The ultimate level of livingness, that enjoyed by all of us in this room and by all higher forms of animal life, is known as organismal livingness wherein a wholeness, an integrating one-ness and a fixedly interdigitating co-operativeness of all organally living organs in the organism supravene.

The parallels drawn from evolution are striking and they can help us see how the individual organismal livingness emerges by levels:

(a) Molecular livingness is represented by the livingness of the tobacco mosaic virus; here there is no cellular livingness but merely pure living DNA. DNA, in order to be cultured viably, requires a living host agent.

(b) Cellular livingness is paralleled by the uni-cellular organisms such as the amoeba and other protists. These organisms reproduce by simple fission as does the human zygote. They are complete organisms as soon as the parent cell splits into two daughter cells. In order for us to say that "human life begins at fertilization", we would have to describe the hominal organism as we describe these unicellular organisms. To do so is scientific absurdity.

(c) Colonial livingness is demonstrated by the serial emergence of Volvox and the Porifera sponges. Here individual cells of similar form aggregate in clusters without any real formation of organs by which the cluster is served.

(d) Organal life is manifested by the emergence of the flatworms (which possess the capacity to elaborate their cells into unsystematized organs) and next the Proboscis worms which are the simplest organisms with systematized organs. (e) Organismal life at the multi-cellular level, such as is seen in all higher forms, is represented by all later evolutionary forms. (N.B. All living organisms possess organismal livingness, from the lowest form to the highest, but in the highest forms of life none of the first four levels constitutes organismal livingness as it does for the more primitive forms.)

From what has gone before, we are now prepared to define the biological homo (the hominal organism). Except for those matters describing human parentage, we could be describing a rabbit, a whale, a kangaroo or any other higher animal order.

Definition 2.-A biological home is a living hominal organism.

Definition 3.-A living hominal organism is a fixedly sealed distinct entity, parented by members of the order Homo sapiens, capable currently and controlledly of carrying out, either mediately or immediately, the minimal vital activity adequate to sustain itself at the highest level of livingness natural to the species.

It must be remembered that we are defining organisms in general and hominal organisms as a member of the class. It makes no sense to describe the human organism biologically except as a member of the higher multi-celled animal order. It can be seen that the general definition fits all organisms if all reference to hominal parentage is removed. We now must examine the cardinal words in this definition: (a) Currently: this is necessary because of the serial emergence and disappearance of the levels of livingness. We cannot re-kill an organismally dead trauma victim in the emergency room by destroying the organal, colonial, cellular or molecular life left in it. Similarly we cannot pre-kill any organismally living hominal organism prior to the emergence of all levels of livingness natural to the order Homo sapiens.

(b) Mediately: this is necessary in order to include those organisms which require placentation, predigestion, suckling, premastication etc. It is also needed to include those organisms, mainly human, who survive by medical adjuvants (intravenous feedings, heart-lung machines, respirators, dialysis, pacemakers etc.) which mechanically duplicate the natural adjuvants afforded the very young.

(c) Minimal: this is necessary as a qualifier, and is probably already nearly fixed. Man can live without many of his organ systems and organs. There is the possibility of startling new discoveries in the sustaining of organismal life but as we draw close to cardiac activity and cellular respiration as minima there do not appear to be any new adjunctive frontiers possible.

(d) Distinct: an organism has a sealed individuality wherever it is encountered in biology above uni-cellular orders.

I believe we can now begin to explore the comparisons between a human zygote and a hominal organism. The zygote is human and it possesses both molecular and cellular livingness, but it does not possess colonial, organal or organismal livingness. As a matter of fact, the zygote lives as does the most primitive unicellular organism while the homo lives at the highest level.

(a) The homo is individually sealed; the zygote is not.

(b) The homo is sealedly differentiated; the zygote will not be sealedly differentiated for some three weeks.

(c) The homo, at maximally possible metabolic equilibrium, lives off the present; the zygote lives off a past maternal donation for about three weeks.

(d) The homo replaces lost cells; the zygote cannot.

(e) The homo grows; the zygote cannot metabolize even simple sugars for three weeks, hence it cannot and does not grow.

(f) The homo moves at about three weeks; the zygote cannot.

(g) The homo reproduces by cell differentiation and specialization; the zygote reproduces like an amoeba, by fission.

(h) The homo codes its own genome after about three weeks; the zygote's genome is maternal for about three weeks.

(i) The homo is hemotrophic after 3 weeks; a zygote is histotrophic.

(j) The homo is heterotrophic; the zygote is autotrophic.

(k) The homo is heterophagic, the zygote autophagic.

