Amicus Curiae Brief — Hodgson v. Minnesota

No. 88-1125

In the Supreme Court of the United States

OCTOBER TERM, 1989

JANE HODGESON, ET A.L.,

APPELLANTS

V.

MINNESOTA, ET A.L

APPELLEES

PETITION FOR A WRIT OF CERTIOARI

10 THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR STANLEY JOHN

° AS AMICUS CURTAE SUPPORTING APPELLEES

ROBERT L. SASSONE

Attorney at Law

900 North Broadway * Suite 725

Santa Ana, California 92701

(714) 547-5611

MOTION FOR LEAVE TO FILE A BRIEF AS

AMICUS CURIAE ON BEHALF OF RESPONDENT

Amicus hereby respectfully moves for

leave to file a brief amicus curiae in

the present case. Requested consent of

parties is expected but has not yet

been received and filed. When filed, it

will make this motion unnecessary.

INTEREST OF AMICUS CURIAE

Stanley John is employed by Focus on

the Family, a Protestant educational

group featuring Dr James Dobson. Focus on

the Family broadcasts on many hundreds of

stations daily. For six months, his arm

has been in first a cast, then a sling

because of an injury he suffered while

being arrested at a rescue. He was not

resisting in any way at any time when

injured.

TABLE OF CONTENTS

ITEM PAGE

MOTION TO FILE A BRIEF AS AMICUS

CURIAE ON BEHALF OF RESPONDENTS AND

INTEREST OF AMICUS i

TABLE OF AUTHORITIES 1ii

SUMMARY OF ARGUMENT Vv

ARGUMENT l

Argentine Opinion June 2, 1989.

I Historic Evolution 2

International Guarantees of the

Right to Life of the Preborn 6

II Position of the Catholic Church ll

(including quotes from early Christians)

The First Right of a Human Being is

His/Her Life 16

III Doctrine of the Supreme Court of

the United States on Abortion 20

IV The Right to be Born 23

V Brief Exposition on the

interpretation of Norms 26

VI The Case at Hand 29

VII Personal Objective and Subjective

Considerations 38

VIII The Law Declares This

Abortion as as Exculpatory Cause 43

IX The Unconstitutionality of the Norm 48

RULING 53

CONCLUSION 53

ii

TABLE OF AUTHORITIES

ITEM PAGE

INTERNATIONAL AGREEMENTS & TREATIES

American Convention of Human Rights

* (8/1/1975) se

American Convention on Human Rights

(11/22/69) 10

American Declaration of Rirhts &

Duties of Man 8

Declaration of the Rights of Children 7

Declaration of Rights of the Child 9

European Conventian to Safeguard the

Fundamental Rights and Freedoms of Man 9

Final Act of the International

Conference on Human Rights 10

Geneva Oath 8

Helsinky Treaty 9

International Code of Medical Ethics 8

International Pact of Civil and

Political Rights 9. 86

International Pact of Economic,

Cultural and Social Rights 9

Nuremburg Treaty 9

Tokyo Treaty 9

Universal Declaration of Human Rights 8

NON INTERNATIONAL AGREEMENT AUTHORITIES

Aguilar, On Crimes and Penalties 26, 27

Anthony, Emperor 3

Argentine Victoria Vera Court Opinion

1-53

Argentine Penal Code 29, 30, 36, 46

Asna, Gimenez de, The Law and the

Crime 44, 45

Balestra, Fontan 32, 33

Bender, Ludovico, Philosophiaris,

Rome, 1947 4, 5

Blasquez, Niceto, El Aborto Ed BAC,

iii

Madrid, 1977 2, 3, 6 SUMMARY OF ARGUMENT

Campos, Bidart, El Derecho 25

Catholic Church ll, 12 Argentine judges can declare laws

Didache 12

Divine Law 18 unconstitutional and Treaties of

Finger, August Lehrbuch des Deutchen

Strafrechts, Berlin, 1904 28 Argentina can affect Constitutional

Graciano, Decree of 14

Griswold v Connecticut (no citation) 21 -questions. This brief consists of one

Innocence XI 15

Lactancio (Rule of) 4 Argentine court opinion, cited not as

Licurgo 3

Lisias (forensic discourse) 3 authority, but for the research and logic

Maguncia, First Council of (847) 14 ,

Manu (laws of) 3 therein. The opinion is relevant for the

Metzger 27

Montesquieu 27 historical analysis and treaties cited.

Nathanson, Bernard, MD 24

Natural Law 18 Initially, abortion history is analyzed

Ovid 3

Paul VI 15, 16 in a manner not previously presented to

Pius XI 15

Pius XII 15 this Court. Subsequently, more than a

Roe v Wade (no citation) 3. Bea. oe

Rostand 5 dozen treaties requiring the signatories

St Augustine 4

St Thomas Aquinas 4, 14 to respect preborn human life in such a

Seneca 3

Severo, Emperor 3 manner as to preclude the legalization of

Sixtus V 14

Soler 36, 37 abortion are cited. The US has signed

Solan

Steven V 14 many of these treaties. Killing any

Suetonio 3

Tertulian 13 innocent human life became unpopular for

Vatican Council II 15, 16

Welzer, Nans Introduction to the a while after the Nazis. Many treaties of

Philosophy of the Law 19, 20

World Medical Association Statements the time promise no such killing. Time

of 1948, 1949, i957, 1968, 1970, 1973,

1974 8, 9 has flown as has the unpopularity.

iv

v

Judicial Branch

of the Argentinian Government

Given in Buenos Aires, Argentina, on the

2nd. day of June, 1989.

