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al, psychological, familial, and the women's age-relevant to the wellbeing of the patient." It is a rare physician who will be unable to justify the procedure under this definition of health.22 For all practical purposes, the Supreme Court has banned any legislation that would effectively protect unborn children from abortion.

II. WHO AND WHAT ARE UNBORN CHILDREN?

In December, 1971, the writer, represented by counsel, commenced a class action as guardian ad litem of unborn children presently scheduled, or to be scheduled, for abortion in municipal hospitals of the City of New York.23 The complaint24 sought inter alia: first, a declaration that New York's permissive abortion statute25 was "in violation of the Constitution of the United States and the Constitution of the State of New York;"26 secondly, a declaration that the statute was "null and void and of no effect" as a result of which New York's prior abortion law27 "was neither repealed nor amended and remains in full force and effect;"28 and thirdly, permanent and temporary injunctions restraining the municipal hospitals of the City of New York from performing abortional acts "for reasons other than those necessary to preserve the life of a pregnant female."29

21. Id. at 192.

22. See, e.g., REPORT OF THE GOVERNOR'S COMMISSION APPOINTED TO REVIEW NEW YORK STATE'S ABORTION LAW, MINORITY REPORT 47, 75-77 (1968) [hereinafter cited as MINORITY REPORT] (discussion and critique of "psychiatric" abortions).

23. See Byrn v. New York City Health & Hosps. Corp., 38 App. Div. 2d 316, 329 N.Y.S.2d 722 (2d Dep't), aff'd, 31 N.Y.2d 194, 286 N.E.2d 887, 335 N.Y.S.2d 390 (1972), appeal dismissed, 410 U.S. 949 (1973).

24. For a reproduction of the complaint, see Jurisdictional Statement of Appellant at 79a-99a, Byrn v. New York City Health & Hosps. Corp., 410 U.S. 949 (1973) [hereinafter cited as Jurisdictional Statement].

25. N.Y. PENAL LAW § 125.05 (3) (McKinney 1973-74 Supp.), amending N.Y. PENAL LAW $ 125.05 (3) (McKinny 1967). The statute reads:

26.

"Justifiable abortional action." An abortional act is justifiable when committed uron a female with her consent by a duly licensed physician acting (a) under a reasonable belief that such is necessary to preserve her life, or, (b) within twenty-four weeks from the commencement of her pregnancy. A pregnant female's commission of an abortional act upon herself is justifiable when she acts upon the advice of a duly licensed physician (1) that such act is necessary to preserve her life, or, (2) within twenty-four weeks from the commencement of her pregnancy. The submission by a female to an abortional act is justifiable when she believes that it is being committed by a duly licensed physician, acting under a reasonable belief that such act is necessary to preserve her life, or, within twenty-four weeks from the commencement of her pregnancy. Jurisdictional Statement 90a.

27. Prior to the 1970 amendment, the New York Penal Law permitted abortion by a duly licensed physician only if he were "acting under a reasonable belief that such is necessary to preserve the life of such female." N.Y. PENAL LAW § 125.05 (3) (McKinney 1967), as amended, N.Y. PENAL LAW § 125.05 (3) (McKinney 1973-74 Supp.).

28. Jurisdictional Statement, supra note 24, at 90a. A declaration of the nullity of the existing New York statute would have restored the law as it existed prior to the 1970 amendment. See People ex rel. Farrington v. Mensching, 187 N.Y. 8, 79 N.E. 884 (1907).

29. Jurisdictional Statement, supra note 24, at 90a-91a.

60-577 - 76 PT. IV - 13

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The members of the class of unborn children for whom the writer was appointed guardian ranged in age from the fourth to twentyfourth week of gestation.30 An unborn child in the fourth week was chosen as the youngest member of the class because at the time the action was commenced, abortions were not performed in municipal hospitals without a confirmed pregnancy test.31 The oldest member was twenty-four weeks because an abortion beyond the twentyfourth week remained criminal under the New York statute, unless, in the reasonable judgment of a physician, it was necessary to preserve the mother's life.32 The statute was challenged on the ground that it violated various fundamental rights of the members of the class qua human-legal persons,33 chief among which were the rights to life and to the equal protection of the laws.

Affidavits of a fetologist, a developmental biologist, a cytogeneticist, and an obstetrician-gynecologist were submitted by plaintiff in support of a motion for an injunction pedente lite.34 Plaintiff marshalled this expert testimony in order to present to the court a composite picture of the unborn child as, in all factual respects, a live human being, no different qualitatively from his post-natal sibling. The picture was drawn by secular scientists-unclouded by the competing value (as opposed to factual) judgments of the various schools of philosophy, theology and the social sciences. It was felt that our law, at least since ratification of the fourteenth amendment, has sought to protect the fundamental rights of live human-beingsin-fact; protection is not meted out or withheld on the basis of a currently popular, fundamentally sectarian, thesis of intellectuals that the life of an individual or a class of human beings is either more or less valuable, or not valuable at all. The only acceptable course, in a pluralistic society dedicated to the preservation of unalienable rights and committed to the ideal of fundamental human equality, is to start out valuing all persons equally, and this is what

30. Id. at 81a-83a.

31. Id. at 34a. The usual pregnancy test will not yield an accurate result in the third week. Byrn, supra note 8, at 7. A newly developed test "can detect conception within eight days after ovulation-about five days before the woman's expected menstrual period." N.Y. Times, Dec. 20, 1973, at 25, col. 1. Ironically, this new test for the presence of a living human being is being touted as helping "to take the guesswork out of such decisions as when is the best time to perform an abortion and what is the safest method to use."