(1) While this list can go on, the differences can be summed up by stating that the livingness of a homo and that of a zygote are so categorically different that it is impossible physically to kill a hominal organism by the means adequate to kill a zygote and it is impossible to kill a zygote by the means necessary for killing an organism.

(m) Not just the hominal organism but all multi-cellular organisms possess fixed form, polarity, axiality and symmetry; the zygote lacks these for the first 3 weeks.

We can move from these unalterable facts of biology pertinent to organismality to the notion of homicide, as defined above, as certainly demonstrable empirically in any adult murder or manslaughter cases. The physiological criteria by which medical science describes the organismal death of any homicide are operative at a point about three weeks after fertilization and no sooner. Biological homicide is simply and categorically not possible prior to this time any more than it is possible after organismal livingness has left the body of the trauma victim in the emergency room situation cited above no matter how much sub-organismal livingness is present in the protoplasm.

Definition 4.-Abortion is the dislodgement of a functionally implanted hominal organism from the uterus prior to extra-uterine survivability. It is directly, adequately and necessarily a homicide.

From this definition it can be seen that it is not an abortion to intervene in the reproductive process prior to the acquisition of organismal vital capacity by the zygote. Neither is it an abortion or a homicide to dislodge from the uterus an implanted hydatidiform mole, a chaotic cell mass, a blighted conceptus or any teratomatous cell conglomerate resulting from fertilization. None of these entities is an organism nor is any of them hominalized. They are derived from human parentage; they posses livingness at the molecular, cellular and colonial levels, and some possess organal livingness, but none possesses organismal livingness. Although "human" and unique chromosomally, they are not homines. Because of this last notation we must immediately pass to a definition of pregnancy. Not everyone participating in the biological deliberations of the Subcommittee has been careful to make the proper distinctions in this area. The reproductive process is not coincipient, co-existent and coterminous with pregnancy. Interventions into the reproductive processes are not all interventions into a pregnancy.

In a typical cycle of multi-cellular organismal reproduction in the higher animal forms we see the following. The maturing organism developes specialized organs and cells known as sperm and ova. By a coital act these male and female cells are brought into conjunction, fuse to form a zygote and are activated at fertilization. The zygote, which may or may not have the intrinsic capacity for subsequent organismicization, undergoes that organismicization serially through the process of cleavage, differentiation and the closing of its sealed individuality as an organism. It later must acquire access to a continuing source of biological sustenance in order to mature into the stage where it can develop specialized organs and cells for the next cycle to begin.

Pregnancy is a subset of the reproductive process. One is not pregnant if the product of fertilization is a mole or a blighted cell mass, even if these entities are implanted to a degree. One is not pregnant if implantation is impossible as in a diseased or cancerous uterus or acutely inflamed uterus, no matter how many ova become fertilized by coitus. For a pregnancy to be in effect, implantation must be intact and functional and that which is implanted must be hominizable.

As things work out, some few pregnancies (a vastly minority number) are comprised of a functionally operative implantation and an eventually non-hominizable entity such as a teratomatous, chaotic cell mass which is in no sense an organism. On some occasions there is involved an organism incapable of any future specifically human activity (anencephalic monsters). While a woman can-medically-be "pregnant" with a mole or teratoma or choriocarcinoma or chaotic cell mass, this is not pregnancy in the sense of "woman with child", the sense in we are discussing abortion as homicide. These "pregnancies" of the non-hominal variety are not abortable; they are treatable but not abortable in the strict sense. Obviously if a pregnant women-in the medical sense-can be shown to be bearing a non-hominal entity within her, no homicide is possible no matter what the treatment, for the woman is not pregnant in the homicidable sense.

Definition 5--Pregnancy is that portion of the hominal reproductive process wherein a female organism bears within her a functionally implanted hominal organism.

The biological time schedules work out in such an interdigitating manner that implantation becomes functionally intact at about the time organismicization occurs. The general calculus of justice would rightly protect all possibly hominal conceptuses despite the fact that a rare conceptus-although not demonstrably non-hominal before birth-will prove to be non-organismicized at birth. It must be made clear that while the loosely constructed jargon of physicians might describe a woman who has generated a mole within her as being "pregnant' the more precise word usage will employ the term "pregnant" only in the classical sense wherein a woman can be pregnant only with a child of the next generation in the ongoing reproduction of the race of man. The same distinctions would apply to the woman "pregnant" with a teratoma or chaotic cell mass (amorphous monster) or placental neoplasm.

How can we reduce all of this biological data to a level where it is of practical significance to the Sub-committee? Reduced to readily understandable dimensions, the significance of the biological data is this:

(a) Anti-abortion statutes and Family Planning Programs. The prevention of implantation is not a homicidal act. Abortion is homicidal (as defined). The use of the IUD, the "morning-after pill" and the pre-implantational uterine curettage cannot be considered (biologically) as either abortional or homicidal.

