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the unborn from those who would take his life for purposes of comfort, convenience, property or peace of mind rather than sanction his demise."332

Perhaps it is a measure of the extent to which the quality-of-life philosophy dominates our jurisprudence that a justice of the Supreme Court can write in the "environmental context" of the destruction of trees and animals, "any man's death diminishes me, because I am involved in Mankinde,' "333 while in the human context of the destruction of unborn children, he can opine, contrary to fact, that "the fetus, at most, represents only the potentiality of life; "334 and proceed to exile the unborn beyond the pale. But unborn children are also a part of mankind and, aware of it or not, his opinion did diminish the Court and all the rest of us.

First, Dred Scott, then Buck v. Bell and now the most tragic of them all -Roe v. Wade. Three generations of error are three too many-and the last of them shall be called the worst.

332. Byrn v. New York City Health & Hosps. Corp., 31 N.Y.2d at 206, 286 N.E.2d at 892, 335 N.Y.S.2d at 397 (Burke, J., dissenting).

333. Sierra Club v. Morton, 405 U.S. 727, 760 n.2 (1972) (Blackmun, J., dissenting). 334. 93 S. Ct. at 731.

THE ABORTION AMENDMENTS: POLICY IN THE LIGHT OF PRECEDENT

ROBERT M. BYRN

Reprinted from

SAINT LOUIS UNIVERSITY LAW JOURNAL

Vol. 18, No. 3, Spring, 1974

Copyright 1974 by Saint Louis University School of Law

THE ABORTION AMENDMENTS: POLICY IN THE LIGHT OF PRECEDENT

ROBERT M. BYRN*

In the days immediately following the January 22, 1973 announcement by the United States Supreme Court of its decisions in the "abortion cases," Roe v. Wade1 and Doe v. Bolton,2 reactions ran predictably from elation to outrage. Except possibly for the relative few who were less concerned with the merits of the litigation and more with whether the Court had abused its power by intruding into matters of purely legislative concern,3 there seemed to be no middle ground. A number of months passed before those of us who had been deeply involved in the controversy discerned the emergence of at least one very crucial middle group.

After a year of post-Wade lectures, debates, and dialogue, the writer has come to conclude that the abortion decisions left many people of good will in a quandary. They have the always uneasyalbeit sometimes vague-feeling that abortion kills something human and killing is wrong. On the other hand, they are inclined to share with the Supreme Court the belief that "population growth, pollution, poverty and racial overtones tend to complicate and not to simplify the problem." They are tempted to agree with the Court that the abortion decisions are "consistent . . . with the demands of the profound problems of the present day," that, in other words, permissive abortion is a solution to these problems and we have to learn to live with it.

This apparent dilemma can neither be ignored nor left unsolved. The abortion controversy, far from being over, has merely shifted with a new intensity from the legislative and judicial milieus to the constitutional amendment arena. There will come a time in the amending process when those who are troubled by what they conceive to be a difficult choice between conflicting interests will

B.S., J.D. Fordham University; Professor of Law, Fordham University. 1. 410 U.S. 113 (1973).

2. 410 U.S. 179 (1973).

3. See, e.g., Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973).

4. Roe v. Wade, 410 U.S. 113, 116 (1973).

5. Id. at 165.

6. Legislative debate continues on collateral matters, for instance, imposing a prohibition on the use of foreign assistance funds for abortion as a method of family planning; excluding fetal research from federally-funded research projects, etc. See National Pro-Life Information Service Bulletin, Nov. 29, 1973.

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have to resolve their doubts. Either they opt for retaining permissive abortion as a solution to "the profound problems of the present day" (assuming that it is a solution at all), or seek to deal with the problems in some other way.

This article is primarily addressed to those who occupy that critical middle ground. Because some have an imprecise impression of what the abortion decisions really mean to unborn children, a brief paragraph on that subject is included. Because some have an imperfect conception of the full qualitative humanity of unborn children, a more detailed factual exposition of relevant pre-natal science is set forth. Given who unborn children are and the fatal effect the abortion decisions have had upon them," the next step is to expound the two principal "Human Life" constitutional amendments, presently pending in Congress, both of which are designed to guarantee the right to life and the equal protection of the laws to unborn children. Let me state parenthetically that it is not my intent to reargue, either on a jurisprudential or a constitutional plane, the issue of whether unborn children, at all stages of gestation, are legal persons possessed of fundamental rights. I have done that elsewhere.10 Rather, I assume that those to whom this article is primarily addressed will, at least after confirming in their own minds the living, individual humanity of unborn children and the import of the abortion decisions, concede that the unborn child has a certain fundamental right to life (of which the Supreme Court failed to take cognizance) and that the intent of the proposed Human Life Amendments is to gurantee and protect that right to life. Thus the final portion of the article is addressed to the crux of the seeming dilemma: the balancing of