Id.

32. See note 27 supra. A material lifesaving abortion can generally be justified under the principle of "legal necessity" which applies also to postnatal human beings. See Byrn, supra note 9, at 853-54.

33. Jurisdictional Statement, supra note 24, at 87a-90a.

34. The experts were Leverett Lebaron de Veber, M.D. (fetologist). Donald J. Procaccini, Ph. D. (developmental biologist), James Garner, Ph. D. (cytogeneticist), and A. Malcolm Hetzer, M.D. (obstetrician-gynecologist) [hereinafter referred to respectively as de Veber, Procaccini, Garner and Hetzer]. Their affidvaits are contained in Jurisdictional Statement, supra note 24, at 100a-128a.

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It is one thing to be aware of the textbook fact that unborn children are live human beings; it is quite another to appreciate fully that each is as much a human baby as a newborn baby, eight days after birth. The writer would tender here an eight-week, “unquickened,” “nonviable," unborn child (the UNBORN), a typical candidate for abortion, and, juxtaposed to him, an eight day newborn (the NEWBORN). The composite picture of the UNBORN was set out in the affidavits as follows:36

1. The NEWBORN is genetically human; so is the UNBORN.37 2. The NEWBORN is genetically complete, unique and distinguishable from his mother; so is the UNBORN.38

3. The NEWBORN has a strongly beating heart pumping blood through his own circulatory system which is distinct from that of his mother; so does the UNBORN.39 The NEWBORN's blood can be separately grouped; so can the blood of the UNBORN.40 The NEWBORN can bleed; so can the UNBORN.41 The blood pressure

35. See Byrn, supra note 9, at 835-39. Indeed, in the better view of legal history, from Bracton's time onward and possibly before, the criminal law of abortion protected the unborn child from the moment that contemporary science was able to pinpoint his individual, living existence in the womb. Id. at 814-35. However, it was the fourteenth amendment's equal protection clause that, for the first time in American law, elevated the concept of equality to the constitutional plane. 2 B. SCHWARTZ, RIGHTS OF PERSONS 486 (1968). To abandon the idea of equality in favor of selective value judgments on who among us is "human" is a dangerous undertaking. For instance, the theory that blacks are generally genetically inferior and that it might be necessary to sterilize the "genetically disadvantaged" fortunately remains in disrepute. See N.Y. Times, Dec. 5, 1973, at 38, col. 2. (But it has been alleged that sterilizations without consent are being performed. N.Y. Times, July 3, 1973, at 6, col. 2). If the theory became popular, perhaps because of economic convenience or social prejudice, blacks, qua factual human beings cum legal persons, would remain protected by the law, unless their factual humanity and therefore, their legal personhood-were determined by a selective judgment on their "inferior" value, as reflected in contemporary prejudice. Of course, the equal protection clause was intended to avoid just such discriminatory judgments in law.

36. I have elsewhere detailed the facts of life at eight weeks, but these were drawn primarily from medical writings and case law. See generally Byrn, supra note 8, at 7-9. In short, they tended to be abstract while the affidavits of the experts were graphic personal statements from individuals who deal with unborn human lives on a day to day basis in various areas of pre-natal science. One of the medical doctors testifed about his experience in the practice of fetology, which is "a branch of pediatrics which combined with obstetrics has moved both practices backwards into the womb for the care and treatment of patients of all stages of gestation from four weeks to birth." Jurisdictional Statement, supra note 24, at 105a. (de Veber). Among other treatments a fetologist sometimes administers an intrauterine blood transfusion to an unborn child and the child "receives all the care and attention that any baby would receive after birth." Id. at 101a (de Veber). "In a real sense, these babies are my patients, indistinguishable in the womb from when they are born."" Id.

37. Jurisdictional Statement, supra note 24, at 113a (Procaccini). 38. Id.

39. Id. at 102a (de Veber); Id. at 113a (Procaccini).

40. Id. at 101a (de Veber).

41. Id. at 101a-102a (de Veber).

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and heart rate of the NEWBORN are measurable; the same is true of the UNBORN.42 One of the indicia of human death is the irreversible cessation of the spontaneous functioning of the circulatory system.13 Conversly, the presence of spontaneous circulation signifies the presence of life. Both the NEWBORN and the UNBORN are alive.