CASE _TO BE RULED UPON: Request by

Nelida Victoria Vera-—entered under Docket

No. 28.991, Secretariat No. 156—which

appears on pg. 85/B;

WHEREAS: I must undertake the study of

this request for abortion taking into

account the statement made by QUINTANO

RIPOLLES (Tratado, Madrid, 1962, t, 1, 4-

71): “The fundamental problematic that the

subject of abortion and its unnumerable

facets entail, ranging from the

theological, medical and legal aspects,

and encompassing the literary and

sentimental, renders aburtion into such a

passionate topic, that no other penal law

subject surpasses it... in polemic passion

and diversity of legislative treatment".

Even though in the case at hand we are

dealing with a -concrete event with

circumstances and peculiarities inherent

therein, I cannot forgo the exposition of

the historic evolution and the different

Criteria applied in all the different

thesis in favor of and against abortion.

I. HISTORIC EVOLUTION: Since ancient

times, legislative codes such as the Code

of HAMMURABI, which preceded our times by _

seventeen centuries, fulminated abortion,

assigning severe punishment to it, which

reached even capital punishment in some

cases. Abortion was also penalized by

age-old Assyrian and Babylonian codes,

with the peculiarity indicated by Niceto

Blazquez ("El Aborto", Ed. BAC, Madrid,

1977), that the culprit had to suffer the

punishment, "even if the fetus was

feminine". In each culture the voluntary

interruption of pregnancy was reproved, as

it was in the ancient Hebrew law, as well

as within the dispositions of the Vedas

and in the laws of Manu.

In the Greek culture, it is attributed

to Solon and Licurgo to have ruled against

abortion, and the exegesis of a forensic

discourse by Lisias lead us to believe

there were public judicial actions in

existence in order to protect embryonic

life. Suetonio, Seneca and Juvenal were

prompt to stigmatize such aberrations of

smentsehedned humanity. Even Ovid wrote

anathemas against abortive women in the

light of the evils that their practices

derived for humanity. Likewise, under the

rule of emperors Severo and Anthony, women

who wouid abort were condemned to "exile",

labeled as “extraordinary criminals".

Lactancio’s rule terms abortion as "an

impiety-to place criminal hands upon the

work of the Lord", translating and

coalescing the guiding principle

' =henceforth inexorable— upon which

Christianism would base its secular-

postulate of respect for human life, which

was later on enriched by the doctrinal

contributions of St. Thomas Aquinus and

St... Augustine. The ecclesiastical

magisterium reached the definition of the

intrinsic MALICIOUSNESS OF ABORTION, based

upon the certainty of the existence of a

new human being from the very moment of

conception.

Hence we arrive to the reasoning of

Ludovico Bender, a legal philosopher

(Philosophiauris, Rome, 1947) who points

out that from the point of conception, the

new being-who already has HIS OR HER OWN

LIFE-—experiences only an ACCIDENTAL

evolution, but never any SUBSTANTIAL

CHANGE. And this being will follow the

course of its own evolution, tending

towards an end which is not that of the

mother, but HIS OR HER OWN END.

Likewise, Jean Rostand, Biology Nobel

Prize, asserts: "There exists a human

being from the fertilization of the ovule.

THE HUMAN BEING IS ALREADY COMPLETE IN THE

FERTILIZED OVULE. S/HE IS complete at

that point, with all his/her

potentialities... therefore, any abortion

is, without any doubt a small

assasination". (Word, No. 173, Madrid,

January 1980).

The ‘nasciturus’ is a new individual,

and, unless we denied him/her’ the

definition of humanity and its inherent

rights, we cannot act against him or her.

If we do so, we must be aware that we are

acting as a judge who condemns to death a

man, and that this man is INNOCENT; and

that this judge—which would be us—condemns

him in order to please another human

being, or, in the best of cases, in order

to save her life, her honor or her

. happiness. And this would be to return to

the Nietzscheian philosophy of of the

Super man, and to justify, therefore, the

Nazi concentration camps and gas chambers.

(Cited in Blazquez’ work, pg. 130).

The fundamental truth is, as Prof.

Jerome LeJeune says, is: "...that WITH

ABORTION A HUMAN BEING IS KILLED."

This is stated in several international

agreements which reaffirm the right to

. LIFE, such as the San Jose de Costa Rica

Pact (American Convention of Human Rights,

Aug. 1, 1975), Article Four, Paragraph

One, which says: “Every person has a right

to life, and this right shall be protected

by law from the very moment of conception.

No one can be deprived of his/her life

arbitrarily".

Likewise, Article 19 (of the above-

mentioned document) declares: “Every child

has a right to the protective measures

inherent to his condition of minor, which

are the responsibility of the family,

society and State".

As for the Declaration of che Rights of

Children (United Nations, Oct. 20, 1959),

it says: "The child needs protection and

special care, which include proper legal

protection, both BEFORE, as well as AFTER

his/her birth.

Within these same lines and emphasis,

there is a wealth of international

documents that guarantee the life of those

persons who are in gestation, and even

though this is not the time to comment

upon them, I shall at least make mention

of them:

- American Declaration of Rights and

Duties of Man, approved at the Ix

International American Conference, Bogota,

1948, Article One.

