Amicus Curiae Brief — Casey v. Planned Parenthood of Southeastern Pennsylvania (Nos. 91-902, 91-744)
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Nos. 91-744 and 91-902
In the Supreme Court of the Anited
OCTOBER TERM, 1991
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PLANNED PARENTHOOD OF
‘ SOUTHEASTERN PENNSYLVANIA, et al.,
i Petitioners and Cross-Respondents,
vs.
4 ROBERT P. CASEY, et al.,
Respondents and Cross-Petitioners.
ON CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
Brief of Catholics United for Life, Orthodox Christians for Life, Na-
tional Organization of Episcopalians for Life, Presbyterians Pro-Life,
American Baptist Friends of Life, Baptists for Life, Lutherans For Life,
WELS Latherans for Life, United Church of Christ Friends for Life,
Disciples for Life, Nazarenes For Life, Task Force of United Methodists
on Abortion and Sexuality, Concerned Women for America, the Ameri-
can Center for Law and Justice, the Catholic League for Religious and
Civil Rights, and the Christian Action Council
as Amici Curiae in Support of Respondents and Cross-Petitioners
Thomas Patrick Monaghan
Jay Alan Sekulow
Walter M. Weber
(Counsel of record)
C. Peter Thomas S. Cornell
James E. Murphy
Of Counsel: Free Speech Advocates
6375 New Hope Road
Charles E. Rice New Hope, KY 40052
Notre Dame Law School (502) 549-5454
Notre Dame, IN 46556 Thomas A.G R
Christian Action Council
Michael J. Laird
608 S. Walnut Street
Arlington Heights, IL 60006
101 W. Broad St., Suite 500
Falls Church, VA 22046
Attorneys for Amici Curiae
DCCT AUVALLADIC PNDV
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................6. 000 e ec eeeee ii
EE a ac cvcccccncccccecssccossccepes vii
SUMMARY OF ARGUMENT .....................0-0005- 1
FE ean chic bbn obs es dvccdscccesccccccccces 3
I. THE TERM “PERSON” UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS INCLUDES
II. THERE IS NO JUSTIFICATION FOR EXCLUDING
FROM THE TERM “PERSON” THE CLASS OF HUMAN
BEINGS CONCEIVED BUT NOT YET BORN ........... 6
A. Roe v. Wade Gave No Valid Basis for Creating
an Exception for Unborn Children. ................. 6
1. Alleged absence of precedent..................55. 6
2. Postnatal application of other
constitutional provisions. .................0.e005. 7
3. Apparent inconsistency of state anti-abortion
laws with personhood of unborn children ........... 8
4. Alleged laxity of nineteenth century abortion laws .... 9
B. No Other Basis Exists For Creating an Exception
for Unborn Children . .................00000 0000s 11
1. The framers of the fourteenth amendment did no
distinguish between “human beings” and “persons.” .. 11
2. Science rejects the exclusion of unborn children
from the class of human beings. .................. 14
3. Logic militates against the creation of an exception
for unborn children in the term “person.”........... 16
4. Legal consistency would not be served by the
exclusion of unborn children from the protection
of the fifth and fourteenth amendments............. 20
5. Justice demands the inclusion of unborn children
SPE IS ccc cccccccccccceccccces 24
Il. THE PERSONHOOD OF THE UNBORN REQUIRES
THE REJECTION OF PLANNED PARENTHOOD’S
ATTACK UPON THE PENNSYLVANIA STATUTES. .. 26
dco dane hbdeecbasesvssdssccvccoccccces 30
APPENDIX: PROCLAMATION 5761 (personhood
Cab sa cou heehewseccovissetsecvcccedecccess A-1
Cases
ii
TABLE OF AUTHORITIES
Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985) Bes 3
Baldwin v. Butcher, 155 W. Va. 431, 184
I is ON icitedics ve vocdedsk 22
Betts v. Brady, 316 U.S. 455 (1942) ...........0eeeeeee 25
Bolling v. Sharpe, 347 U.S. 497 (1954) ...........2005. 27
Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946)......... 21
Britt v. Sears, 150 Ind. App. 487, 277 N.E.2d 20 (1971) . . . 22
Brown v. Board of Educ., 347 U.S. 483 (1954) (Brown I) . . 9, 29
Brown v. Board of Educ., 349 U.S. 294 (1955) (Brown II) . 9, 29
Chrisafogeorgis v. Brandenberg, 55 Ill. 2d 368,
SOOM OES bre 0.90 Kee Cebebees coéesece 22
City of Akron v. Akron Center for Reprod. Health, Inc.,
GE es Sib cided antounsessccececesss 18
City of Cleburne v. Cleburne Living Center, Inc.,
Ce dnc bdGuneessécercséscedes 4
Commonwealth v. Cass, 392 Mass. 799,
GOT DERBe RIO CIIOD occ ccccccccccccccccces 5,21
Commonwealth v. Lawrence, 404 Mass. 378,
EES ee 21
Corkey v. Edwards, 322 F. Supp. 1248
(W.D.N.C. 1971), vacated, 410 U.S. 950 (1973). ..... 16
Cruzan v. Director, Mo. Dep’t of Health,
SPO eich dkes ce caninkesnd 27
Danos v. St. Pierre, 402 So. 2d 633 (La. 1981) .......... 22
DeShaney v. Winnebago County Dep’t of Social Servs.,
GD OE. Ts Fa cnn nckcaeendieseess 27, 28
DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489,
reh’g denied, 320 N.C. 799, 361 S.E.2d 73 (1987) .... 22
Egbert v. Wenzl, 199 Neb. 573, 260 N.W.2d 480 (1977) . . .-23
Eich v. Gulf Shores, 293 Ala. 95, 300 So. 2d 354 (1974)... 22
Endresz v. Friedberg, 24 N.Y.2d 478,
248 N.E.2d 901, 301 N.Y.S.2d 65 (1969) ........... 23
Espadero v. Feld, 649 F. Supp. 1480 (D. Colo. 1986) ..... 22
Evans v. Olson, 550 P.2d 924 (Okla. 1976) ............. 22
Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964) . 22
Furman v. Georgia, 408 U.S. 238 (1972) ...........000. 25
Gideon v. Wainwright, 372 U.S. 335 (1963). ............ 25
Gorke v. Leclerc, 23 Conn. Supp. 256, 181 A.2d 448 (1962) . 22
Graf v. Taggart, 43 N.J. 303, 204 A.2d 140 (1964) ....... 23
Greater Southeast Community Hosp. v. Williams,
482 A.2d 394 (D.C. 1984) 2.2... cece eee 22
Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962) ........ 22
Hamby v. McDaniel, 559 S.W.2d 774 (Tenn. 1977)... . 22, 23
Hernandez v. Garwood, 390 So. 2d 357 (Fla. 1980) ...... 23
Hopkins v. McBane, 359 N.W.2d 862 (N.D. 1984),
appeal after remand, 427 N.W.2d 85 (N.D. 1988) ... . 22
Justus v. Atchison, 19 Cal. 3d 564, 565 P.2d 122,
139 Cal. Rptr. 97 (1977)... 6.6 eee ees 23
Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617,
87 Cal. Rptr. 481 (1970) (en banc)..............-.. 20
Kuhnke v. Fisher, 683 P.2d 916 (Mont. 1984) ........... 23
Kwaterski v. State Farm Mutual Ins. Co., 34
Wis. 2d 14, 148 N.W.2d 107 (1967) ............... 22
Lawrence v. Craven Tire Co., 210 Va. 138,
169 S.E.2d 440 (1969) .. 0.0... cece cece eee eens 23
Legal Tender Cases, 79 U.S. (12 Wall.) 457 (1870). ...... 4
Levy v. Louisiana, 391 U.S. 68 (1968) ......... 6.6.65. 5
Libbee v. Permanente Clinic, 268 Or. 258, 518 P.2d 636,
reh'g denied, id., 520 P.2d 361 (1974). ............. 22
McKillip v. Zimmerman, 191 N.W.2d 706 (lowa 1971)... . 23
Michael H. v. Gerald D., 491 U.S. 110 (1989)........... 26
Michael M. v. Superior Court, 450 U.S. 464 (1981)....... 9
Milkovich v. Lorain Journal Co., 110 S. Ct. 2695 (1990) .. 24
Milton v. Cary Medical Center, 538 A.2d 252 (Me. 1988). . 23
Mitchell v. Couch, 285 S.W.2d 901 (Ky. 1955) .......... 22
Moen v. Hanson, 85 Wash. 2d 597, 537 P.2d 266 (1975)... 22
Mone v. Greyhound Lines, Inc., 368 Mass. 354,
eC. Pees Gece ccccescccccess 22
O'Grady v. Brown, 654 S.W.2d 904 (Mo. 1983) ......... 22
O'Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971) . 22
Planned Parenthood Ass'n of Kansas City,
Mo. v. Ashcroft, 462 U.S. 476 (1983) ........ 6.665. 16
Poe v. Ullman, 367 U.S. 497 (1961)... 6. 6. oo ee ee ee ee 25
Polinquin v. MacDonald, 101 N.H. 104,
che Reese cccccccccccccesces 22
Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1955) 11
Presley v. Newport Hosp., 117 R.1. 177,
I, oc cccceccccccccccs 16, 18, 22, 23
Rainey v. Horn, 221 Miss. 269, 72 So. 2d 434 (1954) ..... 22
Re Certification of Question of Law from United States
District Court, 387 N.W.2d 42 (S.D. 1986).......... 22
iV
Regan v. Taxation with Representation, 461 U.S.
PE Hit cnenntintnakoendéieoceceseoeeses 27
Roe v. Wade, 410 U.S. 113 (1973)... ............ 1, passim
Rosen v. Louisiana State Bd. of Medical Examiners,
318 F. Supp. 1217 (B.D. La. 1970), vacated,
I eek Res ci ccccset coecese 16, 24
Salazar v. St. Vincent Hosp., 95 N.M. 150,
Ga a A BEE occ cccccccccccccces 22
San Francisco Arts & Athletics, Inc., v. United States
Olympic Comm., 483 U.S. 522 (1987)... ........... 27
Santa Clara County v. Southern Pac. R.R. Co.,
dente tbbehenbe beccecesccece 20
State ex rel. Odham v. Sherman, 234 Md. 179,
EE ee 22
State v. Burrell, 237 Kan. 303, 699 P.2d 499 (1985) ...... 21
State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984)... ... 21
Steinberg v. Brown, 321 F. Supp. 741 (N.D. Ohio 1970) . 6, 7, 16
Summerfield v. Superior Court, 144 Ariz. 467,
698 P.2d 712 (1985) (en banc).................... 22
Thellusson v. Woodford, 31 Eng. Rep. 117 (Ch. 1798)... . . 7
Thornburgh v. American College of Obstets.
& Gynecs., 476 U.S. 747 (1986) ...... 15, 17, 18, 19, 27
United States v. Salerno, 481 U.S. 739 (1987) ........ 28, 29
Vaillancourt v. Medical Center Hosp. of Vermont, Inc.,
139 Vt. 138, 425 A.2d 92 (1980) .................. 22
Verkennes v. Corniea, 229 Minn. 365,
Oe ee 22
Volk v. Baldazo, 103 Idaho 570, 651 P.2d 11 (1982) ...... 22
Wade v. United States, 745 F. Supp. 1573 (D. Haw. 1990) . 22
Webster v. Reproductive F’ealth Servs., 492 U.S.
