# Amicus Curiae Brief — Hodgson v. Minnesota

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1061%3A29

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 417

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1061%3A29. Public record. Not legal advice.