7. "It [abortion] is known to be a dangerous act, generally producing one and sometimes two deaths.-I mean the death of the unborn infant and the death of the mother." State v. Moore, 25 Iowa 128, 131 (1868) (emphasis added). "To attempt to produce an abortion or miscarriage, except when necessary to save the life of the mother, under advice of medical men, is an unlawful act, and has always been regarded as fatal to the child and dangerous to the mother." People v. Sessions, 58 Mich. 594, 596, 26 N.W. 291, 293 (1886) (emphasis added). "I conclude that at common law the act of producing an abortion was always an assault, for the double reason that a woman was not deemed able to assent to an unlawful act against herself, and for the further reason that she was incapable of consenting to the murder of an unborn infant. . . State v. Farnam, 82 Ore. 211, 217, 161 P. 417, 419 (1916) (emphasis added).

In speaking of abortion, some find it more comfortable to use the term "foetus" instead of unborn child or infant. However, a foetus is "an unborn child. An infant en ventre sa mère." BLACK'S LAW DICTIONARY 771 (Rev. 4th ed. 1968).

8. See Byrn, Abortion-on-Demand: Whose Morality?, 46 NOTRE DAME LAWYER 5 (1970).

9. See Byrn, An American Tragedy: The Supreme Court on Abortion, 41 FORDHAM L. REV. 807 (1973).

10. Lest there be any misunderstanding, it is the writer's view that the Supreme Court's abortion decisions were premised on multiple and profound misapprehensions of law and history which, in turn, led the court to conclude erroneously that unborn children are not persons within section one of the fourteenth amendment. Id.

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the right to life against apparently competing social interests. More specifically, I have concentrated on the weight that courts have heretofore given these social interests when a law promoting the interests has abrogated a fundamental right of members of a particular class, who in turn have claimed that the subordination of the right has operated to deny to them the equal protection of the laws. How courts have resolved these conflicts between social policy and fundamental rights may be of significant assistance in formulating a position on the Human Life Amendments.

I. WHAT DID THE SUPREME COURT Do?

The judgments passed by the Supreme Court on the nature and the rights of unborn children are contained principally in Roe v. Wade. These may be summarized as follows: Because of purported lack of "consensus" in the disciplines of "medicine, philosophy and theology," the Court refused to resolve the question of whether an unborn child is a live human being,12 but nevertheless proceeded to reduce the unborn to the status of "potentiality of human life."13 This "potentiality," according to the Court, does not qualify as a person as that word is used in section one of the Fourteenth Amendment.14 Consequently an unborn child has no constitutionally cognizable right to the law's protection at any stage of gestation. Given, as the Court held, that the right of privacy includes the right to abort,15 and that there is no compelling state interest in protecting the "potentiality of human life" prior to viability,16 a state may not enact legislation, designed to protect the unborn child from an abortion under medical auspices, unless that legislation excludes the previability period of gestation. It must be emphasized that since the state "may, if it chooses"18 enact such legislation; it may also, if it chooses, enact no protective legislation at all. Even in the area where the state may legislate to protect the unborn child, i.e., the period of viability, an exception must be made for an abortion necessary to preserve the life or health of the mother.19 Health was broadly defined in Doe v. Bolton20 to include "all factors-physical, emotion

11. 410 U.S. 113 (1973). I have analyzed the decision in more detail in Byrn, supra note 9. at 809-13.

12. 410 U.S. at 159.

13. Id. at 162. 14. Id. at 158.

15. Id. at 154.

16. An unborn child is said to be viable when it is "rotentially able to live outside the mother's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks." Id. at 160 (footnotes omitted). Actually viability is now usually placed at nineteen to twenty weeks. See note 60 and accompanying text infra.

17. 410 U.S. 164-65.

18. Id. at 164.

19. Id. at 165.

20. 410 U.S. 179 (1973).