- Universal Declaration of Human Rights,

approved and proclaimed by the United

Nations General Assembly on December 10,

1948, Article Three.

- Geneva Oath. This text is

complementary, within the scope of

medicine, to that of the Universal

Declaration of Human Rights, (Geneva,

1948) and was prepared by the World

Medical Association. The following year,

1949, the International Code of Medical

Ethics was proclaimed. The World Medical

Association published other statements to

this effect in 1957, 1964, 1968, 1970,

1973 and 1974, to which we must add the

Treaties of Nuremberg, Tokio and

Helsinsky; the various national medical

onthology codes, and several manuscripts

from the Red Cross International

Committee.

- European Convention to Safeguard the

Fundamental Rights and Freedoms of Man;

Rome, Nov. 4, 1950, Art. One.

- Declaration of the Rights of the Child;

United Nations General Assembly, Nov. 20,

1959; Preamble and Whereas.

- International Pact of Economic,

Cultural and Social Rights, approved by

the United Nations General Assembly on

December 16, 1966, articles Sixth and

Tenth.

- International Pact of Civil and

.

ee y

Political Rights, approved by the United

Nations General Assembly on December 16,

1966; articles 6th and 24th.

- Final Act of the International

Conference on Human Rights; Teheran, April

22 through May 13, 1968, United Nations,

Title II, Article One, 2nd and 6th

Paragraphs.

- American Convention on Human Rights;

Pact of San Jose de Costa Rica, approved

by the Conference of San Jose de Costa

Rica on November 22, 1969, articles 4 and

19. OUR NATIONAL LAW No. 23.054 enacted

on March lst, 1984, ADHERED TO THE SAME

(above) AND STATED OUR OBLIGATION TO

FULFILL (said Pact) IN ITS ENTIRETY.

- Final Act of the Conference on Security

and Cooperation in Europe, Helsinsky,

August lst, 1975, Title VII.

All of the above was incorporated unto

10

the different provincial constitutions in

an explicit and mandatory manner.

II. Position of hol rch

The Holy Catholic Church, in its

declaration on abortion given by the

Sacred Congregation for the Doctrine of

the Faith through the words of the

Pontifice Sumum on July 25, 1974,

ratifyied, confirmed, and ordered said

declaration to be printed.

In this declaration, the Church fixes

its position on the subject as follows:

"It cannot but cause perplexity to see how

the indiscriminate protests against the

death penalty and against all forms of war

arise everywhere, and simultaneously grows

also the reinvidication for liberalized

abortion, be it entirely or within certain

cases which become incessantly more

11

numerous. We can never invoke freedom of

opinion in order to attempt against the

rights of others, most especially not in

regards to the right to life. It is not

a question of opposing one opinion with

another, but rather one of imparting a

perennial teaching of the Supreme

Magistrate, which exposes the norm of

morality in the light of the faith."

The tradition of the Church has always

Geclared that human life must be protected

and favored from its very beginning as

well as throughout the various stages of

its development. Opposing the custom of

the Greco-Roman’ world, the Church of the

first centuries has insisted upon the gap

that exists on this regard between said

. world and the Christian tradition. It is

Clearly stated in the DIDACHE: "YOU SHALL

NOT KILL the fruit of the womb WITH

12

ABORTION and YOU SHALL NOT KILL the child

who is already born."

Atenagoras notes that Christians

consider women who take medicines to

provoke abortion as homicidal, condemning

those who kill their children-including

theee who are still living in the womb,

“where they are no longer subject to the

Divine Providence alone."

Tertulian affirms the same principle

with clarity: "It is a premeditated

homicide to impede birth, whether the life

was taken upon birth, before or after. He

is a man, the one who is in the process of

becoming one".

Throughout History, the Fathers of the

Church, its pastors and its doctors have

taugh the same doctrine. The diverse

opinions in regards to the precise moment

in which the spiritual soul is infused

13

(within the body) have not created any

doubts as to the illegitimacy of abortion.

Among many other documents, suffice it

to remember just a few. The First Council

of Maguncia, in the year of 847, reaffirms

the penalties decreed against abortion and

determines that strenuous penitence must

be inflicted upon women who provoke the

elimination of the fruit conceived in

their womb".

The Decree of Graciano recalls the

following words from Pope Stephen V: "To

cause death through abortion of one who

had been conceived constitutes a

homicide". St. Thomas, extraordinary

Doctor of the Church, teaches that

abortion is a grave sin, contrary to

natural law. During the Rennaissance,

Pope Sixtus V condemns abortion with even

greater severity. A century later,

14

INNOCENCE XI rejects the propositions of

certain canonical laxists who pretended to

éhepence an abortion provoked before the

time in which some placed the spiritual

birth (animation) of the new being. In

our days, the last roman pontifices have

proclaimed the same doctrine with maximum

Clarity. Pope Pius XI has given an

expiicit answer to the most’' serious

objections. Pius XII has distinctly

excluded direct abortion, that is to say,

one undertaken as a means or end. John

XXIII reminded us of the Early Fathers in

regards to the sacred sseuee of LIFE,

which requires GOD’S creative action from

its beginning.