EE ES Oe 5,18
Werling v. Sandy, 17 Ohio St. 3d 45,
i ae ce uslboees 22
West Virginia Board of Educ. v. Barnette,
EE 25
White v. Yup, 85 Nev. 527, 458 P.2d 617 (1969) ......... 22
Witty v. American Gen. Capital Distribs., Inc.,
30 Tex. Sup. Ct. J. 244, 727 S.W.2d 503 (1987)... ... 23
Worgan v. Greggo & Ferrara, Inc., 50 Del. 258,
128 A.2d SS7 (Super. Ct. 1956)... 2... ccc eee ees 22
Yick Wo v. Hopkins, 118 U.S. 356 (1886). .............. 27
Vv
Constitutional, Statutory & Regulatory Provisions
es conc iuesbeeceseeoeencoeeace 7
are rs onc cccccececbccconsascens 12
RE RR ees 7
De ccc nae cc akeeens sé ceeensnese 7
a a acs Caaecedatosesesentane 8
EE 1, passim
eee GE SEIU OE Be cc ceccccccccccccccces 1, passim
Cal. Penal Code § 187 (West 1988) ..............0000005. 21
Ill. Ann. Stat. ch. 38, paras. 9-1.2, 9-2.1, 9-3.2
TE ccvceedhctewccdececcaccese 21
Ill. Ann. Stat. ch. 70, para. 2.2 (Smith-Hurd 1989) .......... 23
La. Rev. Stat. Ann. §§ 14:32.5 - 32.8 (West Supp. 1992) ..... 21
Minn. Stat. Ann. §§ 609.2661-609.2665, 609.268(1)
ind 60 depen aesenecsoceess 21
N.D. Cent. Code §§ 12.1-17.1-02 to 12.1-17.1-04 (Supp. 1991). . 21
ee oe se ecm eaneueel 28
Ee 28
nS ae 28
iT .c.d senses adhbendeeesecéouks 28
es 8 ow ec eeeeense 28
I Nn ne ko dou sc ereccecccoeseses 28
Proclamation No. 5761, 3 C.F.R., 1988 Comp., p.3 ......... 26
Tenn. Code Ann. § 20-5-106(c) (Supp. 1991) ........... 22, 23
Other Authorities
Annotation, Homicide Based on Killing of Unborn Child,
EE hi dntidvingdsccececccccceceses 21
Annotation, Liability for Prenatal Injuries,
sh cace cnonctedaeesee: ce 21
Annotation, Right to Maintain Action or to Recover Damages
for Death of Unborn Child, 84 A.L.R.3d 411 (1978) ..... 21
L. Arey, Developmental Anatomy (7th ed. 1974). ........... 15
Bopp, Jr. & Coleson, The Right to Abortion: Anomalous,
Absolute, and Ripe for Reversal,
Pe ED ocnedccccscccccceccccs 23
Byrn, Abortion in Perspective, 5 Duq. U.L.
i tcicse Ah dekbddneedouecncesceces 27
Cong. Globe, 35th Cong., Ist Sess. App. 65-66 (1858) ....... 14
Cong. Globe, 37th Cong., 2d Sess. 1449 (1862) ............ 13
vi
Cong. Globe, 37th Cong., 2d Sess. 1640 (1862) ............ 25
Cong. Globe, 38th Cong., Ist Sess. 1753 (1864) ............ 13
Cong. Globe, 39th Cong., Ist Sess. 74 (1865) .............. 12
Cong. Globe, 39th Cong., Ist Sess. (1866) ................ 13
Cong. Globe, 40th Cong., Ist Sess. 542 (1867) ............. 13
Cong. Globe, 42nd Cong., 1st Sess. App. 229 (1871) ........ 17
3 Camp, Res. IFRS CIGTS) «222s cccccccccccccccccccccces 13
Declaration of Independence para. 2 (U.S. 1776) ........... 25
P. Cunningham eds. 1987) ..............02-00055 10, 11
Dellapenna, The History of Abortion: Technology, Morality,
and Law, 40 U. Pitt. L. Rev. 359 (1979) ..............- 10
Destro, Abortion and the Constitution: The Need for a
Life-Protective Amendment, 63 Cal. L. Rev. 1250 (1975)... 6
Gorby, The “Right” to an Abortion, the Scope of Fourteenth
Amendment “Personhood,” and the Supreme Court's
Birth Requirement, 1979S. Ml. U.LJ.1 .......... rt
W. Hamilton & H. Mossman, Human Embryology
GEG GUE Woes ccc vcccccceuseecepescccccccccce 15
The Human Life Bill: Hearings on S.158 Before the Subcomm.
on Separation of Powers of the Senate Comm. on the
Judiciary, 97th Cong., 1st Sess. 14, 16, 17 (1982) ....... 15
Krimmel & Foley, Abortion: An Inspection into the Nature
of Human Life and Potential Consequences of Legalizihg
its Destruction, 46 U. Cin. L. Rev. 725 (1977) .......... 14
K. Moore, The Developing Human: Clinically Oriented
Embryology (2d ed. 1977)... ... 6. cece e eee eee 16
H. Storer, Criminal Abortion in America (1860) .......... 7,21
13 Transactions of the American Medical
ED eacbsccdcedcccccoccccccccs 11
Witherspoon, Reexamining Roe: Nineteenth-Century
Abortion Statutes and the Fourteenth Amendment,
PF es PE ob We Rec cc ecceccccccccecs 21
Vii
INTEREST OF AMICI
Catholics United for Life
Catholics United for Life (CUL) is the pro-life apostolate of
the St. Martin de Porres Dominican Community. Formed in
1974, CUL has twenty-two affiliates across the country, and
promotes sidewalk counseling, a technique it developed for sav-
ing babies from abortion. Sidewalk counselors work to save each
individual baby threatened by abortion — through prayer, per-
suasion, offers of assistance, and distribution of literature. CUL
also supplies literature on a national level to promote respect for
all human life.
Orthodox Christians for Life
Orthodox Christians for Life is a religious-educational prolife
organization consisting of members from all jurisdictions of the
Eastern Orthodox Church in the United States and Canada. It
was founded and functions in a spirit of synergistic cooperation
with the hierarchy, clergy, and laity of the Orthodox Church
regardless of jurisdiction or geographical location. The organiza-
tion supports the doctrines and canons of the Church. Its activi-
ties have included the recent coordination and creation of an
Amicus Brief submitted to the United States Supreme Court on
behalf of the Holy Orthodox Church in Webster v. Reproductive
Health Services (No. 88-605).
In its moral teachings, the Orthodox Church has had a long
and continuous history of outspoken condemnation of abortion
which dates back to Apostolic times. In fact, the humanity of the
unborn child, his “personhood,” and his possession of a soul
from the moment of conception have been universally under-
stood in the Eastern Church from the earliest times; these under-
standings remain unchanged and unchallenged in Orthodox the-
ology to this day.
The Holy Orthodox Church remains a unique witness to
historical Christianity’s understanding of the sacredness of hu-
man life: that the unborn are indeed “persons” and that abortion
is considered an act of premeditated murder. Orthodox Chris-
viii
tians for Life supports and advocates these historical positions
and promotes them not only to the faithful, but to the secular
culture at large.
National Organization of Episcopalians for Life
National Organization of Episcopalians for Life Research
and Education Foundation, Inc. (NOEL), a non-profit Maryland
corporation with national offices in Fairfax, Virginia, is a general
organization of the Episcopal Church. NOEL’s purposes affirm
the sacredness and the right to life of all human beings from
conception to natural death. NOEL supports the 1988 General
Convention Resolution of the Episcopal Church which “em-
phatically oppose[s] abortion as a means of birth control, family
planning, sex selection or any reason of mere convenience,”
promotes alternatives to abortion, including adoption, and assists
those faced with problem pregnancies through its 121 chapters in
36 states.
Presbyterians Pro-Life
Presbyterians Pro-Life is organized within the Presbyterian
Church (USA), a denomination with nearly three million mem-
bers. Its objectives are to proclaim the Church’s obligation to
protect all innocent human life from conception to natural death
and to support women in crisis pregnancies by offering alterna-
tives to abortion. It is governed by a board of directors of lay
men and women and pastors, all members of the Presbyterian
Church (USA). It has a network of local chapters throughout the
denomination and publishes a quarterly newsletter that reaches
25,000 families and churches.
American Baptist Friends of Life
American Baptist Friends of Life is a pro-life advocacy orga-
nization within the American Baptist Churches/USA, represent-
ing the pro-life position of a large percentage of American Bap-
tists. Directed by an eight member executive committee, it pub-
lishes a regular newsletter and is taking leadership in the imple-
mentation of its new denominational resolution on abortion passed
in June of 1988 which states, “as American Baptists, we oppose
abortion as a means of avoiding responsibility for conception.”
—S"
1X
Baptists for Life
Baptists for Life is a Christian pro-life organization repre-
senting independent Baptist Churches throughout the United States
with main offices in Grand Rapids, Michigan. Baptists for Life
believes in the sacredness of human life at every stage of biologi-
cal development and in its valve throughout the life continuum.
It exists to provide alternatives to abortion through the over
2,000 church congregations which it represents.
Lutherans For Life
Lutherans For Life is a national, pan-Lutheran, pro-life organi-
zation founded in 1978. In addition to individual members, there
are some 280 local chapters across North America engaged in a
wide variety of educational and compassionate efforts.
Lutherans For Life believes that the Church is compelled by
God’s Word to speak and act on behalf of those who are vulner-
able and defenseless. The crisis of our time is the repudiation of
Biblical truth manifested in the wanton destruction of innocent
human life through legalized abortion-on-demand and the grow-
ing threat to the lives of others through legalized assisted suicide
and euthanasia. Therefore, as Lutherans For Life, we strive to-
gether to give witness, from the Biblical perspective, to the
Church and society on these and related issues such as chastity,
postabortion healing and family living.
LFL assists Lutheran individuals and congregations to work
and witness for life. We produce a wide-variety of educational
materials; publish a newsletter and magazine; host a national
convention and numerous seminars and workshops. State and
local chapters support a wide range of compassionate outreaches
such as the post-abortion outreach Healing Hearts or the crisis
pregnancy support ministries The Guide Program and The Ten-
der Shepherd Program. LFL also produces a nationwide pro-life
radio program on the Jubilee Network (TM).
WELS Lutherans for Life
WELS Lutherans for Life is para-synod organization in
fellowship with the 440,000 member Wisconsin Evangelical
x
Lutheran Synod (WELS). WELS Lutherans for Life consists of
26 chapters and 20 congregational branches throughout the United
States. WELS resolved at its 1979 synod convention that “the
Holy Scriptures clearly teach that the living yet unborn are per-
sons in the sight of God . . . and that we continue to urge our
membership to make God’s will in this matter known.” WELS
Lutherans for Life is that specialized ministry which seeks to
make known God’s will of life and to provide assistance to
others in all life issues.
United Church of Christ Friends for Life
United Church of Christ Friends for Life is a duly consti-
tuted special interest group recognized by the General Synod of
the United Church of Christ. Since the General Synod has taken
a pro-choice/pro-abortion stand, UCC Friends for Life upholds
the sanctity of human life from conception to natural death and
encourages the Church to protect unborn children while provid-
ing abortion alternatives to women in crisis pregnancy. This
belief is proclaimed in quarterly newsletters and a recently pub-
lished book, Affirming Life. A growing pro-life network within
the denomination works to educate its members and provide
compassionate ministry.
Disciples for Life
Disciples for Life is a pro-life advocacy organization made
up of members of the Christian Church (Disciples of Christ). It
provides a monthly column in the publication: ‘Disciple Renewal,’
supplies educational materials to the church, and is establishing
chapters throughout the denomination. Disciples for Life promotes
the sanctity of human life and opposes abortion on demand.
The structure of the Christian Church (Disciples of Christ)
is Such that the official statements and actions of the highest (or
general) level does not necessarily reflect the diversity of its one
million members; it is a denomination that emphasizes freedom
and autonomy to its members and churches. Its general level
endorsement for abortion on demand is a position at odds with
many in the church.
xi
Nazarenes For Life
Nazarenes For Life is composed of laymen who have come
together to support the pro-life stand that we see the Scriptures
reveal, and which the manual of the Church of the Nazarene
supports. We therefore have accepted the challenge to become
involved in educating the church on pro-life and pro-family
issues, Supporting existing pro-life organizations within our area,
and providing a support network to women and families in need.
To fulfill this purpose, we have worked in many areas
including the following:
1. Invited guest speakers, sponsored seminars, classes, and
special presentations to large and small groups.
2. Supported homes for pregnant women and Crisis Preg-
nancy Centers.
3. Supplied literature and videos on abortion, abstinence,
sexually transmitted diseases, and help for the post-abortal
woman.
