60 Hellman & Pritchard, supra, n. 59, at 493.

61 For discussions of the development of the Roman Catholic position, see D. Callahan, Abortion: Law, Choice, and Morality 409-447 (1970); Noonan 1.

62 See Brodie, The New Biology and the Prenatal Child, 9 J. Family L. 391, 397 (1970); Gorney, The New Biology and the Future of Man, 15 U. C. L. A. L. Rev. 273 (1968); Note, Criminal Law – Abortion – The “Morning-After Pill” and Other Pre-Implantation Birth-Control Methods and the Law, 46 Ore. L. Rev. 211 (1967); G. Taylor, The Biological Time Bomb 32 (1968); A. Rosenfeld, The Second Genesis 138-139 (1969); Smith, Through a Test Tube Darkly: Artificial Insemination and the Law, 67 Mich. L. Rev. 127 (1968); Note, Artificial Insemination and the Law, 1968 U. Ill. L. F. 203.

63 W. Prosser, The Law of Torts 335-338 (4th ed. 1971); 2 F. Harper & F. James, The Law of Torts 1028-1031 (1956); Note, 63 Harv. L. Rev. 173 (1949).

64 See cases cited in Prosser, supra, n. 63, at 336-338; Annotation, Action for Death of Unborn Child, 15 A. L. R. 3d 992 (1967).

65 Prosser, supra, n. 63, at 338; Note, The Law and the Unborn Child: The Legal and Logical Inconsistencies, 46 Notre Dame Law. 349, 354-360 (1971).

66 Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16 U. C. L. A. L. Rev. 233, 235-238 (1969); Note, 56 Iowa L. Rev. 994, 999-1000 (1971); Note, The Law and the Unborn Child, 46 Notre Dame Law. 349, 351-354 (1971).

67 Neither in this opinion nor in Doe v. Bolton, post, p. 179, do we discuss the father’s rights, if any exist in the constitutional context, in the abortion decision. No paternal right has been asserted in either of the cases, and the Texas and the Georgia statutes on their face take no cognizance of the father. We are aware that some statutes recognize the father under certain circumstances. North Carolina, for example, N. C. Gen. Stat. § 14-45.1 (Supp. 1971), requires written permission for the abortion from the husband when the woman is a married minor, that is, when she is less than 18 years of age, 41 N. C. A. G. 489 (1971); if the woman is an unmarried minor, written permission from the parents is required. We need not now decide whether provisions of this kind are constitutional.

 

[Charlemagne_II]

Nancy, those post were all very interesting but too full of legalese to suit me. Did it strike you the same way? The lawyers are looking for a way to expand the rights of mothers and doctors to kill the unborn. Certainly the laws of the 19th century show that there was more moral integrity among the lawmakers and physicians (at least in the United States), and more compassion for the rights of the unborn, than we can find today either in the legal or the medical professions.

In item 53 above:

*53 We are not aware that in the taking of any census under this clause, a fetus has ever been counted. *

How petty is this way of thinking? It amounts to saying that anyone in this country who has not been counted in a census has no rights whatever!

The Pythagoreans, Hippocrates and the early Christians (as well as the modern Catholic Church) were right all along. Why has the modern medical and legal mentality gone so far astray? And especially why has it gone so far astray when it knows more than Pythagoras, Hippocrates and Aquinas about the actual state of humanity in the womb?

Is this because the so-called “brains” of our culture are really so far removed from their religious moorings as to be equally removed from their moral instincts?

 

[nancy_dalrymple]

Nancy, those post were all very interesting but too full of legalese to suit me. Did it strike you the same way? The lawyers are looking for a way to expand the rights of mothers and doctors to kill the unborn. Certainly the laws of the 19th century show that there was more moral integrity among the lawmakers and physicians (at least in the United States), and more compassion for the rights of the unborn, than we can find today either in the legal or the medical professions.

In item 53 above:

*53 We are not aware that in the taking of any census under this clause, a fetus has ever been counted. *

How petty is this way of thinking? It amounts to saying that anyone in this country who has not been counted in a census has no rights whatever!

The Pythagoreans, Hippocrates and the early Christians (as well as the modern Catholic Church) were right all along. Why has the modern medical and legal mentality gone so far astray? And especially why has it gone so far astray when it knows more than Pythagoras, Hippocrates and Aquinas about the actual state of humanity in the womb?

Is this because the so-called “brains” of our culture are really so far removed from their religious moorings as to be equally removed from their moral instincts?

You could be on to something, people today are more concerned with scientology and the universe then the rights to life. You know yourself that they use the unborn to promote their education in the fields of saving life and to educate others for the purpose of self rightousness. The real problem is that people are followers and there are not enough leaders, those who chose to do what is right by God’s laws and not man’s. Then who will listen? satan has his big wigs in high places, the world has taken a turn for the worst and unfortunately ths innocent suffer because of it. As an example look at the supreme courts and the figures that are running it! Love of Christ Nancy

 

[Charlemagne_II]

Nancy

*As an example look at the supreme courts and the figures that are running it! *

Yes, and if the current nominee is approved, there will be six Catholic Supremes. If ever there was a time when Roe could be reversed, this would be it. But I’m skeptical. It seems Catholics today in the political realm don’t want to practice their Catholicism, they are almost eager to defy the Church’s official teaching.

Political prostitutes?

 

[nancy_dalrymple]

I’m afraid everything is money today. It is what makes the world go round.

 

[liquidpele]

You could be on to something, people today are more concerned with scientology and the universe then the rights to life. You know yourself that they use the unborn to promote their education in the fields of saving life and to educate others for the purpose of self rightousness. The real problem is that people are followers and there are not enough leaders, those who chose to do what is right by God’s laws and not man’s. Then who will listen? satan has his big wigs in high places, the world has taken a turn for the worst and unfortunately ths innocent suffer because of it. As an example look at the supreme courts and the figures that are running it! Love of Christ Nancy

Scientology is a cult with money and lawyers that believes numerous alien souls live in us… did you mean to say just Science?

 

[nancy_dalrymple]

Scientology is a cult with money and lawyers that believes numerous alien souls live in us… did you mean to say just Science?

yep THAT IS WHAT I MENT! SORRY:thumbsup:

 

[Charlemagne_II]

Nancy

*You could be on to something, people today are more concerned with scientology and the universe then the rights to life. *

I like to think you meant scientism, the worship of science.

 

[Charlemagne_II]

One question I have never been able to get a straight answer to from the feminists is why a woman has the right to kill her child, and why she has the right to ask a physician to join her in the dirty business, and why the physician has a right to do it.

Pro-choice. High sounding phrase? What does that mean other than right to choose to kill one’s child? Some choice for the child.