decisions and to enact legislation to implement the rights of the father and of the unborn child safeguarded by that amendment.

At this juncture legislation by Congress addressed at least to the rights of fathers of unborn children in the exercise of its power granted by the Thirteenth Amendment would greatly help to shape the issues that must be decided eventually by the courts. It would put the power and majesty of the Congress behind the only supportable interpretation of the Thirteenth Amendment with respect to the rights of fathers of unborn children. Such legislation would draw the battle lines for human dignity a little tighter and give the people an ally which they have often had when the Supreme Court has made such horrendous decisions as Dred Scott, Wade, and Bolton. It could make the difference in the ultimate battle. ACT TO AUTHORIZE DIVORCES IN THE DISTRICT OF COLUMBIA-12 STAT. 59-60 (1860)

CHAP. CLVIII.-AN ACT TO AUTHORIZE DIVORCES IN THE DISTRICT OF COLUMBIA, AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the United States of America and Congress assembled, That the circuit court for the District of Columbia shall have jurisdiction of all applications for divorces, to be made by petition, upon which the same proceedings shall be had as are had in other cases, except so far as is otherwise hereinafter provided.

SEC. 2. And be it further enacted, That the petition for a divorce shall specify the causes therefor with certainty; and upon the same being filed, the clerk shall issue summons for the defendant to appear and answer. If it shall appear by the affidavit of a disinterested witness that the defendant is a non-resident of this District, or has been absent therefrom for the space of six months, the circuit court, after the return of one summons not found, may authorize notice of the pendency of the petition, to be given by publication, in such manner as it shall direct. The court shall proceed to hear and determine such cause, whenever such summons shall have been served twenty days, or such publication made forty days before the commencement of the term. No judgment for a divorce shall be rendered on default without proof; nor shall any admissions contained in the answer of the defendant be taken as proof of the facts charged as the ground of the application, but the same shall in all cases be proved by other evidence.

SEC. 3. And be it further enacted, That a divorce a vinculo matrimonii, from the bond of marriage, may be granted in any of the following cases, to wit:

First. Where such marriage was contracted whilst either of the parties thereto had a former wife or husband living, unless the former marriage shall have been lawfully dissolved, and no restraint shall have been imposed on the party contracting such second marriage.

Second. Where such marriage was contracted during the lunacy of either party, or where either party was matrimonially incapacitated at the time of the marriage.

Third. Where either party has committed adultery during the marriage.

SEC. 4. And be it further enacted, That a divorce a mensa et thoro from bed and board may be granted for either of the following causes, to wit: cruelty of treatment, endangering the life or health of one of the parties; reasonable apprehension, to the satisfaction of the court, of bodily harm; the wilful desertion and abandonment by the party complained against of the party complaining for the full uninterrupted space of three years.

SEC. 5. And be it further enacted, That no divorce shall be granted for any cause which shall have occurred out of this District, unless the party applying for the same shall have resided within the District for two years next preceding the application.

SEC. 6. And be it further enacted, That upon the dissolution of a marriage on account of either of the parties having a former wife or husband living, if it shall appear that the second marriage was contracted in good faith by the party whose second marriage has been thus dissolved, and with the full belief on his or her part that the former wife or husband was dead, that fact shall be stated in the judgment or sentence of divorce; and the issue of such second marriage, born or begotten before the commencement of the suit, shall be deemed to be the legitimate issue of the parent who, at the time of the marriage, was capable of contracting.

SEC. 7. And be it further enacted, That upon the dissolution of a marriage on account of the lunacy of either party at the time of such marriage, the issue of the marriage shall be deemed to be legitimate.

SEC. 8. And be it further enacted, That a divorce for causes not hereinbefore specially provided for, shall not affect the legitimacy of the issue of the marriage; but the legitimacy of such issue, if questioned, shall be tried and determined, according to the course of the common law.

SEC. 9. And be if further enacted, That in all cases where a divorce is granted, the court allowing the same shall have power, if it see fit, to award alimony to the wife, and to retain her right of dower, and to award to the wife such property, or the value thereof, as she had when she was married, or such part, or the value thereof, as the court may deem reasonable, having a regard to the circumstances of the husband at the time of the divorce. The court may also, in granting a divorce a vinculo matrimonii, restore to the wife her maiden or other previous

name.

SEC. 10. And be it further enacted, That the court shall also have power to order and direct, in every case of divorce, who shall have the guardianship and custody of the children of the marriage so divorced, and who shall be charged with their maintenance.

SEC. 11. And be it further enacted, That the court may also award alimony to the wife for her sustenance during the pendency of a petition for a divorce filed for any of the causes aforesaid.