More recently the Second Vatican

Council, presided over by Paul VI,

condemned ABORTION most severely: "Life

must be safeguarded from conception

15

2p

onwards with maximum care, and ABORTION

and INFANTICIDE are abominable crimes."

The same Paul VI, talking about this

subject on several occasions, did not

' hesitate to repeat that these teachings of

the Church “have not changed and are

immutable".

The respect for human life is not

something that is imposed upon Christians

only. Reason alone suffices to demand it,

based upon what a person is and must be.

THE FIRST RIGHT OF A HUMAN BEING IS

HIS/HER LIFE. Every person has other

rights, some of them are more precious

than others; but that right is the

fundamental one, upon which rest all other

rights. This is why it must be protected

. More than any other right. It does not

behoove any society nor any Public

Authority, whichever one it might be, to

16

acknowledge this right for some and not

for others: Any bias is iniquitous, be it

based on race, sex, color or religion. It

is not the recognition of it made by

others what establishes this right; it is

something intrinsic that exists before,

demands to be recognized, and the

rejection of which is absolutely unjust.

The right to life remains intact for an

elderly person, reduced as his (mental)

Capacity might be; nor has a person with

an incurable disease lost this right

either. This right to life is no less

legitimate in a child that has just been

born than it is in a mature man. From the

time of fertilization of the ovule, a new

life is inaugurated-one that is not that

of the father nor that of the mother, but

rather that of a new human being that

develops onto his/her own. S/he will

17

never be a human being is s/he is not

already so at that time. He is a MAN, the

_ one who is in the process of becoming one.

Both Divine Law and Natural Law

therefore, exclude any right to kill an

innocent man. The violation of moral

values is always a greater evil for the

common welfare than any other. A moral

dilemma is almost everywhere accompanied

by grave judicial debates. The law is not

obligated to sanction everything, but it

cannot go against another deeper law which

is greater than any human law-the natural

law instilled in man by the Creator

Himself as a norm which reason struggles

to descipher and formulate, recognizing

that it must be better understood, but one

‘ which is always bad to contradict. Human

law can rennounce to the punishment

thereof, but cannot declare as honest that

18

which is contrary to the Natural Law,

because any such contradiction renders

such human law a negation of the law (a

non-law). On the contrary, what pertains

to the law is to procure a reform of

society, of the conditions of life in all

spheres, beginning with the less

privileged ones, to ensure a dignified

reception for every human creature that

comes into this world. To come to the aid

of families and single mothers; to

guarantee recognition for natural children

and the rational organization of the

adoption system: A wholesome positive

policy that must be promoted so that there

shall always be a concrete, honorable

alternative to abortion.

Hence the importance of citing the

words of Hanz Welzer in his’ book

Introduction to the Philosophy of the Law:

19

"...The science of jurisprudence must

meditate again upon the millennial

truth that there is a Justice higher than

the Law, a natural justice, a Divine

equity, a rational right, measured against

which injustice continues to be injustice,

clothed as it might be with the form of

the ‘See, and before which the verdict

pronounced in accordance with this unjust

law does not constitute justice, but the

contrary of Justice".

III. DOCTRINE OF THE SUPREME COURT OF THE

UNITED STATES ON ABORTION

Following the alignment of different

opinions it is incumbent upon us to refer

to the position upheld by the Supreme

Court of the United States, even more so

if we take into account the notorious

change that is taking place in regards to

20

the principle introduced in 1973. That is

to say, it is extremely important to

observe a progressive eversion of the

permissive notions on abortion in that

country.

In 1965, the Northamerican (Supreme)

Court wanders, in the subject of abortion,

into a new axiological definition of

privacy, which was afforded until then

only for specific matters which were

enumerated, such as documents, papers and

other belongings. But from the verdict in

GRISWOLD vs. CONNECTICUT, privacy became

a fundamental right, protected and

superseded only by a compulsive interest

of the State.

In 1973, with the Roe vs. Wade case,

the so-called "FREEDOM OF CHOICE"

principle was introduced. That is to say,

the freedom to opt for the interruption of

21

the pregnancy, which decision was based on

the premise that it is always better to

allow some individuals the “wn to make

inconvenient decisions than it would be to

deny to all the right to make decisions

that would have a trascendental -

implication in their destinies.

In summary, I would like to point out

the following contradictions:

a) In 1973 the Court allowed abortion

based upon the right to privacy of the

woman, but on | the other hand, it

limited-in 1983-the information to be

given to a woman (prior to an abortion)

about the dangers implicit in the violent

interruption of pregnancy, on the basis

that said information would pressure

women, thereby impeding the fulfillment of

their free choice.

b) In 1973 the Court recognized the

22

legitimate interest of the State in

protecting the potential for human life,

but in 1986 it argued that it is

unconstitutional to provide information to

the woman about possible alternatives to

abortion.

c) Finally, in 1973 the Court recognized

the "freedom of choice" to decide upon

(continuing or not) the pregnancy, but

then thirteen years later, and in the name

of that very same freedom of option, the

Court denies the possibility of receiving

information that could result in the

survival of the one that progresses

towards birth in the maternal womb.

IV. THE RIGHT T E BORN

Leaving aside all the different

positions and historic evolution of the

various doctrines on abortion, the fact

23

remains that we must rest upon a solid

foundation and a basic principle which is

_ the defense of Human Rights. Within that

scope, the first of the right is the right

to Life, which begins-as it has been

sufficiently proven scientifically-—at the

very moment of conception. Says Dr.