4. Actively counseled women in crisis pregnancy as well
as women suffering from past abortions.
5. Worked to educate pastors, church leaders, and laymen
on the realities of abortion in today’s world, and on the
personhood and humanity of the unborn.
6. Encouraged a more active role by the church body in
taking a stand on the moral issues of our day.
Task Force of United Methodists on Abortion and Sexuality
The Task Force of United Methodists on Abortion and
Sexuality is a national network of over 5,800 pastors, theolo-
gians, churches, and laity dedicated to minister to the deepening
problems of abortion recidivism and abortion-as-contraception.
The view that “life does not begin until live birth” does not
represent the position of a large segment of the United Methodist
Church. According to our Discipline, only our General Confer-
ence speaks the position of the Church, not our General Board of
Church and Society nor our Women’s Division. Furthermore, it
is recognized that our Book of Discipline is the primary source of
xii
order and purpose in the Church, not our Resolutions. Since
1972, General Conference has asserted in the Book of Discipline
“our belief in the sanctity of unborn human life.” Then in 1988,
General Conference stated in Book of Discipline paragraph 71G
that “We recognize tragic conflicts of life with life that may
justify abortion and in such cases support the legal option of
abortion under proper medical procedures. We cannot affirm
abortion as an acceptable means of birth control and we uncondi-
tionally reject it as a means of gender selection.” That abortion
involves human life before birth is signified by the phrase “con-
flicts of life with life” (emphasis added). That abortion should be
restricted to minimize indiscriminate practice is signified by
saying that “we cannot affirm abortion as an acceptable means of
birth control and we unconditionally reject it as a means of
gender selection.”
Concerned Women for America
Concerned Women for America (“CWA”) is an national,
nonprofit organization representing approximately 600,000
people. CWA’s purpose is as follows:
The purpose of CWA is to preserve, protect and promote
tion, legal defense, legislative programs, humanitarian
aid, and related activities which represent the concerns of
men and women who believe in these values.
One of the foremost concerns and desires of CWA is to
protect the lives of the unborn.
American Center for Law and Justice
The American Center for Law and Justice is a national
public interest law firm, chartered to enter the legal arena on
issues of a broad public interest. The American Center has mem-
bers in all fifty States. Attorneys from every State of the Union
have affiliated with the American Center, to assist in the restora-
tion of pro-liberty, pro-life and pro-family values.
On behalf of its members, the American Center calls for an
end to the systematic exploitation and victimization of women
xiii
by the abortion industry, and an end to the holocaust of the
destruction of our progeny.
Catholic League for Religious and Civil Rights
The Catholic League for Religious and Civil Rights is a
nonprofit voluntary association, national in membership, orga-
nized to combat all forms of religious prejudice and discrimina-
tion. The Catholic League is committed to ensuring the Ameri-
can people’s continued enjoyment of the strong protection af-
forded religious liberty by the religion clauses of the First Amend-
ment, and it supports the religious freedom rights of Catholics
and others through a wide range of activities.
Christian Action Council
The Christian Action Council (CAC), founded in 1975 as a
Protestant evangelical pro-life organization, is incorporated in
the District of Columbia. Since its founding, the CAC has estab-
lished 400 crisis pregnancy centers around the country. These
crisis pregnancy centers serviced more than 200,000 women in
1990, providing them with support, encouragement, and neces-
Sary services to enable them to carry their babies to term. The
CAC also counsels and supports women who suffer from the
aftermath of abortion. CAC has 120 local CAC affiliate chapters
that are activist-oriented and involved politically in promoting
pro-life legislation and seeking a reversal of Roe v. Wade.
The parties to the present case have consented to the filing
of this brief; letters granting consent are being filed with this
Court.
Nos. 91-744 and 91-902
In the Supreme Court of the United States
PLANNED PARENTHOOD OF SOUTHEASTERN
PENNSYLVANIA, et al.,
Petitioners and Cross-Respondents,
vs.
ROBERT P. CASEY, et al.,
Respondents and Cross-Petitioners.
SUMMARY OF ARGUMENT
This case presents a challenge, by Planned Parenthood of
Southeastern Pennsylvania and others (hereinafter, “Planned Par-
enthood”), to various Pennsylvania statutes alleged to violate a
constitutional “right” to abortion. The threshold question, as the
court below acknowledged, is the proper standard of review for
analyzing alleged violations of a right to abortion. This standard, in
turn, depends upon the status of the asserted abortion liberty and
whether abortion is a constitutional right at all.
Planned Parenthood’s challenge must fail. The fourteenth
amendment secures no “right” to abortion. On the contrary, this
amendment guarantees the right to life of all human beings, a right
which is fundamentally inconsistent with any claim of an abortion
right.
In Roe v. Wade, 410 U.S. 113 (1973), a majority of this Court
held that unborn children are not “persons” with rights under the
fourteenth amendment to the United States Constitution, and that
the fourteenth amendment includes a right to abortion. As demon-
strated in this amicus brief, the Roe Court erred on both counts. This
Court should now repudiate the exclusion of unborn children from
constitutional protection, and overrule Roe v. Wade.
The fifth and fourteenth amendments secure protection for the
minimum human rights a state must respect: the rights to life,
2
liberty, and property. These amendments would be of little value,
however, if those invoking their guarantees had to prove their ex-
plicit entitlement to constitutional protection. Rather, these amend-
ments apply to all living human beings by virtue of their humanity.
No valid basis exists for excluding human beings conceived
but not yet born from the protection afforded “persons” under the
Conativuti
The Roe Court offered no defensible justification for such an
exception. The alleged absence of precedents for the personhood of
unborn children is not only incorrect, but also irrelevant in view of
the similar dearth of such precedents for any other class of humans.
The postnatal applicability of some provisions of the Constitution
referring to “persons” does not imply that those excluded, e.g., from
eligibility for Congress or for citizenship, are not persons; more-
over, the assertedly ambiguous scope of other constitutional provi-
sions referring to persons provides no basis for anything but circular
arguments as to their scope. The alleged inconsistency of exceptions
in state anti-abortion laws with the personhood of unborn children
merely identifies possible constitutional defects in those laws; such
defects do not justify the categorical exclusion, from all constitu-
tional protection, of the class suffering discrimination. The sup-
posed laxity of state abortion legislation in much of the nineteenth
century is historically misleading because it ignores the fact that
stringent anti-abortion legislation, largely representing a response to
the scientific discovery of the humanity of unborn children from the
moment of fertilization, preceded and accompanied passage of the
fourteenth amendment. Furthermore, even prior to this legislation,
abortion was illegal at common law and, until after the technical
developments of the late eighteenth century, practically unavailable
and virtually suicidal.
Contrary to Roe, history, science, logic, law, and justice all
weigh in favor of including unborn children within the protection of
the fifth and fourteenth amendments. The framers of those amend-
ments clearly drew no distinction between “persons” and biological
“human beings.” Science demonstrates that each individual member
of the human race begins life at the moment of fertilization. Logic
supports no essential distinction between human beings on the basis
ee eed
3
of their dwelling inside or outside the maternal womb, or on the
basis of their status as “viable” or “nonviable” individuals. Legal
consistency supports the rejection of distinctions, in matters of basic
rights, between born and unborn children, as well as between “vi-
able” and “nonviable” unborn children. Finally, the intrinsic sanctity
of every human life compels the rejection of any arbitrary exclusion
of unborn children from entitlement to the most basic of human
rights.
This Court should overrule Roe v. Wade. Any challenge to the
Pennsylvania statutes predicated upon a supposed right to abortion
must accordingly fail.
A challenge to certain of the Pennsylvania statutes might rest
on the basis that these statutes provide insufficient protection for
unborn persons. Planned Parenthood has not raised or indicated any
wish to raise such constitutional objections; nor would Planned
Parenthood likely have standing to do so. The Attorney General of
Pennsylvania, however, who is a party to this case, may have
authority to vindicate the rights of unborn children. This Court
should therefore uphold the personhood of children conceived but
not yet born, and set this case for further briefing and reargument on
the question of the proper disposition of this appeal.
ARGUMENT
Planned Parenthood challenges the state statutes at issue in this
case on the basis of a supposed federal constitutional right to abor-
tion under the fourteenth amendment. See Brief for Petitioners and
Cross-Respondents §§ I, IV. The fourteenth amendment, however,
contains no “right” to abort developing human offspring. On the
contrary, that amendment explicitly secures the rights to life and to
equal protection for every human being.
As demonstrated in this brief, the term “person” as used in the
fourteenth and fifth amendments applies to all human beings, in-
cluding those conceived but not yet born. Accordingly, there can be
no “right” to abort such persons under either the fourteenth or the
fifth amendments. Planned Parenthood’s claim predicated upon such
a nonexistent “right” must fail.
4
I. THE TERM “PERSON” UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS INCLUDES ALL
HUMAN BEINGS.
The fifth amendment to the Constitution of the United States
provides that “[n]o person shall . . . be deprived of life, liberty, or
property, without due process of law.” U.S. Const. amend. V. The
fourteenth amendment provides that “[n]o State shall . . . deprive
any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of
the laws.” /d. amend. XI, § 1. These amendments secure protection
It is imperative that categories of human beings not be read out of
the terms of these amendments.
The Constitution is not a legislative code designed to specify
its application in every conceivable situation. “We do not expect to
find in a constitution minute details. It is necessarily brief and
comprehensive. It prescribes outlines, leaving the filling up to be
deduced from the outlines.” Legal Tender Cases, 79 U.S. (12 Wall.)
457, 532 (1870). Thus, the vitality of constitutional principles de-
pends upon their straightforward and faithful application.
If there were ever a term whose broad scope demands uncon-
ditional respect, it is the term “person.” For whoever is not a person
lacks not only the privileges of citizenship, but even the barest
minimum of human rights. A person need not have every right —
prisoners, minors, and aliens, for example, do not possess the full
panoply of rights and privileges afforded under the Constitution —
but a non-person has no rights whatsoever. A non-person is no
better off than property, entirely subject to the whim of the owner
and whatever permissible regulation the government may deign to
impose.
The constitutional protection for “persons” simply cannot func-
tion if each individual or class of human beings must prove explicit
inclusion in some unwritten catalogue of “persons.” Does the term
“person” include mentally disabled individuals? There is not likely
much, if any, explicit support for that particular proposition in the
text, history, or early application of the fifth and fourteenth amend-
ments. Yet these are certainly persons. E.g., City of Cleburne v.
5
Cleburne Living Center, Inc., 473 U.S. 432 (1985) (discrimination
tiny). Does “person” include citizens of hostile nations? Children
under the age of eighteen? Convicted misdemeanants or felons?
Comatose individuals? Each of these classes of human beings lacks
either the legal or physical ability to exercise certain rights, yet each
is unquestionably a class of persons. This is so, not because mem-
bers of each class can prove their particular inclusion under the fifth
and fourteenth amendments, but because they are included by virtue
of their humanity.' “They are humans, live, and have their being.”
Levy v. Louisiana, 391 U.S. 68, 70 (1968) (discussing illegitimate
children). Therefore, “[t}hey are clearly ‘persons’” within the mean-
ing of the Constitution. /d.
Human offspring conceived but not yet born are likewise
“humans, live, and have their being.” They are “a form of human
life,” Webster v. Reproductive Health Servs., 492 U.S. 490, 520
(1989) (plurality opinion), as are infants, toddlers, teens, adults, and
the elderly. As human beings, prenatal children do not need to
overcome any additional hurdles in order to establish their nght to
inclusion within the term “person” as used in the Constitution.’ Nor
' The importance of this fundamental point cannot be stressed enough:
The idea of human rights is based upon the notion that certain
rights obtain by virtue of being human and may be conditioned
upon no other requirement. An attempt to restrict entitlement to
those rights by the creation of criteria other than mere human-
ness is incompatible with the idea of “human rights” .
Gorby, The “Right” to an Abortion, the Scope of Fourteenth Amendment
“Personhood,” and the Supreme Court's Birth Requirement, 1979 S. Ul.
U.L.J. 1, 10 0.58 (emphasis added).