SEC. 12. And be it further enacted, That, in case of adultery by the wife, committed after judgment or sentence of divorce a mensa et thoro, the court may, on the petition of the husband setting forth and accompanied by legal proof of such adultery, deprive the wife of alimony from the date of her said criminal act, and rescind her right of dower, as well as dispossess her, if the court judge fit, of the care, custody, and guardianship of any child or children, which, under the original judgment of the court in granting the divorce, may have been assigned to her.

SEC. 13. And be it further enacted, That a wife deserted by her husband may, at any time after such desertion, apply to the court in session, or to either one of the judges thereof, when the court is not in session, for an order to protect any money or other property, real or personal, of which she may have become possessed after such desertion, against her husband or his creditors or any one claiming through or under him; and the court or a judge thereof, as the case may be, if the fact of such desertion be proved by evidence other than that of the wife herself, and that the same was without reasonable cause, and that the wife is maintaining herself by her own industry or property, may make and give to the wife an order protecting her earnings, money, and property aforesaid, real or personal, acquired since the commencement of such desertion, from her husband and all creditors and persons claiming through or under him, and such earnings, money, or property aforesaid shall belong to the wife as if she were a feme sole: Provided, always, That every such order shall, within ten days after the making and giving thereof, be entered by the clerk of the court on the records of the county of Washington, in the District of Columbia; and that it shall be lawful for the husband and any creditor claiming through or under him, to apply to the court in session for the discharge thereof, and he may obtain it if, in the judgment of the court, good cause shall be shown why such order, by reason of fraud or of repugnance to the objects of this section, should not have been first made and given: Provided, also, That if the husband, or any creditor of or person claiming through or under him, shall seize or continue to hold any property of the wife after notice and record of any such order, then the husband or such person shall be liable at the suit of the wife (which she is hereby empowered to bring) to restore to her the specific property, and also for a sum equal to double the value of the property so seized or held after such notice aforesaid; and if any such order of protection be made, th 71 shall, during the continuance thereof, be and be deemed to have been, during such desertion of her, in the like position in all respects with regard to property and contracts and suing and being sued as she would be if a feme sole. APPROVED, June 19, 1860.

FEDERAL ASSIMILATIVE CRIMES STATUTE-14 STAT. 12-13 (1866)

CHAP. XXIV.-AN ACT MORE EFFECTUALLY TO PROVIDE FOR THE PUNISHMENT OF CERTAIN CRIMES AGAINST THE UNITED STATES.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That if any person or persons shall falsely make, alter, forge, or counterfeit; or cause or procure to be falsely made, altered, forged, or counterfeited; or willingly aid or assist in the false making, altering, forging, or counterfeiting any bond, bid, proposal, guarantee, security, official bond, public record, affidavit, or other writing for the purpose of defrauding the United States;

or shall utter or publish as true, or cause to be uttered or published, as true, any such false, forged, altered or counterfeited bond, bid, proposal, guarantee, security, official bond, public record, affidavit, or other writing, for the purpose of defrauding the United States, knowing the same to be false, forged, altered, or counterfeited; or shall transmit to, or present at, or cause or procure to be transmitted to, or presented at, the office of any officer of the United States, any such false, forged, altered, or counterfeited bond, bid, proposal, guarantee, security, official bond, public record, affidavit, or other writing, knowing the same to be false, forged, altered, or counterfeited, for the purpose of defrauding the United States; every such person shall be deemed and adjudged guilty of felony, and being thereof duly convicted, shall be sentenced to be imprisoned, and kept at hard labor, for a period not exceeding ten years, or be fined not exceeding one thousand dollars, or both of said punishments in the discretion of the court.

SEC. 2. And be it further enacted, That if any offence shall be committed in any place which has been, or shall hereafter be, ceded to, and under the jurisdiction of the United States, which offence is not prohibited, or the punishment thereof is not specially provided for by any law of the United States, such offence shall, upon conviction in any court of the United States having cognizance thereof, be liable to, and receive the same punishment as the laws of the State in which such place is, or may be situated, now in force, provided for the like offence when committed within the jurisdiction of such State; and no subsequent repeal of any such State law shall affect any prosecution for such offence in any of the courts of the United States.

APPROVED, April 5, 1866.