Bernard Nathanson in his argumentation:

"today, with the modern techniques

available, we can treat many illnesses

(while) in the womb, including some fifty

different surgical operations... If the

being conceived is a patient who can be

treated, s/he is then a person, and if

s/he is a person, then s/he has a right to

Life and to our every effort to preserve

said Life. The same specialist adds,

“rape is surely a very painful situation.

_ Fortunately, only very few cases of rape

are followed by pregnancy. But even in

24

this case rape, which is a terrible act of

violence, cannot be followed with another,

no less terrible, such as the destruction

of a live being. Therefore, to attempt to

erase a horrible violence with another

horrible one does not seem logical; it is

Simply absurd and what it really does, is

to augment the trauma for the woman by

destroying an innocent life.

In the same sense, Dr. Bidart Campos

(El Derecho, 113-479), affirms that human

life is a right of the one ee whom it

belongs. It is a subjective right of that

person and intrauterine life is a judicial

asset. If that life belongs to the being

that lives in the maternal womb, it must

be argued without any doubt, that this

same being owns the right to enjoy the

perusal of this asset which is his/her

own-which is called LIFE. Therefore the

25

woe a ree

judicial realm cannot disassociate itself

from any living human reality, because it

(the judicial realm) is the product of man

for men. To be born is not to commence

living, but rather to go out into the

external world, once the necessary

development has been achieved. The

creature precedes the birth. (Cifuentes

Santos, The Law, 15-956).

V. BRIEF EXPOSITION ON THE

INTERPRETATION OF NORMS

The zeal shown by some classics of

jurisprudence to avoid the extension of

the penal law propounded by some authors,

made them affirm that interpretation of

said (law) was not possible. Thus we find

Beccaria, who maintains that... “neither

can the authority to interpret penal laws

rest upon criminal judges, for the same

26

reason that they are not legislators".

(On Crimes and Penalties, Chapter IV, pg.

75, Spanish Edition, Aguilar, 1982).

Montesquieu opined within the same

lines ("“L’Esprit des Lois", book 6, chap.

3): “In the republican government, it

pertains to the nature of the constitution

for the judges to follow the letter of the

law. There is no citizen against whom one

can interpret a law..." All of these came

from a false concept assigned to the word

‘interpretation’, inferring that it must

necessarily ee done “in malam partem"; the

true meaning of interpretation of the law

is to investigate "the adequate sense of

a disposition with the purpose of its

application in a real life case"

(Metzger). It is not a question of

searching in the law and discovering

"extra legem" in it, but rather “intra

27

legem"; the goal is to use the antecedents

and means available in order to understand

the intention, the spirit of the law which

lives autonomously within it. But let it

. be clear that the goal is not -properly

speaking— to search for the will of the

legislator, but rather the intention of

the law itself, and in that sense, as it

were taughtby August Finger ("Lehrbuch des

Deutchen Strafrechts, Berlin, 1904, pg.

33): --.-"the completed law becomes

independent from its past..." |

Thus, to interpret (the law) is an

operation that consists of searching not

just for any will that might be contained

within that law, but rather for the true

one. In the practical case at hand, the

- will of the subscriber is-—distinct from

that of the subject—a judicial

interpretation for which I will make some

28

doctrinal observations before giving my

strictly personal opinion.

VI. THE CASE AT HAND

The second paragraph of Article 86 in

the Penal Code says, "“...an abortion

practiced by a certified physician with

the consent of the suena woman is not

punishable... (Second paragraph): if such

pregnancy results from rape or an attempt

against decorum played upon a demented or

idiotic woman. In this case, consent of

her legal representative must be obtained

in order to perform the abortion."

If we limit ourselves to a grammatical

interpretation, laws No. 17.577 and 21.388

assigned an exculpatory quality to an

abortion practiced by a certified

physician with the consent of the pregnant

woman, if the pregnancy resulted from a

29

rape upon which penal action had been

initiated. The eloquence of the wording

in the norm I comment upon invalidates any

other analysis.

The question is: Is the abortion

practiced by a certified physician with

the consent of the woman punishable, if

the pregnancy evolved from a rape? Or

must the woman also be idiotic or

demented?

Therefore, in order to interpret what

the law says, we must necessarily adhere

to the fundamentals that inspired our

legislators to write said norm. The two

hypotheses of non-punishable abortion were

introduced by the Senate Commission. From

the terms on which the initiative of the

(Senate’s) report was based, we are here

concerned with the following: "the second

case (referring to paragraph 2) entails a

30

true innovation in criminal legislation.

A distinguished professor of Penal Law who

was quoted several times on this report,

Says that the last version of the Swiss

Penal Code’s project of law (upon which

was based the law under discussion) is

extremely interesting, for it introduced

a nuance that did not exist in any of the

previous versions. This new version was

introduced by the second commission of

experts." “It is the first time —he adds—

that a legislation dares legalize abortion

with an eugenic purpose, to impede the

birth of an abnormal or degenerated being

from an idiotic or demented woman, or as

a consequence of incest. Commenting on

this article, Gautier points out that in

the case of incest one could = add

considerations of ethnical order, and that

when the pregnancy is the result of an

31

attempt committed without violence,

against a woman who is idiotic, demented,

unconscious or otherwise incapable of

resisting, the interest of the race could

be argued, even more justly so than in the

case of incest. What good can come from

a demented or cretin woman? ae

undeniable that the law must authorize

abortion when it is practiced with the

intervention cf a physician for the

purposes of perfecting the race. The

dilemma was presented in Europe during the

last war in regards to the rapes

perpetrated upon numerous Belgian women by

drunken, reckless or criminal soldiers."