? As the Supreme Judicial Court of Massachusetts explained in a
different context,
In keeping with approved usage, and giving terms their ordinary
meaning, the word “person” is synonymous with the term
“human being.” An offspring of human parents cannot reason-
ably be considered to be other than a human being, and therefore
a person, first within, and then in normal course outside, the
womb. .. . By the use of the term[| “person” . . . the Legislature
has given no hint of a contemplated distinction between pre-born
and born human beings.
Commonwealth v. Cess, 392 Mass. 799, , 467 N.E.2d 1324, 1325
(1984) (construing vehicular homicide statute).
6
does any justification exist for the arbitrary exclusion of such chil-
dren from the protection of basic human rights under the Constitu-
tion.
Il. THERE IS NO JUSTIFICATION FOR EXCLUD-
ING FROM THE TERM “PERSON” THE CLASS
OF HUMAN BEINGS CONCEIVED BUT NOT
YET BORN.
In Roe v. Wade, 410 U.S. 113, 158 (1973), a majority of this
Court read into the term “person” in the fourteenth amendment an
exception for unborn children.’ There is no valid justification for the
creation of such an exception.
A. Roe v. Wade Gave No Valid Basis for Creating an
Exception for Unborn Children.
The Roe Court made several arguments to support its conclu-
sion that the word “person” does not include the unborn. None of
these arguments withstands analysis.
1. Alleged absence of precedent
First, the Court observed that “no case could be cited that
holds that a fetus is a person within the meaning of the Fourteenth
Amendment.” Roe v. Wade, 410 U.S. at 157.
This observation is factually incorrect. In Steinberg v. Brown,
321 F. Supp. 741 (N.D. Ohio 1970) (three-judge court), the court
rejected a challenge to Ohio’s abortion laws, holding that the im-
plied right to privacy
must inevitably fall in conflict with the express provisions
of the Fifth and Fourteenth Amendments that no person
shall be deprived of life without due process of law. The
difference between this Case and Griswold [overturning a
ban on the use of contraceptives] is clearly apparent, for
hare Rate & an Gane & [elas RGD GS gueeeing
itself.
> “The primary question presented in Roe was this: may the Court
create substantive exceptions to the enjoyment of fundamental nights where
none appear in the Constitution?” Destro, Abortion and the Constitution:
The Need for a Life-Protective Amendment, 63 Cal. L. Rev. 1250, 1288(1975).
7
Id. at 745-46 (emphasis added). As the court in Steinberg explained,
“a new life comes into being with the union of human egg and
sperm cells,” id. at 746, and “[o}nce human life has commenced, the
constitutional protections found in the Fifth and Fourteenth Amend-
Se ne id. at 746-
Moreover, as a legal matter, an absence or dearth of case
support for unborn personhood is irrelevant. There may well not be
any cases, for example, holding newborn infants to be persons. This
obviously does not mean, however, that such children are beyond
the scope of the fourteenth or fifth amendments. As discussed above,
such a cramped construction of the text would largely negate the
effect of these amendments.
2. Postnatal application of other constitutional
provisions
Second, the Court noted that the use of the word person in
“nearly all” other parts of the Constitution “is such that it has
application only postnatally. None [of these uses] indicates, with
any assurance, that it has any possible prenatal application.” Roe,
410 U.S. at 157 (footnote omitted). But this simply begs the ques-
the class of human beings to which they apply. E.g., U.S. Const. art.
I, § 2, cl. 2 (person must be at least age twenty-five to be a Represen-
tative); id. art. I, § 3, cl. 3 (person must be at least age thirty to be a
Senator); id. amend. XIV, § 1 (person who is bom, if born in the
United States, is a citizen). Such exclusions obviously do not imply
that those excluded (e.g., with respect to Representatives, those
under age twenty-five) are not persons. Moreover, those provisions
— lite the fifth and fourteenth amendments — that can apply to
unborn children,* e.g., id. art. I, § 9, cl. 1 (tax on importation of
* It bears mention that the holding of an office need not, in theory, be
limited to competent adults. History, for example, has seen numerous infants
wear the royal crown. Furthermore, unborn children have been explicitly
recognized as capable of serving as the executor of an estate. H. Storer,
Criminal Abortion in America 92 (1860) (“an infant in utero . . . at every
stage of [gestation], no matter how early, ... may be appointed executor
..”"). Accord Thellusson v. Woodford, 31 Eng. Rep. 117, 163 (Ch. 1798).
8
“persons”); id. amend. IV (security of the person against unreason-
able searches and seizures), contain no exclusion for any particular
class of children, born or unborn.
3. Apparent inconsistency of state anti-abortion
laws with personhood of unborn children
Third, the Court pointed to allegedly fatal inconsistencies in
the abortion laws of Texas and other states.
[I}f the fetus is a person who is not to be deprived of life
without due process of law, . . . does not the Texas
exception [for abortion necessary to save the life of the
mother] appear to be out of line with the Amendment’s
command? .. .
.. . If the fetus is a person, why is the woman not a
principal or an accomplice [to an unlawful abortion]? . . .
If the fetus is a person, may the penalties be different [for
abortion and first degree murder]?
Roe, 410 U.S. at 157 0.54.
Here the Roe Court confused two distinct issues: the constitu-
tionality of the Texas abortion laws, and the constitutional personhood
of unborn children.
The government, of course, may not exclude from the general
protection of the criminal law a particular class of innocent persons.”
This fundamental obligation does not disappear simply because the
* Whether an exception for the life of the mother would entail a denial
of equal protection would depend upon the scope of that exception. There is
a grave moral and legal difference between, on the one hand, allowing a
physician to remove an ectopic pregnancy or cancerous uterus from a
pregnant woman, with the death of her unborn child occurring as an
unintended effect of that necessary operation, and, on the other hand, giving
permission for the direct, intentional killing of the unborn child whenever
such is claimed to be necessary to save the mother’s life.
The total exemption of the pregnant woman herself from the scope of
criminal prohibitions against abortion would, like total parental immunity
from prosecution for serious child abuse, be unconstitutional. But cf, Gorby,
supra note 1, at 20 (lenient treatment of women who abort and reduced levels
(cont’d on next page)
9
government fails to comply with it. In Brown v. Board of Education,
347 U.S. 483 (1954) (Brown 1), for example, it would have been
outrageous to suggest that the long history and widespread practice
of segregated public education meant that black people were not
persons. On the contrary, this segregation represented a constitu-
Similarly, the denial of equal statutory treatment to unborn
children does not support a categorical denial of constitutional pro-
tection to such children. As the Court emphasized in Brown v.
Board of Education, 349 U.S. 294, 300 (1955) (Brown II), “the
vitality of . . . constitutional principles cannot be allowed to yield
simply because of disagreement with them.” If the state or federal
government in fact denies due process or equal protection to a class
of humans, the remedy is to declare the discrimination unconstitu-
tional, not to deny that members of the victimized class are persons.
To hold otherwise would be to deny the possibility of unconstitu-
ye sted a: neal
4. Alleged laxity of nineteenth century abortion
laws
Fourth, the Court cited its “observation” that “throughout the
major portion of the 19th century prevailing legal abortion practices
were far freer” than in 1973, Roe, 410 U.S. at 158, presumably as
evidence that the framers and those who ratified the fourteenth
amendment did not regard unborn children as human persons.
of punishment for offense of abortion not inconsistent with personhood of
unborn victim of abortion); Michael M. v. Superior Court, 450 U.S. 464
(1981) (sustaining, against equal protection challenge, statutory rape law
that only applied to male offenders). Prosecutorial discretion, of course, is
fully capable of handling situations in which the mother is more accurately
considered a victim instead of an offender.
The primary effect of holding the unborn child to be a person would be
that the child could no longer be regarded as beyond the equal protection of
the criminal law. In other words, if all of the elements of a statute defining
an offense against a person were satisfied, the statute could not be held
inapplicable simply because the victim was not yet born.
The state may properly create a separate and additional offense of
abortion which could apply without proof of pregnancy or causation of fetal
death. See infra note 14.
10
On this point the Roe opinion refutes itself. The fourteenth
amendment was adopted in 1868, precisely the time when the
scientific discovery of the humanity of the unborn had become
widely known, and precisely at the time when this discovery prompted
vigorous Opposition to abortion by means of numerous statutory
bans. See 410 U.S. at 129 (observing that abortion laws in effect in
1973 “derive from statutory changes effected, for the most part, in
the latter half of the 19th century”); id. at 141 (noting the “anti-
abortion mood prevalent in this country in the late 19th century”);
id. at 141-42 (noting that the concern of the medical profession for
prenatal human life destroyed by abortion “may have played a
significant role in the enactment of stringent criminal abortion legis-
lation during that period”); see also id. at 174-77 (Rehnquist, J.,
dissenting) (noting the multiplicity of state and territorial anti-abor-
tion laws at the time of the adoption of the fourteenth amendment).
Furthermore, the assumption by the Roe Court that abortion
was freely and legally available, even in the early part of the nine-
teenth century, simply ignores reality. As Professor Joseph W.
Dellapenna has demonstrated, the primitive state of medical tech-
nology meant that, prior to the late eighteenth century, abortion
techniques were either ineffective or so dangerous as to be practi-
cally suicidal. Dellapenna, The History of Abortion: Technology,
Morality, and Law, 40 VU. Pitt. L. Rev. 359, 371-76 (1979).° Thus,
while abortion was indeed unlawful at common law, prosecutions
were infrequent because they were unnecessary. Dellapenna, “Abor-
tion and the Law,” in Abortion and the Constitution 137, 146 (D.
Horan, E. Grant & P. Cunningham eds. 1987).
During this period, techniques to induce abortions were
either magical, and hence punishable as witchcraft (whether
they were successful or not), or extremely crude inva-
sions of the woman’s body, likely to be fatal to the woman
as well as to the fetus. In the few cases where an abortion-
ist was punished, it was for killing the mother. In fact,
* It would therefore be nonsensical to claim that women had a legal
“liberty to abort” during the period preceding enactment of the fifth amend-
ment.
11
there is no evidence of voluntary abortion during this
time. Abortions, if they occurred, seem to have resulted
from assaults upon women rather than by their choice.
Even then, abortion prosecutions were hampered by igno-
rance of medical knowledge about the gestation process.
The net result of these circumstances was that abortion
was rare and the law did not have to deal with it because
hanging the abortionist for killing the mother was suffi-
cient punishment for the few cases that did arise.
Id. at 145 (footnotes omitted). The disposal of “unwanted” children
was effectuated instead by infanticide. /d. (citing numerous authori-
ties). When new abortion techniques finally became available in the
late eighteenth century, the result was the initiation of anti-abortion
legislation. Jd. at 146. This legislative movement subsequently ex-
panded in response to embryological discoveries that identified
fertilization as the beginning of human life. /d. at 147.’
B. No Other Basis Exists For Creating an Exception
for Unborn Children.
Roe failed to give any justification for reading an exception for
unborn children into the scope of the term “person” as used in the
fourteenth amendment. Nor does any valid justification appear from
other sources. On the contrary, history, science, logic, law, and
justice all militate against the imposition of any such arbitrary
limitation on personhood as birth or viability.
1. The framers ofthe fourteenth amendment did
not distinguish between “human beings” and
“persons.”
Roe v. Wade distinguished between human beings and per-
sons, holding that unborn children were not persons even if they
”’ Another scholar has analyzed the scope, terminology, penalty pro-
visions, statutory classification and context, and history of anti-abortion
legislation in the nineteenth century to demonstrate that “the legislatures
ratifying the fourteenth amendment did consider human fetuses to be
.” Witherspoon, Reexamining Roe: Nineteenth-Century Abortion
Statutes and the Fourteenth Amendment, 17 St. Mary's L.J. 29, 31 (1985)
(providing extensive legal and historical analysis).
12
were human beings. 410 U.S. at 159 (“We need not resolve the
difficult question of when life begins”). Such a distinction, however,
was foreign to the men who proposed and adopted the fourteenth
amendment.®
If one thing is overwhelmingly clear from the recurd of the
debates leading up to and surrounding the thirteenth and fourteenth
amendments and the post-war civil rights legislation, it is that the
legislators considered personhood and biological humanity to be
interchangeable terms.