ACT FOR SUPPRESSION OF TRADE IN ARTICLES OF IMMORAL USE (UNLAWFUL ABORTION)-17 STAT. 598-599 (1873)

CHAP. CCLVIII.—AN ACT FOR THE SUPPRESSION OF TRADE IN, AND CIRCULATION of, OBSCENE LITERATURE AND ARTICLES OF IMMORAL USE.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whoever, within the District of Columbia or any of the Territories of the United States, or other place within the exclusive jurisdiction of the United States, shall sell, or lend, or give away, or in any manner exhibit, or shall offer to sell, or to lend,or to give away, or in any manner to exhibit, or shall otherwise publish or offer to publish in any manner, or shall have in his possession, for any such prupose of purposes, any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article of an immoral nature, or any drug or medicine, or any article whatever, for the prevention of conception, or for causing unlawful abortion, or shall advertize the same for sale, or shall write or print, or cause to be written or printed, any card, circular, book, pamphlet, advertisement, or notice of any kind, stating when, where, how, or of whom, or by what means, any of the articles in this section hereinbefore mentioned, can be purchased or obtained, or shall manufacture, draw, or print, or in any wise make any of such articles, shall be deemed guilty of a misdemeanor, and, on conviction thereof in any court of the United States having criminal jurisdiction in the District of Columbia, or in any Territory or place within the exclusive jurisdiction of the United States, where such misdemeanor shall have been committed; and on conviction thereof, he shall be imprisoned at hard labor in the penitentiary for not less than six months nor more than five years for each offense, or fined not less than one hundred dollars nor more than two thousand dollars, with costs of court.

SEC. 2. That section one hundred and forty-eight of the act to revise, consolidate, and amend the statutes relating to the Post-office Department, approved June eighth, eighteen hundred and seventy-two, be amended to read as follows:

"SEC. 148. That no obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature, nor any written or printed card, circular, book, pamphlet, advertisement or notice of any kind giving information, directly or indirectly, where, or how, or of whom, or by what means either of the things before mentioned may be obtained or made, nor any letter upon the envelope of which, or postal-card upon which indecent or scurrilous epithets may be written or printed, shall be carried in the mail, and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, any of the herein before-mentioned articles or things, or any notice, or

paper containing any advertisement relating to the aforesaid articles or things, and any person who, in pursuance of any plan or scheme for disposing of any of the herein before-mentioned articles or things, shall take, or cause to be taken, from the mail any such letter or package, shall be deemed guilty of a misdemeanor,, and, on conviction thereof, shall, for every offense, be fined not less than one hundred dollars nor more than five thousand dollars, or imprisoned at hard labor not less than one year nor more than ten years, or both, in the discretion of the judge."

SEC. 3. That all persons are prohibited from importing into the United States, from any foreign country, any of the herein before-mentioned articles or things, except the drugs hereinbefore-mentioned when imported in bulk, and not put up for any of the purposes before mentioned; and all such prohibited articles in the course of importation shall be detained by the officer of customs, and proceedings taken against the same under section five of this act.

SEC. 4. That whoever, being an officer, agent, or employee of the government of the United States, shall knowingly aid or abet any person engaged in any violation of this act, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall, for every offense, be punished as provided in section two of this act. SEC. 5. That any judge of any district or circuit court of the United States, within the proper district, before whom complaint in writing of any violation of this act shall be made, to the satisfaction of such judge, and founded on knowledge or belief, and, if upon belief, setting forth the grounds of such belief, and supported by oath or affirmation of the complainant, may issue, conformably to the Constitution, a warrant directed to the marshal, or any deputy marshal, in the proper district, directing him to search for, seize, and take possession of any such article or thing hereinbefore mentioned, and to make due and immediate return thereof, to the end that the same may be condemned and destroyed by proceedings, which shall be conducted in the same manner as other proceedings in case of municipal seizure, and with the same right of appeal or writ of error: Provided, That nothing in this section shall be construed as repealing the one hundred and forty-eighth section of the act of which this act is amendatory, or to affect any indictments heretofore found for offenses against the same, but the said indictments may be prosecuted to judgment as if this section had not been enacted. APPROVED, March 3, 1873.

C.A. No. 5153

In the United States District Court for the District of Rhode Island

JANE DOE, MARY DOE AND SALLY SMITH, PLAINTIFFS

v.

RICHARD ISRAEL, ATTORNEY GENERAL, AND THE CONSTITUTIONAL RIGHT TO LIFE COMMITTEE, INTERVENOR, DEFENDANTS

BRIEF FOR INTERVENOR, THE CONSTITUTIONAL RIGHT TO LIFE COMMITTEE

MAY 4, 1973.

JOSEPH P. WITHERSPOON

MOORE, VIRGADAMO, BOYLE & LYNCH, LTD.,

Attorneys for the Constitutional Right to Life Committee.