(b) The Rape-induced pregnancy. The populace of the United States is not receptive to any anti-abortion amendment which, by protecting pre-organismal zygotes as though they were hominal organisms of which homicide were possible would deny to raped women the opportunity to be protected from the engendering of a subsequent pregnancy after a forceful rape. These medically protective measures are simply not homicical in the biological order for they do not deprive a hominal organism of organismal life at the time of the acts, no matter how much anticipation of a possible subsequent hominization of the zygote enters into our deliberations for purposes of civil law.

(c) Contraception versus abortion. In order that clarity prevail, interventions into the reproductive process must be identified as being either homicidal or non-homicidal. Those acts which prevent ovulation or fertilization and those acts which prevent implantation are not homicidal and are not to be confused with acts which deprive organismal livingness from a hominal organism.

Finally, the wording of the Human Life Amendment. The Amendment is patently anti-homicidal. It is within the tradition of "Thou shalt not kill" that we are all framing this amendment. No culture, no ethos, no state, no theology and no jurisprudence in the history of man has ever defined the prevention of implantation as a homicide. Women have for countless centuries-understood exactly what is an abortion; it is the dislodgement of a fully implanted conceptus. For this Congress to define the prevention of implantation as a homicide is biologically erroneous. For it to define the prevention of implantation as abortional is to go against the phenomenology of everything historical, cultural and scientific contributing to our perceptions as a people. We have a long scientific, cultural, jurisprudential and religious tradition identifying abortion as homicidal. We have temporarily fled from that well-founded and empirically true tradition in our current cyclical swing into abortion as a social fad but the facts of biology and the compulsions of instinct will prevail in the long run. Abortion is a homicide after about the third week after fertilization.

Any Human Life Amendment must be consistent with the general notions of homicide operative in our jurisprudence. We do not protect human life (hominal organisms) absolutely. There are certain biologically identifiable homicides that our jurisprudence ordains, permits neutrally or tolerates actively. The homicide of

abortion can be tolerated and permitted in a certain few situations without doing violence to our ethical-jurisprudential substrate. Under the equal protection clause of the XIVth Amendment we can permit the homicide of the unborn homo on the same (or most nearly possibly identical) grounds whereby we ordain, permit or tolerate any biological homicide. Many Americans are opposed to the abortion of unborn children willy-nilly in our land. They do want a method of relief to be available to the rape victim. They do not understand the prevention of implantation to be homicidal in biological content. In addition, they sense the wisdom of the adage that freely consenting adults are responsible for the consequences of their freely chosen acts. They see willy-nilly abortion as a flight from responsibility. Yet they are capable of envisaging a few highly tortured and complex situations where an abortion, while not done to save a life, would save a value that approaches extremely closely to the value of saving life itself. In similar circumstances our people are willing to consent-sadly and reluctantlyto any homicide and thus to an abortional homicide.

The wording of the amendment, therefore, should attempt to contain the biological data and the consistencies of our jurisprudential approach to all homicides.

(a) It should define homicide biologically.

(b) It should permit pre-organismal interventions into the reproductive process in its proscriptions. These acts are not homicidal.

(c) It should permit organismally homicidal abortions after the third week after fertilization only under grounds by which all homicides are ordained or tolerated without civil punishment. The invocation of the equal protection clause of the XIVth Amendment is operative here.

Because the term "person" is used in the Vth and XIVth Amendments, we need a final definition.

Definition 6.-A person is any hominal organism in which there cannot be shown a complete absence of any capacity, present or future, for any rational acts pecifically characteristic of Homo sapiens.

The Amendment:

1. Regarding the human right to life, the word "person" in this article of amendment and in the Fifth and Fourteenth amendments to the constitution of the United States shall be construed to mean any hominal organism in whom cannot be certainly shown an absence of any capacity for any future acts characteristic of rational Homo sapiens. This organismicity shall be presumed to be present no later than the commencement of spontaneous cardiac contractions in the organism or twenty-one days after fertilization as calculable by standard medical computations.

2. All hominal organisms, and their unborn progeny who have achieved biological organismality as described in Section 1, shall be equally protected under the law and shall not be deprived of life except by due process and with equally operative grounds in any ordination, permission or tolerance of homicide as adjudicated either before or after the fact of biological homicide.

3. The Congress and the several states shall be enpowered to enforce this amendment by statutory law not subject to overthrow by the judiciary, as provided by Article 3, Section 2 of the Constitution of the United States.