Thus Representative Thaddeus Stevens, on the day the thir-
teenth amendment was declared ratified, proclaimed:
This is man’s Government; the Government of all men
alike; not that all men will have equal power and sway
within it. Accidental circumstances, natural and acquired
endowment and ability, will vary their fortunes. But equal
rights to all the privileges of Government is innate in
every immortal being, no matter what the shape or color
of the tabernacle which it inhabits.
Cong. Globe, 39th Cong., 1st Sess. 74 (1865) (emphasis added).
Likewise Representative John A. Bingham, author of section
one of the fourtgémttramendment, declared in reference to the fifth
amendment the principle he viewed as fundamental:
[T]he Constitution of the United States . . . declared that
“no person shall be deprived of life, liberty, or property
without due process of law.” By that great law of ours it is
not inquired whether a man is “free” by the laws of
England; it is only to be inquired is he a man, and there-
* The same conclusion applies to the framers of the fifth amendment.
The founding fathers considered even slaves to be persons. See U.S. Const.
art. I, § 2, cl. 3 (distinguishing between “free Persons” and “other Persons”
for purposes of apportionment of taxes and legislators). There is no reason
to believe that these same men, when adding the fifth amendment, denied the
personhood of certain human beings. Indeed, the framers of the fourteenth
amendment, who clearly repudiated the notion of a distinction between
“persons” and “human beings,” see infra, saw their work as the vindication,
not the rejection, of the political theory of the framers of the Bill of Rights.
13
fore free by the law of that creative energy which breathed
into his nostrils the breath of life, and he became a living
Before that great law the only question to be asked of a
creature claiming its protection is this: Is he a man?
Every man is entitled to the protection of American law,
because its divine spirit of equality declares that all men
are created equal.
Cong. Globe, 40th Cong., Ist Sess. 542 (1867) (emphasis added).
Representative James S. Brown, similarly, denied the notion
[D]oes the term “person” carry with it anything further
than a simple allusion to the existence of the individual? It
certainly cannot be strained into any recognition of sla-
very, since the very recognition of personality excludes
[an institution which] does not regard its victims as per-
sons but as chattels.
Cong. Globe, 38th Cong., Ist Sess. 1753 (1864).
Indeed, examples are legion to demonstrate the basic assump-
tion of the framers and their contemporaries that “in the eyes of the
Constitution, every human being within its sphere . . . from the
President to the slave, is a person.” Cong. Globe, 37th Cong., 2d
Sess. 1449 (1862) (Sen. Sumner) (first emphasis added).’
- * E.g., Cong. Globe, 39h Cong., Ist Sess. 77 (1866) (Sen. Trumbull)
(“any legislation or any public sentiment which deprives any human being
in the land of those great rights of liberty will be in defiance of the
constitution”); id. at 322-23 (Sen. Trumbull) (“great object of securing to
every human being within the jurisdiction of the Republic equal rights before
the law”); id. at 1159 (Rep. Windom) (rights to life, liberty, and pursuit of
happiness are “rights of human nature,” and the most basic “right of human
nature [is] the right to exist”); id at 1151 (Rep. Thayer) (“relief of human
nature” secured in-thirteenth amendment); 3 Cong. Rec. 1794 (1875)
(Senator Allen G. Thurman) (may not deny equal protection to “any person”
in the jurisdiction, “be he sane or be he insane, be he old or be he young, be
he innocent or he criminal, be he learned or be he ignorant”) (emphasis
added).
14
There is, therefore, no warrant for the conclusion that a class of
human beings might be excluded from the persons protected under
the fourteenth amendment. As forcefully stated by Representative
Joshua R. Giddings,
Our fathers, recognizing God as the author of human
life, proclaimed it a “self-evident” truth that every human
being holds from the Creator an inalienable right to live . . .
. . . If this right be denied, no other can be acknow!-
edged. If there be exceptions to this central, this universal
proposition, that all men, without respect to complexion
or condition, hold from the Creator the right to live, who
shall determine what portion of the community shall be
slain? And who may perpetrate the murders?
Cong. Globe, 35th Cong., Ist Sess. App. 65-66 (1858) (emphasis in
original).
2. Science rejects the exclusion of unborn chil-
dren from the class of human beings.
Science does not purport to identify the value society should
place upon human life. Science does indisputably show, however,
that each individual human organism begins life at the moment of
fertilization. See generally Krimmel & Foley, Abortion: An Inspec-
tion into the Nature of Human Life and Potential Consequences of
Legalizing its Destruction, 46 U. Cin. L. Rev. 725, 744-62 (1977)
(analysis of biochemical and genetic evidence shows that the life of
a specific human being begins at conception). Thus science offers
no valid basis for excluding prenatal human life from the category
of “persons” protected under the Constitution.
However one answers the metaphysical or theological
question whether the fetus is a “human being” or the legal
question whether it is a “person” as that term is used in the
Constitution, one must at least recognize, first, that the
fetus is an entity that bears in its cells all the genetic
information that characterizes a member of the species
homo sapiens and distinguishes an individual member of
that species from all others, and second, that there is no
15
nonarbitrary line separating a fetus from a child or, in-
deed, an adult human being.
Thornburgh v. American College of Obstets. & Gynecs., 476 U.S.
747, 792 (1986) (White, J., joined by Rehnquist, J., dissenting).
This principle of continuous development is not unique to
human beings.
In biology and in medicine, it is an accepted fact that the
life of any individual organism reproducing by sexual
reproduction begins at conception, or fertilization — the
time when the egg cell from the female and sperm cell
from the male join to form a single new cell, the zygote.
The zygote is the starting cell of the new organism.
... It is important to also remember . . . that like begets
like. In other words, the zygote is always a member of the
biological species of its parents from the time of fertiliza-
tion throughout all of its life, before as well as after birth.
No study or experiment has ever refuted these scientific
facts, and no competent scientist denies them.
The Human Life Bill: Hearings on S.158 Before the Subcomm. on
Separation of Powers of the Senate Comm. on the Judiciary, 97th
Cong., Ist Sess. 14, 16 (1982) (testimony of Dr. Micheline Mathews-
Roth, principal research associate, Dept. of Medicine, Harvard Medi-
cal School) (emphasis added). The conclusion in the case of human
life rests, therefore, not only upon human cmbryological research,
but upon the findings of a broad area of biological study.
So, therefore, it is scientifically correct to say that an
individual human life begins at conception, when egg and
sperm join to form the zygote, and that this developing
human always is a member of our species in all stages of
its life.
Id. at 17. Accord W. Hamilton & H. Mossman, Human Embryol-
ogy 14 (4th ed. 1972) (“the fusion of two germ cells . . . one, the
spermatozoan from the male parent; the other, the ovum from the
female parent . . . is the formation of the first cell of the new
individual, the zygote”); L. Arey, Developmental Anatomy 55 (7th
16
ed. 1974) (union “of a male and female sex cell . . . definitely marks
the beginning of a new individual”); K. Moore, The Developing
Human: Clinically Oriented Embryology 1 (2d ed. 1977) (a zygote
“results from fertilization of an oocyte by a sperm and is the begin-
ning of human life’’).'°
Science cannot identify a spiritual soul or assign a moral value
to a given creature. Science does identify individual members of a
particular species, such as homo sapiens. Unborn children are un-
questionably individual members of this species, and thus the con-
clusions of science utterly reject the arbitrary exclusion of prenatal
humans from the term “person.”
3. Logic militates against the creation of an excep-
tion for unborn children in the term “person.”
According to Roe v. Wade, unborn children are non-persons,
and aborting such children is a constitutional right. But it is plainly
absurd to draw so tenuous a border as birth (or, for that matter,
viability) between what is a constitutional liberty and what is homi-
cide.
First of all, the act of abortion itself cannot sensibly be what
distinguishes between persons and non-persons. Presumably no mem-
ber of this Court would deny that “a newborn infant, whether the
product of a normal birth or an abortion,” Planned Parenthood
Ass'n of Kansas City, Mo. v. Ashcroft, 462 U.S. 476, 503 n.10 (1983)
(Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., dis-
senting), is a person under the fifth and fourteenth amendments.
"° See also Corkey v. Edwards, 322 F. Supp. 1248 (W.D.N.C. 1971),
vacated, 410 U.S. 950 (1973):
During fertilization, sperm and egg pool their nuclei and chro-
mosomes. Biologically, a living organism belonging to the
species homo sapiens is created out of this organization. Geneti-
cally, the adult man was from such a beginning all that he
essentially has become in every cell and human attribute.
322 F. Supp. at 1252 (citations omitted). Accord Rosen v. Louisiana State
Bd. of Medical Examiners, 318 F. Supp. 1217, 1223 (B.D. La. 1970),
vacated, 412 U.S. 902 (1973); Steinberg v. Brown, 321 F. Supp. 741, 746-
47(N.D. Ohio 1970) (three-judge court); Presley v. Newport Hosp., 117 RL.
177, _, 365 A.2d 748, 751 (1976).
17
The point of detachment from the mother — whether by
normal birth, induced delivery, or abortion — likewise fails as a
logical point for creating an exception to personhood. For a consid-
erable period prior to birth, the unborn child is viable, and thus
capable of surviving premature delivery. The child of seven or eight
months’ gestation who still resides in the maternal womb is essen-
tially indistinguishable from the child of identical age who has been
born prematurely.
unborn children of the same age for purposes cf citizenship. See
U.S. Const. amend. XIV, § 1 (“persons bor . . . in the United States
..+ are citizens”). But citizenship is a political classification the
boundaries of which are necessarily arbitrary.
Personhood, in contrast, entitles an individual to the basic,
minimal protections accorded to humanity. Whether the mother in
labor while traveling interstate gives birth in Texas today or Mexico
tomorrow is a question with political ramifications for the child:
such incidental details, however, cannot reasonably determine
whether the child may be slain. “No governmental power exists to
say that a viable fetus should not have every protection required to
preserve its life.” Thornburgh, 476 U.S. at 784 (Burger, C.J., dis-
senting). As Senator Arthur S. Boreman explained in regard to the
then recently enacted protections of the fourteenth amendment:
This . . . is not confined to citizens of the Onited States,
but it includes every person that is found within these
States, and guaranties to all life, liberty, and property, and
equal protection of the laws. . . . It is not restricted to guaran-
tying the-right of a “citizen” . . . but it extends to every
“person,” whether he has come from another State or not,
to every person residing anywhere, everywhere, within
the United States. So that while, before this amendment,
if there was any question whether there were any class of
persons in this country over whom the protection of the
Constitution of the United States was not extended, there
Cannot now be any longer any question on that subject.
Cong. Globe, 42nd Cong., Ist Sess. App. 229 (1871) (emphasis
added).
18
The total meaninglessness of birth as a criterion for
personhood is more apparent today than ever, when induced,
“scheduled” deliveries are commonplace, when babies are re-
on life support systems solely to await the delivery of the unin-
jured child within the womb."' Birth changes where the person is,
not what the person is.
Nor does the concept of viability supply a logical alterna-
tive to birth as a boundary for excluding some unborn children
from personhood.
If we profess allegiance to reason, it would be seditious
to adopt so arbitrary and uncertain a concept as viabil-
ity as a dividing line between those persons who shall
enjoy the protection of our remedial laws and those
who shall become, for most intents and purposes, non-
entities. It seems that if live birth is to be characterized,
as it so frequently has been, as an arbitrary line of
demarcation, then viability, when enlisted to serve that
same purpose, is a veritable non sequitur.
Presley v. Newport Hosp., 117 R.1. 177, __, 365 A.2d 748, 754
(1976).