If the General Assembly of Rhode Island has utilized the correct method for examining into the content and meaning of the concept of the "person" as utilized in the Fourteenth Amendment, a method that is incumbent upon any institution of government in our federal system, then the entire focus of constitutional argument becomes quite different from what it has been so far in the decisions involving the validity of abortion statutes. This is not to say, without more, that the General Assembly of Rhode Island in utilizing a correct method of definition has correctly defined the concept of the "person"; it is to say that the General Assembly may well have correctly defined that concept because that body went about the task of definition in the correct way, by addressing itself to the reality of the concrete universe and by seeking to know the reality within it that is the human being or person. Moreover, it is to say that the work of the General Assembly is to be judged in light of the adequacy of its performance of the task of defining or reflecting the reality of the human being or person.

D. THE FRAMER'S VIEW: THE FOURTEENTH AMENDMENT CONCEPT OF THE PERSON-A REFERENCE TO HUMAN BEINGS AS A GIVEN REALITY IN THE CONCRETE UNIVERSE

It is clear beyond the shadow of a doubt that the framers of the Fourteenth Amendment considered the concept of the person which they inserted into the first section of this Amendment, establishing its principal safeguards of the person, to be a concept referring to the reality of the human being or person in the concrete universe. It is equally clear that these framers sought to prevent forevermore in the free society of the United States the situation in which one who is a human being or person in the reality of the concrete universe could be treated as being something less than that reality by any legislature, any court, any executive, or any other authority of government. Let us consider the men who framed the Fourteenth Amendment and their views of the nature of the concept of the person contained in the Due Process and Equal Protection Clauses of the first section of the Fourteenth Amendment. Fortunately, we have ample testimony concerning their views.

The first section of the Fourteenth Amendment was formulated by the Joint Committee Reconstruction of the Congress of the United States, which was established in July 28, 1868. (Joseph B. James, The Framing of the Fourteenth Amendment (Urbana: The University of Illinois Press, 1956) pp. 38-46.) John A. Bingham, Congressman from Ohio, a lawyer of considerable note, one of the prosecutors in trial of those charged with the assassination of President Lincoln, and later to be one of the managers of the impeachment trial of President Andrew Johnson, was one of the chief figures in the framing of the first section of the Fourteenth Amendment. It was due to his proposal that the committee very early inserted the protections of that section in favor of "persons" with respect to according them due process and equal protection of the laws. Id. at 48. Other principal participants in the drafting of the Amendment from the House of Representatives included Thaddeus Stevens, the Republican Radical leader and lawyer from Pennsylvania who was the Chairman of the House Section of the Joint Committee, and Roscoe Conklin, a lawyer from New York who was later to be appointed to the Supreme Court of the United States. On the Senate side, perhaps the most active Senator in the framing of the Fourteenth Amendment was Jacob M. Howard, a lawyer from Michigan who spoke for the Joint Committee in the Senate in place of the frequently-ill Senator William Pitt Fessenden of Maine, who served as the Chairman of the Joint Committee.

Congressman Bingham in 1861 referred to the Due Process Clause of the Fifth Amendment, and its use of the term "person", in expressing his opposition to the admission of New Mexico as a new state. Later Bingham was to explain his formulation of the first section of the Fourteenth Amendment as being based upon the Due Process Clause of the Fifth Amendment. The theory he elaborated of the concept of the person in 1861 was one that he was to advance again and again in the debates over adoption of the Joint Resolution to submit the Fourteenth Amendment proposal to the states and in the campaign to get it adopted by them. Among the various reasons he gave for his opposition to the admission of New Mexico as a state were its "black codes" and the amendments to the fugitive slave law then under consideration. Bingham stated:

"I object to the admission of slave states under the Constitution. . . . But sir, I would oppose the admission of New Mexico as a State on the further ground that she is not fit to be admitted into the Union as a State until she repeals her unjust legislation. She has today upon her statute-book two slave codes, which would bring blushes to the . . check of Caligula. (one of) which provides that any person may arrest any slave escaping from his master, though he comes from the remotest ends of the earth . . . and, without a hearing before a magistrate, commit him to an American jailor, whose duty it shall be to imprison him six months, and advertise him, at the cost of the American people, for a master; and if no master comes, to take it for granted that he ought to have a master, and imprison him for six months longer, without a hearing; and at the end of twelve months' imprisonment, sell him at the door of your American court-house-at the altar of American justice-to the highest bidder in cash. . . I recognize no bill of sale for a human soul, unless it bears the seal of God Almighty. I object to the amendment proposed (to the fugitive slave law then before Congress), for the further reason that it vests in commissioners unknown to the Constitution, to dispose of the liberty of a human being. You say it is but the liberty of a slave that is involved. I say it is the liberty of a man that is involved; and that the Constitution, in the administration of justice, in the organization of tribunals for the administration of justice, is no respecter of persons. The word 'citizen' in that connection is not