No purpose other than legislating

eugenic abortion comes to light from

. reading the abovementioned report.

However, asks Fontan Balestra, is this

to justify only the so-called eugenic

32

abortion due to the fact that this

particular pregnancy came about as a

consequence of copulation with an idiotic

or demented woman-or is it also foreseen

for the sentimental abortion that destroys

the fruit of any rape? The question

arises from our wording -currently in

force— that says, I repeat, "“...If the

pregnancy results from a rape or an

attempt against the decorum of an idiotic

or demented woman..."

Obviously, if the legislator would have

purposed to justify only the case of rape

on a demented or idiotic woman, it would

have sufficed for him to say: “if the

pregnancy results from a rape committed

upon an idiotic or demented woman" or —so

as to keep in harmony with the legal

terminology— he could have said, woman

"deprived of reason". With this or any

33

other equally simple wording the law would

have been made clear and the thought

complete. It has been indicated that this

could not have escaped the legislators, no

matter how precipituously they may have

proceeded, because the mere reading of

this paragraph made it clear that-—such as

it was written-they were talking about two

very different things: rape and attempt

against decorum. This cannot be construed

.in any other way; it is understood that

the legislators wanted to say something

when they made express mention of what

they themselves termed ‘attempt against

decorum’. We must consider that as Reco

maintains, the attempt against decorum

CANNOT give place to the conception of any

child unless there has been copulation.

But it just so happens that the wording of

the paragraph does not have a comma

34

between the words "“rape"™ and “attempt

against decorum"; hence the unavoidable

confusion.

All of these confusions have a clear

cause. The Senate Committee takes this

article from the French Commission in the

Swiss project of law in which “Schandung"

is translated as “attentat a la pudeur

d’une femme idiote, alinee/inconsciente ou

incapable de resistance" (attempt against

the decorum of a woman who is idiotic,

Setivetienenmeetave or incapable of

resistance).

Truly, that is, in the technical sense,

the definition of "schandung". In German

law, after which the Swiss prcject of law

was patterned in this case, (as opposed to

our article 119 which designates all three

cases enunciated with the word "rape")

there are different technical terms used

35

for forced rape as opposed to the crime

termed "schandung". Here the word is used

more in the sense of a profanation, rather

than as an attempt against decorum.

Hence, the misinterpretation has two

causes: the fact that the word rape has a

generic acceptance in our legislation and

the fact that a translation accepted into

the text of the law, is correct but

becomes equivocal upon being incorporated

to our code in regards to the expression

‘dishonest abuse’. As Soler summarizes,

in order to understand this disposition,

it becomes necessary to affirm that in

this case the law termed as “attempt

against decorum" the rape foreseen in the

second paragraph of Article 119.

Consequently, the impunity sanctioned in

Article 86 reaches any case of rape, and

not just that of the idiotic or demented

36

woman (Treatise, Vol. III, pg. 113).

Let it be clearly established then,

that in Argentina an abortion practiced by

a certified physician with consent of the

woman is not punishable if the pregnancy

arises from a rape. This declaration,

totally in line with the norm currently in

force in our country, shall be subject, on

the part of the undersigned, to posterior

analysis inasmuch as to what must be done

with a norm which is in flagrant violation

of the National iininieibiin. te against

the precepts of public order peacefully

adhered to by all the civilized countries

of the world, and is against the spirit of

our law in general. A norm, therefore,

which stands at present in full force,

against the values consecrated by the

judicial bodies previously mentioned.

37

VII. PERSONAL OB TIVE AND

B TIVE NS IDERATION

Salvaged my opinion, enriched with

several other authorized assertions

already summarized herein, I shall refer

to two other aspects of the matter which

merit independent attention within the

context of this pronouncement, due to the

crude reality that both reveal.

a) The first one is a commentary on the

painful situation brought before me in

regards to what said situation represents

for the undersigned from the viewpoint of

the victim. This I can observe from two

vantage points. 1) As a man I must make

clear —without any reservations— that I am

in full solidarity with the the victim in

the anguish she is living right now. She

did not choose to go through this

difficult situation, and I must question

38

the physical relief that society’s

responses might be able to bring -—from

today on, and as long as they are needed—

to this afflicted woman. I use this

qualification because I have arrived to

that conclusion after having made contact

with her on several occasions. I tell her

also, that she will not be burdened with

the obligation to take care of and educate

her child once he is born, if she does not

wish to do so, since there are on record,

at the time of this pronouncement, three

formal requests for adoption, which shall

be channeled through the proper procedural

course in that eventuality. 2) As a

judge, I can tell her that I have done

everything within my reach; I have

individualized the alledged perpetrators

of the act that victimizes her, who remain

detained, and against whom there is a

39

preliminary writ of-imprison-ment firmly

in order for the crimes of rape, threats

and illegal deprivation of freedom. It is

therefore, my most deeply felt wish that

someday, something or somebody might

—within the limits of the law- return to

the petitioner her physical and spiritual

health, the vulnerability of which is made

manifest in answers such as the one she

gave when asked whether she would give her

consent to submit herself to extraction of

a sample of the amniotic liquid

(clarifying for her that this represented

a risk to her life): "...anything as long

as they take out this filthiness I’ve got

inside".

b) The second aspect that merits our

. attention, which was previously

highlighted, is the degree of certainty

inasmuch as the paternity of the fetus,

40

authorization for whose destruction was

requested of the undersigned.