Members of this Court have already strongly criticized reli-
anee upon the concept of viability for drawing constitutional
lines. Webster v. Reproductive Health Services, 492 U.S. 490,
519 (1989) (plurality opinion). See, e.g., City of Akron v. Akron
Center for Reprod. Health, Inc., 462 U.S. 416, 456-58 (1983)
(O’Connor, J., joined by White and Rehnquist, JJ., dissenting)
(point of viability is unstable because tied to contemporaneous
'' Already in vitro fertilization, embryonic transfer, and surrogate moth-
erhood have demonstrated beyond all doubt the fundamental biological inde-
pendence of the newly conceived child from any particular woman, genetic
mother or not, and the capacity of an unborn child to live outside of the womb
altogether, if only for the initial stages of development. It is now clear, in other
words, that intrauterine gestation is not even the first stage of life, but is merely
an intermediate stage subyect to technical manipulation regarding buth its
duration and the identity of the woman who bears the child.
19
state of medical technology, and is therefore unsuitable as a basis
for judicial decision making). Justice White, in his dissent in
Thornburgh, elaborated upon this point with regard to the state
interest in protecting human life:
The government interest at issue is in protecting those
who will be citizens if their lives are not ended in the
womb. The substantiality of this interest is in no way
dependent on the probability that the fetus may be
capable of surviving outside the womb at any given
point in its development, as the possibility of fetal
survival is contingent on the state of medical practice
and technology, factors that are in essence morally and
constitutionally irrelevant. The State’s interest is in the
fetus as an entity in itself, and the character of this
entity does not change at the point of viability under
conventional medical wisdom. Accordingly, the State’s
interest, if compelling after viability, is equally com-
ling before viability.
476 US. at 795 (White, J., joined by Rehnquist, J., dissenting)
(footnote omitted). The same rationale applies to constitutional
personhood, i.e., the claim to minimal protection of basic human
rights. One’s capacity for survival is “constitutionally irrelevant”
because “the character of the entity does not change at the point
of viability.”
The very notion of viability as a criterion for denying legal
protection is gravely flawed. Viability is not a transcendent con-
cept — it refers to conditional circumstances. The Arctic ex-
plorer is viable if sufficiently clothed. The serious diabetic is
viable if properly treated. The newborn, full-term infant is viable
if fed and nurtured. And the unborn child is viable if not prema-
turely expelled from the necessary environment, be it a petri dish
or a womb. To deny protection on the basis of one’s need for
protection is no more sensible than to deny those who cannot
swim the right to stay on board a ship. Roe stripped protection
from precisely those who most need the minimum safeguards of
the Constitution. This is topsy-turvy jurisprudence.
20
4. Legal consistency would not be served by the
exclusion of unborn children from the protec-
tion of the fifth and fourteenth amendments.
The integrity of the law is not served, but rather is harmed, by
the arbitrary exclusion of unborn children from constitutional pro-
tection. '? The history of legal developments of the past century and a
half regarding prenatal human life has been a history of increasing
recognition and protection of unborn children. The creation of an
exception to the fourteenth or fifth amendments which would deny
protection to such children represents a reversion to outmoded and
unworkable legal fictions, and leads to disrespect for the law.
The ordinary legal guardians of the civil rights to life, liberty,
and property are the criminal law and the law of torts. In both of
these areas of law, courts and litigants have struggled with, and to a
large extent overcome, the absurdity and injustice of arbitrary dis-
nonviable unborn children.
The common law is considerably older than contemporary
knowledge of prenatal human development. Ignorance of fertiliza-
tion and the nature of the human embryo consequently left its marks
on the common law. In particular, the considerable problems of
proof facing those alleging the perpetration of wrongs against un-
born children led to the recognition of various arbitrary rules. These
rules, for want of better guides, tied civil and criminal liability to
observable phenomena such as quickening (the detection of the
child moving in the womb) and live birth.
The criminal law has found it difficult to “outgrow” these
arbitrary rules, presumably because of a combination of stare decisis,
concern for advance notice to defendants of the criminality of par-
ticular conduct, and the rule of strict construction in favor of the
defendant. E.g., Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d
617, 87 Cal. Rptr. 481 (1970) (en banc). As a result, the general rule
21
today remains that the homicide of an unborn child cannot be
(1971). States have responded to this archaic requirement, how-
ever, by amending their criminal codes and specifying that the
destruction of an unborn child is a crime."
The law of torts has demonstrated a greater ability to “keep
pace with the sciences,” Bonbrest v. Kotz, 65 F. Supp. 138, 143
(D.D.C. 1946) (allowing action for prenatal injuries), and to adjust
its rules of liability in the face of increased scientific knowledge.
Thus, for example, the courts have overwhelmingly recognized the
right of a live child to recover for prenatal injuries, even if inflicted
prior to viability. Annotation, Liability for Prenatal Injuries, 40
A.L.R.3d 1222 (1971). Likewise, the courts universally allow re-
covery for the wrongful death of a child born alive whose injuries
were inflicted before birth. Annotation, Right to Maintain Action or
to Recover Damages for Death of Unborn Child, 84 A.L.R.3d 411
(1978). Similarly, after a protracted struggle over the issue, the
" But see Commonwealth v Lawrence, 404 Mass. 378, 536 N.E.2d
571 (1989) (homicide laws apply to slaying of viable unborn child); Com-
monwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984) (viable unborn
child is “person” under vehicular homicide statute); State v. Horne, 282 S.C.
444, 319 S.E.2d 703 (1984) (viable unbor child is “person” for purposes of
criminal homicide); State v. Burrell, 237 Kan. 303, 699 P_2d 499 (1985)
(applying involuntary manslaughter statute to death of viable unborn child).
“ E.g.,Cal. Penal Code § 187 (West 1988)(murder): Il. Ann. Stat. ch.
38, paras. 9-1.2, 9-2.1, 9-3.2 (Smith-Hurd Supp. 1991) (homicide and
manslaughter of unborn child); La. Rev. Stat. Ann. §§ 14:32.5-32.8 (West
Supp. 1992) (feticide); Minn. Stat. Ann. $$ 609.266 1 -609.2665, 609.268/1)
(West 1987 & Supp. 1992) (murder, manslaughter, and felony death of
unborn child); N.D. Cent. Code §§ 12.1-17.1-02 to 12.1-17.1-04 (Supp.
1991) (murder, manslaughter, and negligent homicide of unborn child).
One of the curious consequences of the difficulties in proving destruc.
tion of unborn children was that the lives of such children could better be
protected by laws prohibiting abortion without proof of pregnancy, destruc-
tion of the unborn child, or intent to destroy such child. The American
Medical Association incorporated precisely these features into its model
anti-abortion statutes in the nineteenth century. See 13 Transactions of the
American Medical Association 41-42 (1860), H. Storer, Criminal Abortion
in America 94, 97-100 (1860).
22
courts of a clear majority of jurisdictions — thirty-five states and the
District of Columbia, with eleven states opposed, and four undeter-
mined — now allow recovery for the wrongful death of a viable
unborn child who dies while still in the womb. /d."° And while few
courts have addressed the issue, already one state supreme court has
convincingly argued that wrongful death liability cannot sensibly be
'° ‘The following decisions allow recovery for the wrongful death of a
viable unborn child: Eich v. Gulf Shores, 293 Ala. 95,300 So. 2d 354 (1974);
Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712 (1985) (en
banc); Espadero v. yey 1480 (D. Colo. 1986); Gorke v.
Leclerc, 23 Conn. Supp. 256, a 2h aa oo
Ferrara, Inc., 50 Del. 258, 1 A meade fs Ah By red
Southeast Community Hosp. v. Williams, 482 A.2d 394 (D.C. 1984); Porter
v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1955); Wade v. United States,
745 F. Supp. 1573 (D. Haw. 1990); Volk v. Baldazo, 103 Idaho 570, 651 P.2d
11 (1982); Chrisafogeorgis v. Brandenberg, 55 Ul. 2d 368, 304 N.E.2d 88
(1973); Britt v. Sears, 150 Ind. App. 487, 277 N.E.2d 20 (1971); Hale v.
Manion, 189 Kan. 143, 368 P.2d 1 (1962); Mitchell v. Couch, 285 S.W.2d
901 (Ky. 1955); Danos v. St. Pierre, 402 So. 2d 633 (La. 1981); State ex rel.
Odham v. Sherman, 234 Md. 179, 198 A.2d 71 (1964); Mone v. Greyhound
Lines, Inc., 968 Mass. 354, 331 N.E.2d 916 (1975); O'Neill v. Morse, 385
Mich. 130, 188 N.W.2d 785 (1971); Verkennes v. Corniea, 229 Minn. 365,
38 N.W.2d 838 (1949); Rainey v. Horn, 221 Miss. 269, 72 So. 24434 (1954);
O'Grady v. Brown, 654 S.W.2d 904 (Mo. 1983); White v. Yup, 85 Nev. 527,
458 P.2d 617 (1969); Polinquin v. MacDonald, 101 N.H. 104, 135 A.2d 249
(1957); Salazar v. St. Vincent Hosp., 95 N.M. 150, 619 P.2d 826 (Ct. App.
1980), DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489, reh'g denied,
320 N.C. 799, 361 S.E.2d 73 (1987), Hopkins v. McBane, 359 N.W.2d 862
(N.D. 1984), appeal after remand, 427 N.W.2d 85 (N.D. 1988); Werling v.
Sandy, 17 Ohio St. 3d 45, 476 N.E.2d 1053 (1985); Evans v. Olson, 550 P.2d
924 (Okla. 1976); Libbee v. Permanente Clinic, 268 Or. 258, 518 P.2d 636,
reh'g denied, id., 520 P.2d 361 (1974); Amadio v. Levin, 509 Pa. 199, 501
A.2d 1085 (1985); Presley v. Newport Hospital, 117 R.1. 177,365 A.24 748
(1976); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); Re
Certification of Question of Law from United States District Court, 387
N.W.2d 42 (S.D. 1986), Vaillancourt v. Medical Center Hosp. of Vermont,
_ Inc., 139 Vt. 138, 425 A.2d 92 (1980); Moen v. Hanson, 85 Wash. 2d 597,
537 P.2d 266 (1975), Baldwin v. Butcher, 15S W. Va. 431, 184 S.E.2d 428
(1971); Kwaterski v. State Farm Mutual Ins. Co., 34 Wis. 2d 14, 148 N.W.2d
107 (1967). One additional state, Tennessee, has legislated this result. See Tenn.
Code Ann. § 20-5-106(c) (Supp. 1991) (legislatively overruling Hamby v.
McDaniel, 559 S.W.2d 774 (Tenn. 1977)). Thus, thirty-seven jurisdictions
now allow recovery for the wrongful death of a viable unborn child.
(cont'd on next page)
23
limited to wrongs inflicted upon viable unborn children. Presley v.
Newport Hosp., 117 R.L. 177, 365 A.2d 748 (1976)."*
Roe’s imposition of birth and viability requirements (as predi-
cates for personhood and a compelling state interest in protecting
prenatal life, respectively) therefore represented a major setback in
the law. See generally Bopp, Jr. & Colesoa, The Right to Abortion:
Anomalous, Absolute, and Ripe for Reversal, 3 B.Y.U. J. Pub. L.
181, 246-83 (1989) (survey of fetal rights in legal contexts other
than abortion). Roe purported to constitutionalize the very same
distinctions that the law of torts (and, to a lesser extent, crimes) was
in the process of finally and completely repudiating.
The consequences in terms of respect for the law are all too
obvious. The jealous ex-husband who forcibly aborts his pregnant
ex-wife’s child may be convicted of homicide, but the professional
abortionist cannot be. A woman who is hit by a car and miscarries
on the way to an abortion business may sue for the loss of the child
she planned to destroy. A disabled child may recover large sums to
compensate for harm suffered in the womb, but the mother could
have had that same child killed because she did not want a handi-
capped baby.
Such contrasts make a mockery of the law. The malleable and
uncertain lines separating viability from nonviability, or prematurity
from pregnancy, simply cannot support the difference between con-
Disallowing recovery are the following: Justus v. Atchison, 19 Cal. 3d
564, 565 P.2d 122, 139 Cal. Rptr. 97 (1977); Hernandez v.Garwood, 390 So.