The thrust of the "justifiable abortional homicide" is fully consistent with the fundamental American jurisprudential notions of equality before the law. No judge will permit an abortion on trivial grounds such as "convenience", "desirability", "mental health" of the killer or "unwantedness" of the victim. Every abortional homicide pre-adjudicated to be justifiable by a judge will establish grounds by which any conviction for homicide thereafter an be appealed.

There are certain homicides involving an innocent victim. When these homicides are adjudicated after-the-fact, only those grounds which impress the jury as being the equivalent of saving life or as actually saving life are acceptable as justifying homicide. This notion of co-equally justifiable homicides places the burden of justification upon the evidence, the judge and the jury. If merely trivial grounds can justify an abortional homicide, they can be appealed to as justifying any subsequent homicide. The American judiciary, its juries and its people will be forced to be extremely wary of justifying abortional homicide before-the-fact for they will also be justifying-on the same grounds-all future non-abortional homicides pleaded on the same grounds. This notion, I believe, is the equivalent of a Kantian categorical imperative framed within the equality of protection provided by the XIVth Amendment. Only the tyrant and the bully are afraid of the notion of the equality of all hominal organisms.

Upon reflection it is apparent that there are certain small problems with the procedural and implementational dimensions of the amendment proposition spelled out above, but they are certainly no greater than those encountered in many aspects of criminal or procedural law. We need not fear these. They are minor and superable, and-if insuperable-quite tolerable. What we must fear, what we cannot tolerate are the notions of unequal hominal organisms and of "unwanted" hominal organisms. Both of these notions are alien to the precious substrate of American jurisprudence, ethics and humanitarianism. Again, nothing is more foreign to our Americanism than the notion of inequality of hominal organisms; this, again, is a notion which only the tyrant and the bully can embrace. The pure science of biology will not, because it cannot, support any such notion of inequality after organismicity is achieved by nascent human beings at or about the time of the completion of functional vital implantation of organismalized homines. All subsequent accruals to the organism are those of metamorphosing form and emerging functional capacity, neither of which speaks to the vitality of the developing human being whose development is not complete until long, long, long years after actual birth.

STATEMENT OF SENATOR HATFIELD

Mr. Chairman: I commend the Subcommittee on Constitutional Amendments for scheduling this hearing on alternatives to abortion. Those who feel any inclination to place restrictions on abortion must deal very seriously with the remaining options available to those who now seek abortions. After all the medical, social and ethical issues have been examined in this debate, we must come to the place of answering the question, "If abortion is not be to readily available, what will we offer in its place?"

There is a regrettable tendency among anti-abortionists to adopt a punitive attitude toward a woman with a problem pregnancy. The position taken is that the woman got herself into this problem, so let her get out of it. Let her carry the child, no matter how she feels. Let her face the economic and physical costs of childbirth and the many demands of raising the child to maturity. It is this position which quite properly is opposed by the pro-abortionists and advocates for women's rights. It is the spirit of retribution which must give way to a blend of humane consideration of the woman's needs along with the right of the unborn child to live.

There is a serious fallacy in the arguments of pro-abortionists-the inevitable tendency to begin the discussion of abortion at the point of conception. Repeatedly, the assumption is made that pregnancy is something which was done to the woman, quite beyond her control. The woman is seen as a helpless victim of the process of development of the life within her. But, what about the options available to prevent conception, when for completely justifiable reasons she does not wish to become pregnant?

The choice is not between sexual abstinence and abortion. The obvious middle way is the sensible and careful use of any of a great number of birth control methods. For those who wish to shun a particular method because of concern over undesirable side effects, or personal inconvenience, there are other alternatives. During earlier hearings before this Subcommittee, post-conception birth control methods were dealt with. The position of some has been that a consistent respect for life requires prohibiting any birth control method such as intrauterine devices which prevent implantation of a fertilized zygote. Closely connected with this presumed problem is the treatment of a rape victim, the perpetual red herring issue of the abortion debate.

Dr. James Diamond, a medical doctor from Reading, Pennsylvania, submitted an excellent statement to the Subcommittee for its hearing on May 9, 1975. In it, he pointed out that biological science has added a great deal to our understanding of the transitional stages between "livingness" and "non-livingness." The lay person keeps asking "When does life begin?" The scientist says, "The life of a human being begins in stages, just as it frequently ends in stages." Apart from the instantaneous death of an accident victim, medical personnel can tell you when a person is dead by pointing out the lack of vital signs-a flat EEG, dilated fixed pupils, etc. But even after death or the end of what Dr. Diamond called "organismal livingness," the body goes through other stages of dying, from "organal," to "colonial," to "cellular," and to "molecular."

These subtleties of definition, though beyond the understanding of most lay persons, mean a great deal for clarifying the stages of early development of human life. Instead of forcing the anti-abortionist into some sort of ridiculous consistency,