Obviously the rape of which the victim

was the object has been accredited on

record. Furthermore, we have

individualized prima fascie the author of

this Pry as well as a conspirator, and

have regularized their due process. Now,

none of this confirms in an unequivocal

manner that Defendant Alanis is the father

of the child whose existence has been

determined in the body of the victim. The

object of legal investigation to be

established in regards to the petition

presented by the Plaintiff is whether the

Defendant is the father of the

‘nasciturus’ or not.

Otherwise, and within this same realm,

it is to be noted that I do not question

the victim’s statements as to her not

41

having had sexual relations either before

or after the event pertinent to the case,

which could allot the paternity upon any

third parties. However, this is only a

presumption based upon the personal image

I have of the victim, for there is nothing

on record that may prove this point;

neither is it my prerrogative to inflict

upon the privacy of this young lady any

further. Within this area, I must point

out that even if paternity had been

established through scientific methods,

{to pursue this course of action] would

entail an infringement upon the defensive

rights of the detained; for undoubtedly,

his denial to consent to the killing of

his son presuppose simply and clearly the

[implicit] recognition of the deed of

which he is accused, which is in violation

of express constitutional guarantees

42

(Article i8).

VIII. THE LAW DECLARES THIS ABORTION

AS _AN EXCULPATORY CAUSE

The basis for this determination in

within the law itself, but in order to

expound it I shall renounce as much as

possible, to any judicial technical

inference that shall render difficult the

understanding of what in essence is the

core of the matter brought before the

undersigned. This is so because the

direct recipient of the judicial

implications of this pronouncement is the

victim, whose understanding of the law is

null, but for whom I have the responsib-

ility of explaining to her, as clearly as

is possible, why she “will not be able to

take out that filthiness that she has

inside" as she herself-clearly and

crudely-—expressed to me in one of the

43

interrogatories to which she was

subjected.

The victim has been violated, and has

become pregnant as a consequence of said

violation. If she were to abort in this

moment -giving her consent thereto to a

certified physician, this typically

illegal act would not constitute a crime.

This is so because the law foresees such

act as an exculpatory cause. What does

this mean? Well... When an act has been

committed which has both subjective as

well as objective characteristics of a

crime-as is the case of an abortion-the

law forsees a disposition by which this

act which would normally be considered a

crime, in this special case does not merit

. any penalty for the one committing it.

That is the effect of an absolutorial

excuse, as defined by Gimenez de Asna (The

44

Law and the Crime, pg. 433): "...it

pertains to situations in which the law,

generally due to reasons of usefulness and

criminal policy, considers preferable to

do away with the penalty for extremely

special reasons..."

But from all that has been expounded

here a truth is inferred, ever so clear,

that once enunciated it shall override any

other commentary: In order for this legal

premise to function, first the act must be

committed. To request an authorization

such as the one contained in pg. 85, is to

invert the logical order of things; is to

distort so much the true spirit of the law

—were I to grant the petition-— that my

decision would be, besides arbitrary,

delictive, because I would be ordering

death for an INNOCENT HUMAN being, without

previous due process, without access to

45

defense, without the presence of any crime

that might justify it, and without the

prerrogative of capital punishment even

exist in our legislation, etc.

In other words: We find absolutory

excuses in the Penal Code—-besides this

article-on art. 132, or in art. 185 of the

abovementioned legal body; the latter

establishes, among other things, that

",...they are exent from penal

responsibility... for the larceny... which

might be reciprocally caused: lst.

paragraph: the spouses..."

Now, no one could construe that a man

Or a woman would come before a judge to

request authorization to steal something

from their spouse; first s/he steals it,

and then, on a subsequent day, should s/he

be the object of a criminal investigation

which might incriminate him/her, s/he

46

shall oppose this absolutory excuse as a

defense, which, if pertinent, shall render

his/her actions without penal

responsibility. Here we have the same

thing; if it is the wish of the petitioner

to abort, let her do so. But what no one

can pretend, under any concept, is to

substitute beforehand for his/her penal

responsibility, delegating the same upon

the judge. Because in that case, then he

(the judge) would be the true criminal of

this story. It is not the prerrogative of

the undersigned, nor that of any earthly

magistrate or judge to order that an

innocent person be killed, because that

is what it would be. Furthermore, it does

not perspire from the norm that I have

been analyzing in depth for some pages

now—not even through interpretative

means-that I must authorize the abortion

47

because in so doing, even if I were to

partake of the faculty that the norm under

analysis imparts-to which I AM FIERCELY

OPPOSED-I would be denaturing the judicial

function that this (rule) represents,

which is: to discount the penalty afforded

to someone who ehas committed an act

described objectively as a crime.

To end, I would like-if this is

possible, and I hope it is-that someday

the damnified victim herein would feel the

pride that no doubt I would feel tomorrow

when this person is born and can decide

for his/her own what to do with his/her

life and thereby address his/her actions.