2d 357 (Fla. 1980); McKillip v. Zimmerman, 191 N.W.2d 706 (lowa 1971);
Milton v. Cary Medical Center, 538 A.2d 252 (Me. 1988); Kuhnke v. Fisher,
683 P.2d 916 (Mont. 1984); Egbert v. Wenzl, 199 Neb. 573, 260 N.W.2d 480
(1977), Graf v. Taggart, 43 N.J. 303, 204 A.2d 140 (1964); Endresz v.
Friedberg, 24 N.Y 24478, 248 N.E.2d901, 301 N.Y .S.2465 (1969); Hamby
v. McDaniel, 559 S.W.2d 774 (Tenn. 1977), legislatively overruled, Tenn.
Code Ann. 20-5-106(c) (Supp. 1991); Witty v. American Gen. Capital
Distribs., Inc., 90 Tex. Sup. Ct. J. 244, 727 S.W.2d 503 (1987); Lawrence v. ~
Craven Tire Co., 210 Va. 138, 169 S.E.2d 440 (1969).
The courts of Alaska, Arkansas, Utah, and Wyoming have not yet
resolved the question.
‘* Another state has abolished the viability distinction by statute. II.
Ann. Stat. ch. 70, para. 2.2 (Smith-Hurd 1989).
24
stitutional rights and crimes. The shifting sands of consent to abor-
tion cannot support the distinction between homicidal torts and
constitutional liberties.
Either the unborn child is a person, or he is not. While the law
in theory can consider someone a person for some purposes and not
for others, in practice such artificiality results in contempt for a legal
system full of technicalities that contradict reality. The integrity of
the legal system calls for inclusion, not exclusion, of the class of
unborn children within the term “person” in the fifth and fourteenth
amendments.
5. Justice demands the inclusion of unborn chil-
dren within the term “person.”
Finally, considerations of justice call for the renunciation of
the arbitrary denial of equal protection to children who happen to
reside within their mothers’ wombs.
Not everyone has every right. But no one except a person has
any rights. Thus Roe v. Wade asked the wrong question when it
queried whether unborn children were “recognized in the law as
persons in the whole sense,” 410 U.S. at 162. The issue is not
whether children conceived but not yet born should receive the full
range of the rights of citizenship, such as the right to vote, but
whether they may lay claim to the barest minimum of human rights:
“the right to survive on a basis of equality with human beings
generally,” Rosen v. Louisiana State Bd. of Medical Examiners, 318
F. Supp. 1217, 1226 (E.D. La. 1970) (emphasis added), vacated,
412 U.S. 902 (1973). The law prior to Roe had generally accorded
that much recognition, and more, to the child in the womb. And in
so doing the law recognized a difference in kind between unborn
children and tonsils, worms, or trees. This difference is the differ-
ence of personhood.
This difference relates to “our basic concept of the essential
dignity and worth of every human being — a concept at the root of
any decent system of ordered liberty.” Milkovich v. Lorain Journal
Co., 110 S. Ct. 2695, 2708 (1990) (internal quotation marks and
citation omitted). As Justice Brennan put it in another context,
25
At bottom, the battle has been waged on moral grounds.
The country has debated whether a-society for which the
dignity of the individual is the supreme value can, without
a fundamental inconsistency, follow the practice of delib-
erately putting some of its members to death.
Furman v. Georgia, 408 U.S. 238, 296 (1972) (Brennan, J., concur-
ring) (overturning Georgia death penalty). If this observation holds
true with regard to the life of a convicted felon, it is much more so
for the innocent baby growing in the womb.
The answer to the fundamental moral issue is clear: society
“must treat its members with respect for their intrinsic worth as
human beings,” for “if the deliberate extinguishment of human
life has any effect at all, it more likely tends to lower our respect
for life and brutalize our values.’ /7. at 270, 303 (Brennan, J.,
concurring).
Justice Harlan, dissenting in Poe v. Ullman, 367 U.S. 497
(1961), emphasized the central role of tradition and history in the
interpretation of the Constitution. “A decision of this Court which
radically departs from it could not long survive, while a decision
which builds on what has survived is likely to be sound.” Jd. at 542
(Harlan, J., dissenting).
Roe v. Wade represents precisely such a radical departure from
the history, indeed the founding principles, of this nation. Like Betts
v. Brady, 316 U.S. 455 (1942), overruled in Gideon v. Wainwright,
372 U.S. 335 (1963), Roe “made an abrupt break” with what “seems
to us to be an obvious truth,” Gideon, 372 U.S. at 344: “We hold
these truths to be self-evident: that all men are created equal, that
they are endowed by their Creator with certain unalienable rights,
that among these are Life, Liberty, and the pursuit of Happiness.”
i of Independence para. 2 (U.S. 1776) (emphasis
).
The fifth and fourteenth amendments represent an “assur-
ance . . . that no man shall ever, in the coming future, as long as the
Republic stands ... be deprived of his life, of his liberty, or his
property without due process of law.”” Cong. Globe, 37th Cong., 2d
Sess. 1640 (1862) (Rep. Bingham). As this Court explained in West
26
Virginia Board of Education v. Barnette, 319 U.S. 624, 638 (1943),
the “very purpose” of a constitutional declaration of rights
was to withdraw certain subjects from the vicissitudes of
political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal
principles to be applied by the courts. One’s right to life
... and other fundamental rights may not be submitted to
a vote; they depend on the outcome of no elections.
Roe v. Wade created an exception to personhood where none
existed or could exist. This Court should now correct this funda-
mental injustice by overruling Roe v. Wade and upholding the right
to life and equal protection of all human beings, regardless of age,
size, health, or condition of dependency.”
Ill. THE PERSONHOOD OF THE UNBORN REQUIRES
THE REJECTION OF PLANNED PARENTHOOD’S
ATTACK UPON THE PENNSYLVANIA STATUTES.
The constitutional personhood of human beings conceived but
not yet born dictates the rejection of Planned Parenthood’s constitu-
tional challenge to the Pennsylvania statutes at issue here.
Planned Parenthood predicates its challenge upon an alleged
“abortion right,” Brief for Petitioners and Cross-Respondents at 15.
Such a “right,” however, is fundamentally inconsistent with the
right to life of persons conceived but not yet born. A “right” to abort,
where the life of an unborn person is at stake, would make no more
sense than “a liberty interest in firing a gun where the case at hand
happens to involve its discharge into another person ’s body,” Michael
H. v. Gerald D., 491 U.S. 110, 124 n.4 (1989) (plurality opinion).
As this Court acknowledged in Roe, “[iJf this suggestion of
personhood is established, the [challengers’] case, of course, col-
lapses, for the fetus’ right to life would then be guaranteed specifi-
cally by the [Fourteenth] Amendment.” 410 U.S. at 156-57.
‘7 The Executive Branch has already recognized the “unalienable
personhood” of unborn children as well as the fundamental importance of
upholding the equal right to life of unborn children under the fifth and
fourteenth amendments. Proclamation No. 5761, 3 C. F.R., 1988 Comp., p.
3. See Appendix (text of proclamation).
27
The personhood of unborn children imposes a duty upon the
state to afford equal protection to humans conceived but not born.
Cf. DeShaney v. Winnebago Dep’t of Social Servs., 489 U.S. 189,
197 n.3 (1989) (“the State may not, of course, selectively deny its
protective services to certain disfavored minorities without violating
the Equal Protection Clause”’) (citation omitted). “[Ljegislation, which
would remove the life of a person in the womb from the full and
equal protection of the law, would be discriminatory, as ‘irrational,’
and as inimical to the equal protection clause as the legislative
classification of races.” Byrn, Abortion in Perspective, 5 Dug. U.L.
Rev. 125, 135 (1966-67). As Justice Stevens observed in the
Thornburgh case, unless there is a “fundamental” difference be-
tween unborn and bom human offspring, “the permissibility of
terminating the life of the fetus could scarcely be left to the will of
the state legislatures.” 476 U.S. at 779 (concurring opinion) (foot-
note omitted). “For the very idea that one may be compelled to hold
his life . . . at the mere will of another, seems to be intolerable in any
country where freedom prevails, as being the essence of slavery
itself.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). See also
Cruzan v. Director, Mo. Dep’t of Health, 110 S. Ct. 2841, 2863
(1990) (Scalia, J., concurring) (“Our salvation is the Equal Protec-
tion Clause, which requires the democratic majority to accept for
themselves and their loved ones what they impose on you and
me”).'8
Thus, in view of the general prohibition of homicide, a proper
litigant could challenge the constitutionality of laws which did not
provide at least the minimum equal protection demanded by the
fourteenth amendment: the outlawing of all abortions.
'® Furthermore, “it would be unthinkable that the same Constitution
would impose a lesser duty on the Federal Government.” Bolling v. Sharpe, 347
U.S. 497, 500 (1954) (footnote omitted). The fifth amendment, while lacking
an explicit guarantee of equal protection, nevertheless also “contains an equal
protection component.” San Francisco Arts & Athletics, Inc. v. United States
Olympic Comm., 483 U.S. 522, 542 n.21 (1987) (citation omitted). “This
Court’s approach to Fifth Amendment equal protection claims has . . . been
precisely the same as to equal protection claims under the Fourteenth Amend-
ment.” /d. (internal quotation marks and citations omitted). Accord Regan v.
Taxation with Representation, 461 U.S. 540, 542 n.2 (1983).
28
Planned Parenthood has not challenged the Pennsylvania stat-
utes on this basis. Nor has Planned Parenthood indicated any desire
to do so. Moreover, it is far from clear that this private entity, which
is not a guardian of unborn children, and which promotes interests
diametrically opposed to those of such children, could have standing
to raise objections predicated upon the personhood of the unborn.
The Attorney General of Pennsylvania, however, who is a party to
this case, is a proper party to seek vindication of the rights of unborn
persons. This Court should therefore hold that the fourteenth amend-
ment protects unborn children as persons, and set this case for
further briefing and reargument on the question of the proper dispo-
sition of this particular appeal.’
'® The challenged reporting requirements of the Pennsylvania stat-
utes, 18 Pa. Cons. Stat. Ann. §§ 3207(b), 3214, are clearly constitutional.
Such official gathering of information about abortion is entirely consistent
with the constitutional rights of unborn persons.
violate the fourteenth amendment. Any law which categorically permits the
deliberate deprivation of an unborn child’s life invidiously denies equal
ion to such children. DeShaney v. Winnebago County Dep’t of Social
Servs., 489 U.S. 189, 197 n.3 (1989). Thus, the judicial bypass sections of the
Pennsylvania parental consent statute, which provide that a judge “shall
authorize” the abortion of a child under certain circumstances, 18 Pa. Cons.
Stat. Ann. § 3206(c), (d), are unconstitutional. ie
Some of the challenged statutes expressly contemplate the commission
of abortions, but may not in themselves affirmatively authorize abortions. See
18 Pa. Cons. Stat. § 3205 (informed consent), § 3206(a) (parental consent), §
3209 (spousal notice). If these laws were to be construed to authorize abortions,
they would be unconstitutional. On the other hand, these laws could be
construed to apply only to such abortions as are independently authorized under
other provisions of law. Under this interpretation, the challenged sections
would themselves pose no threat to the constitutional rights of unborn persons.
Once laws permitting or authorizing abortions gave way to recognition of the
constitutional rights to life and equal protection, laws merely assuming the
legality of abortion would become, as applied to abortion, dead letters. Thus, a
construction is readily available which saves, from facial unconstitutionality,
laws which only presuppose the legality of abortion. United States v. Salerno,
481 U.S. 739, 745 (1987) (facial constitutional challenge must establish that no
set of circumstances exist under which statute is valid).