4. The NEWBORN possesses a well-developed (though not completely developed) brain; so does the UNBORN." The brain of the NEWBORN sends out impulses which are recordable on an EEG; but the same is true of the brain of the UNBORN45, and there is substantial evidence that conscious experience is possible for the latter1 as well as the former. Another of the indicia of human death is the irreversible cessation of the cerebral function as evidenced by a flat EEG. Conversely, the presence of recordable brain impulses signifies the presence of life. Both the NEWBORN and the UNBORN are alive.

5. The NEWBORN has a neural control mechanism, and the muscles and nerves work together; the same is true of the UNBORN.48 Like the NEWBORN, the UNBORN responds to tickling, and reacts to pain.50 Another of the indicia of human death is the clinical absence of reflexes.51 Conversely, the presence of such reflexes signifies the presence of life. Both the NEWBORN and the UNBORN are alive.

6. The NEWBORN moves spontaneously; so does the UNBORN.52 7. The movement of the NEWBORN can be felt by those who carry him; the movement of the UNBORN is not usually felt by the pregnant woman who carries him until the sixteenth week; this is the phenomenon known as quickening.53 The point at which quickening takes place depends upon the sensitivity of the mother and is thus variable.54 "To take quickening as a stage for determining the baby's status as human being is obviously very subjective and archaic since this depends on the mother's sensitivity to the baby moving and yet we know that the baby is actually moving as early as eight to ten weeks."55

42. Id. at 103a (de Veber).

43. Halley & Harvey, Medical vs Legal Definitions of Death, 204 J.A.M.A. 423, 425 (1968).

44. Id. at 103a (de Veber) Id. at 114a (Procaccini).

45. Id.

46. Id. at 114a (Procaccini).

47. Halley & Harvey, supra note 43, at 425.

48. Jurisdictional Statement, supra note 24, at 114a (Procaccini).

49. Id. at 103a (de Veber).

50. Id. at 104a (de Veber).

51. Halley & Harvey, supra note 43, at 424.

52. Jurisdictional Statement, supra note 24, at 103a (de Veber).

53. Id. at 115a (Procaccini).

54. Id.

55. Id. at 103a (de Veber).

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8. The NEWBORN breathes air and the UNBORN breathes fluid; they both breathe.56

9. The NEWBORN "looks like" a live human being, but "those of us who are constantly watching these babies before birth and after birth cannot really distinguish them before or after birth."57 Moreover, the UNBORN looks like the NEWBORN:

I have examined page 2 of Exhibit C annexed to the summons and complaint herein. This is a very accurate and striking picture of a 2 month old unborn baby showing the ears, the eyes, facial features, the hands and feet. In real life this baby would be moving and a heart beat would be visible through the chest wall. He would also react to pain and exhibit various sets of reflexes which would be very similar although possibly not as well developed as a newborn baby in the nursery. The large head reveals a well developed brain with higher centers which obviously continues to develop as the baby grows both in the uterus and after birth. Because there is very little subcutaneous fat this baby like any premature baby would show very striking blood vessels which can be seen in this photograph in the head and also in the legs.58

10. In the current state of technology, the UNBORN is totally dependent upon his mother for nourishment and an environment conducive to continued life (he is "nonviable"), while the NEWBORN though similarly dependent, need not rely on his mother alone, and another may act as substitute for the mother (he is "viable"). This is a distinction without a difference:

(a) Viability is a function, not of the UNBORN, but of the vagaries of technological progress in developing substitute life support systems. "The baby depends on the mother only for oxygen and certain nourishment and this can be just as easily provided by some other support system."59 "The period of viability, the ability of the baby to survive outside the womb, is obviously changing rapidly with advances in medical science. Twenty years ago a fetus under 28 weeks could not survive and yet we now know that babies as young as 20 and 19 weeks survive. New advances will undoubtedly decrease the period further so that the present standard is no more sacred than the four minute mile."60 Twenty years ago a twenty week old child in the womb was not viable; today he may be. Such a child was no less a live human being twenty years ago than his counterpart is today. Today an eight week old child in the womb is not viable; twenty years from now he may be. Such a child is no less a live human being today than his counterpart twenty years from now.

(b) The UNBORN have been described as "astronauts in inner

56. Id.

57. Id. at 102a (de Veber).

58. Id. at 103a-104a (de Veber). The photograph referred to in the testimony (annexed as page 2 of Exhibit C to the complaint, id. at 95a) was extracted from R. RUGH & L. B. SHETTLES, FROM CONCEPTION TO BIRTH 54 (1971). That the UNBORN is in all respects a visually recognizable baby at this point in gestation is beyond dispute. "In pregnancies beyond the seventh week, fetal parts are recognizable as they are removed piecemeal [by abortion]." Guttmacher, Techniques of Therapeutic Abortion, 7 CLINICAL OBST. & GYN. 100, 103 (1964).

59. Jurisdictional Statement, supra note 24, at 102a (de Veber).

60. Id. at 103a (de Veber).