IX. THE UNCONSTITUTIONALITY OF THE NORM

I must say that in the case at hand, I

have assigned Dr. Lopez Lecube, Official

Defender No. 5 of the Federal Capital, as

48

the representative for the rights of the

fetus. Dr. Lopez Lecube has requested

from the undersigned to declare the

inconstitutionality of paragraph 2 in

Article 86 of the Penal Code. Our control

system for constitutionality in the

federal jurisdiction is difused

jurisdictionally. Therefore, it befalls

sufficiently within the competence of any

of the magistrates therein.

All requirements demanded by our

constitutional system of law are

fulfilled; there is a suit or legal

proceeding in which verdict must be

rendered. There is a norm which is in

effect and is applicable to said legal

proceeding, which I am asked to declare

unconstitutional upon request by party

therein, also a requisite of the law.

I have said above that I do not partake

49

of the faculty given by the judicial norm

under analysis, and that is so because it

is of the utmost priority to understand

that our constitution grants the right to

life-Article 33; the spirit of our Penal

Code is contrary to the possibility of

abortion; abortion is a crime that attacks

life; the judicial asset being protected

is therefore, life itself. I ask: Where

is the judicial philosophy principle upon

which the right to life could be broken

when this (life) is a product of rape, or

of an “attempt against decorum" performed

on an idiotic or demented woman?

Changing the approach, which is the

judicial asset afforded protection by the

second paragraph of Article 86, that it

. Might so successfully preempty the value

of life, so clearly protected by our

Constitution and our Penal Code? Is it

50

perhaps the perfection of the race—because

to this end pointed the Swiss legislators,

and obviously did so with most peculiar

reasons already commented upon, reasons

which do not apply to our reality.

This being so, there is no answer to

this interrogant and we must strive then

to avoid the situation in which the

maternal womb might become the most

dangerous place for an Argentinian to be

in. Besides, the capital punishment has

been excluded from our legislation. Upon

what bases then, can this principle (the

one of capital punishment) be incorporated

for the unborn persons is it perhaps

because they cannot defend themselves?

There is no veritable statistic that

would demonstrate that all children-or at

least the majority therein-resulting from

incestuous copulation are degenerate, or

51

that those that result from fertilization

of an idiotic or demented woman shall

necessarily be the same as their mothers.

Therefore, I insist, there is no basis

whatsoever for allowing the fall of the

right to life, which is so comfortably and

peaceably installed in our legislation,

due to —in short— a poor copy of a foreign

legislation. Consequently, the rule

currently in force is, in the opinion of

the undersigned, UNCONSTITUTIONAL, and

must be declared as such.

WHEREAS, taking into account all that

has been expounded upon herein, and

without prejudice of the civil rights or

actions that the petitioner might

otherwise exercise through the pertinent

means or channels, the undersigned

52

RULES _AS_ FOLLOWS:

I) TO DECLARE THE RIGHT TO LIFE WHICH IS

THE PROPERTY OF EVERY UNBORN PERSON.

IT) NOT TO HONOR THE REQUEST TO END

THE HUMAN LIFE ENGENDERED IN THE WOMB OF

THE PETITIONER.

IIT) TO DECLARE THE UNCONSTITUTIONALITY

OF PARAGRAPH 2, ARTICLE 86 OF THE

ARGENTINIAN PENAL CODE.

REMIGIO GONZALEZ MORENO. TRIAL JUDGE

CONCLUSION

In abortion cases, this Court should

consider the treaties cited herein.

Respectfully submitted,

ROBERT L SASSONE, Attorney for Amicus

kkkkkke

Translated by Leda Diaz Freire, accredited

by ‘A.T.A. (American Translators

Association) and edited by James A.

Miller. Human Life Inter-

national, September 25, 1989.

53

NO 88-1125

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

JANE HODGSON, MD, ET AL.

: Petitioners,

Vv.

THE STATE OF MINNESOTA, ET AL.

Respondents,

Affidavit of mailing of amicus brief

copies, Rule 28.2

State of California }ss.

City of Santa Ana, County of Orange }

Robert L Sassone, being first duly sworn

on his oath deposes and says:

Robert L Sassone is a member of the

bar of the United States Supreme Court

admitted October 26, 1971. To his

knowledge, on October 11, 1989, within

the particular time and permitted time

for serving of said amicus brief pursuant

to Rule 28.2, he deposited in the United

States Mailbox at Santa Ana, CA 92701

pursuant to Rule 28.2 with first class

postage prepaid 40 copies of the attached

amicus brief in the present case properly

addressed to the Clerk of the United

States Supreme Court and three copies of

said amicus brief to each party addressed

as follows:

JANET BENSHOOF, ESQ

ACLU FOUNDATION

HUBERT HUMPHREY III 132 W 43RD ST

ATTORNEY GENERAL NEW YORK, NY 10036

C/O KENNETH RASCHKE,JR WILLIAM Z

ASST ATTORNEY GENERAL PENTELOVITCH, ESQ

MASLON, EDELMAN,

515 TRANSPORTATION BLDG BORMAN & BRAND

ST PAUL, MN 55155 1800 MIDWEST PLAZA

MINNEAPOLIS, MN 55402

ROBERT L SASSONE, Affiant

Subscribed and sworn to before me on

October ll, 1989.

Lawrence D. Sassone, Notary Public