The statutory definition of a medical emergency, 18 Pa. Cons. Stat. §
3203, bears directly upon the circumstances under which abortions are
(cont’d on next page)
29
This Court followed a similar course in the school desegrega-
tion cases. In Brown v. Board of Education, 347 U.S. 483 (1954)
(Brown I), this Court declared that racial segregation in public
education violated the fourteenth amendment. The Court then set
further proceedings to consider the implications of Brown I for the
resolution of the particular cases before it. See Brown v. Board of
Educ., 349 U.S. 295, 298-99 (1955) (Brown II). Recognition of the
constitutional rights of unborn children would, like the holding in
Brown I, represent a very significant vindication of fundamental
human rights. Thorough review of the ramifications of this holding,
as well as the proper means of upholding these rights in the case at
bar, would therefore be wise.
permitted under the other statutory sections. The constitutionality of this
statute therefore depends upon the scope of the emergency exception. The
phrase, “death or . . . serious risk of substantial and irreversible impairment
of bodily function” might be interpreted narrowly to encompass only those
actions — removal of an ectopic pregnancy or a cancerous uterus, for
example — which do not directly destroy the unborn child, which seek to
preserve the life of the child if possible, and which result in the death of the
child, if at all, only as an unintended consequence of an independently
justified operation. The availability of such a narrow, constitutionally
permissible construction suffices to defeat a facial challenge to the statute.
Salerno, 481 U.S. at 745.
30
CONCLUSION
There is no valid basis for excluding unborn children from the
fundamental protections afforded all persons under the fifth and
fourteenth amendments to the United States Constitution. This Court
should therefore overrule Roe v. Wade, 410 U.S. 113 (1973), and set
this case for further briefiag and reargument on the issue of the
proper disposition of this appeal.
Respectfully submitted,
Thomas Patrick Monaghan
Jay Alan Sekulow
Walter M. Weber
(Counsel of record)
C. Peter Thomas S. Cornell
James E. Murphy
Of Counsel: Free Speech Advocates
6375 New Hope Road
New Hope, KY 40052
(502) 549-5454
Charles E. Rice
Notre Dame Law School
Notre Dame, IN 46556
Thomas A. Glessner
Christian Action Council
Michael J. Laird 101 W. Broad St., Suite 500
608 S. Walnut Street Falls Church, VA 22046
Arlington Heights, IL 60006
Attorneys for Amici Curiae
APRIL 6, 1992
;
)
:
A-l
APPENDIX
PROCLAMATION 5761 — NATIONAL SANCTITY
OF HUMAN LIFE DAY, 1988
January 14, 1988
By the President of the United States of America
A PROCLAMATION
America has given a great gift to the world, a gift that drew
upon the accumulated wisdom derived from centuries of experi-
ments in self-government, a gift that has irrevocably changed
humanity’s future. Our gift is twofold: the declaration, as a cardinal
principle of all just law, of the God-given, unalienable rights pos-
sessed by every human being; and the example of our determination
to secure those rights and to defend them against every challenge
through the generations. Our declaration and defense of our rights
have made us and kept us free and have sent a tide of hope and
inspiration around the globe.
One of those unalienable rights, as the Declaration of Indepen-
dence affirms so eloquently, is the right to life. In the 15 years since
the Supreme Court’s decision in Roe v. Wade, however, America’s
unborn have been denied their right to life. Among the tragic and
unspeakable results in the past decade and a half have been the loss
of life of 22 million infants before birth; the pressure and anguish of
countless women and girls who are driven to abortion; and a cheap-
ening of our respect for the human person and the sanctity of human
life.
We are told that we may not interfere with abortion. We are
told that we may not “impose our morality” on those who wish to
allow or participate in the taking of the life of infants before birth:
yet no one calls it “imposing morality” to prohibit the taking of life
after people are born. We are told as well that there exists a “right”
to end the lives of unborn children; yet no one can explain how such
a right can exist in stark contradiction of each person’s fundamental
right to life.
That right to life belongs equally to babies in the womb, babies
born handicapped, and the elderly or infirm. That we have killed the
A-2
unborn for 15 years does not nullify this right, nor could any number
of killings ever do so. The unalienable right to life is found not only
in the Declaration of Independence, but also in the Constitution that
every President is sworn to preserve, protect, and defend. Both the
Fifth and Fourteenth Amendments guarantee that no person shall be
deprived of life without due process of law.
All medical and scientific evidence increasingly affirms that
children before birth share all the basic attributes of human person-
ality — that they in fact are persons. Modern medicine treats unborn
children as patients. Yet, as the Supreme Court itself has noted, the
decision in Roe v. Wade rested upon an earlier state of medical
technology. The law of the land in 1988 should recognize all of the
medical evidence.
Our Nation cannot continue down the path of abortion, so
radically at odds with our history, our heritage, and our concepts of
justice. This sacred legacy, and the well-being and the future of our
country, demand that protection of the innocents must be guaran-
teed and that the personhood of the unborn be declared and de-
fended throughout our land. In legislation introduced at my request
in the First Session of the 100th Congress, I have asked the Legisla-
tive branch to declare the “humanity of the unborn child and com-
pelling interest of the several states to protect the life of each person
before birth.” This duty to declare on so fundamental a matter falls
to the Executive as well. By this Proclamation I hereby do so.
Now, Therefore, I, Ronald Reagan, President of the United
States of America, by virtue of the authority vested in me by the
Constitution and laws of the United States, do hereby proclaim and
declare the unalienable personhood of every American, from the
moment of conception until natural death, and I do proclaim, ordain,
and declare that I will take care that the Constitution and laws of the
United States are faithfully executed for the protection of America’s
unborn children. Upon this act, sincerely believed to be an act of
justice, warranted by the Constitution, I invoke the considerate
judgment of mankind and the gracious favor of Almighty God. |
also proclaim Sunday, January 17, 1988, as National Sanctity of
Human Life Day. | call upon the citizens of this blessed land to
gather on that day in their homes and places of worship to give
A-3
thanks for the gift of life they enjoy and to reaffirm their commit-
Ne een emmy Of every human being and the sanctity of every
In Witness Whereof, I have hereunto set my hand this 14th
day of January, in the year of our Lord nineteenth hundred and
eighty-eight, and of the Independence of the United States of America
the two hundred and twelfth.
RONALD REAGAN
AMICUS CURIAE
BRIEF
IN THE
Supreme Court of the United States
; OcTOBER TERM, 1991
PLANNED PARENTHOOD OF
SOUTHEASTERN PENNSYLVANIA, et al.,
Petitioners and
Cross-Respondents,
Vv.
ROBERT P. CASEY, et al.,
Respondents and
Cross-Petitioners.
On Writs of Certiorari to the
United States Court of Appeals
for the Third Circuit
BRIEF OF CERTAIN AMERICAN STATE LEGISLATORS
AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
IN NO. 91-744, AND PETITIONERS IN NO. 91-902
PAUL BENJAMIN LINTON *
AMERICANS UNITED FOR LIFE
343 S. Dearborn Street
Suite 1804
Chicago, Illinois 60604
(312) 786-9494
Counsel for Amici Curiae
April 6, 1992 * Counsel of Record
WILSON - Epes Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001
TABLE OF CONTENTS
TD GID ccccccccneccessccsccccsssnscesecencsceseeces
INTEREST OF THE AMICI 0uoo..........-..sccccecceceeeeesesees
Il.
Ill.
IV.
IN THE CONCEPT OF ORDERED LIBERTY
AND HISTORICALLY AND TRADITION-
ALLY CONSIDERED BEYOND THE PROPER
SCOPE OF GOVERNMENT REGULATION,
ARE PROTECTED BY THE RIGHT OF
EE er
THE COMMON LAW OF ENGLAND, AS RE-
CEIVED BY THE AMERICAN COLONIES
AND STATES, PROHIBITED AND PUN-
ISHED ABORTION AFTER QUICKENING
AS A CRIMINAL OFFENSE ............................
THE NINETEENTH CENTURY ABORTION
STATUTES, WHICH ABOLISHED THE
COMMON LAW QUICKENING DISTINCTION
AND PROHIBITED ABORTION THROUGH-
OUT PREGNANCY EXCEPT TO SAVE THE
LIFE OF THE MOTHER, WERE ENACTED
WITH AN INTENT TO PROTECT UNBORN
EE eo
IN VIEW OF THE LONG-STANDING CON-
DEMNATION OF ABORTION IN ENGLISH
AND AMERICAN COMMON LAW, AND THE
OVERWHELMING EVIDENCE THAT NINE-
TEENTH CENTURY ABORTION STATUTES
WERE ENACTED WITH AN INTENT TO
PROTECT UNBORN HUMAN LIFE, THERE
IS NO HISTORICAL BASIS FOR CONCLUD-
ING THAT EITHER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMEND-
MENT OR THE RIGHT OF PRIVACY
WHICH HAS BEEN DERIVED THEREFROM
ENCOMPASSES A FUNDAMENTAL RIGHT
I
CONCLUSION ....... écnaehbetnpenasseacenddguessoceseasesenssesua
11
28
30
ii
TABLE OF AUTHORITIES
Cases: Page
American Cases:
Abrams v. Foshee, 3 Iowa 273 (1856) ..0.0..00000000.... 9,17
American College of Obstetricians & Gynecologists
v. Thornburgh, 737 F.2d 283 (8rd Cir. 1984),
aff'd, 476 U.S. 747 (1986) 29
Anderson v. Commonwealth, 190 Va. 665, 58
S.E.2d 72 (1950) 16
Arnold v. Gaylord, 16 R.I. 573, 18 A. 177 (1889).. 10
Beecham v. Leahy, 130 Vt. 164, 287 A.2d 836
| 30
Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108
(BBB) <..ccccccacssccnscsceutinnnsienenniieamntasniannnnantnnnnnnn 17
Bowers v. Hardwick, 478 U.S. 186 (1986) 0.0000... 4-6, 29
Bowlan v. Lunsford, 176 Okla. 115, 54 P.2d 666
C1BBB) ..cocccscssssesseetiscenissiaaaaean 16, 21
Cheaney v. State, 259 Ind. 138, 285 N.E.2d 265
{| ee 22
Committee to Defend Reproductive Rights v.
Myers, 29 Cal.8d 252, 172 Cal.Rptr. 866, 625
BBE TIO (IGBE) ncccccnsssvcesececsutiseianneene 30
Commonwealth v. Bangs, 9 Mass. 387 (1812)......... 9
Commonwealth v. Parker, 50 Mass. (9 Met.) 263
(12GB) noncsccsccrssssstonnssnemtenseimntamann 9
Commonwealth v. W., 3 Pittbs. R. 462 (1871) ....... 17
Doe v. Bolton, 410 U. 's. 179 (1973) . 29
Doe v. Rampton, No. C-234-70 (D. Utah 1971),
vacated and remanded, 410 U.S. 950 (19738) ....... 18
Dougherty v. The People, 1 Colo. 514 (1872) ........ 16, 18
Dunn v. People, 29 N.Y. 523 (1864) 000. 24
Earlil v. People, 99 Ill. 123 (1881) ..000000... - 17
Eggart v. State, 40 Fla. 527, 25 So. 144 (1898)..... 9
Eisenstadt v. Baird, 405 U.S. 488 (1972) ............... 6
Evans v. People, 49 N.Y. 86 (1872) ...00.0000000000...... 10
Foster v. State, 182 Wis. 298, 196 N.W. 233
(2GBB) ...<ccorceseceesssnnnseenasvenienesinmaanaennannn 18
Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689
(RGF) .n.ccccvscccesssesnocnscnnssecnennsuiiaieansnnnnnnnnE 16
Griswold v. Connecticut, 381 U.S. 479 (1965) ....... 6
Hall v. People, 119 Colo. 141, 201 P.2d 382
| : 16
iii
TABLE OF AUTHORITIES—Continued
Page
Hans v. State, 147 Neb. 67, 22 N.W.2d 385 (1946),
on rehearing, 147 Neb. 73, 25 N.W.2d 35
| 17
Hatchard v. State, 79 Wis. 357, 48 N.W. 2380
(1891) 18
In re T.W., 551 So.2d 1186 (Fla. 1989) -................. 30
Joy v. Brown, 173 Kan. 833, 252 P.2d 889
(1953) a an 16, 21
Lamb v. State, 67 Md. 524, 10 A. 208 (1887) ........ 10, 17
Loving v. Virginia, 388 U.S. 1 (1967) .................-... 6
Margaret S. v. Edwards, 488 F. Supp. 181 (E.D.
OE ee 29
Marmaduke v. People, 45 Colo. 357, 101 P. 337
SETI cnscniidpenesecessasatesddinaseesseswssqumedenemmnecsessasensszssesces 10
McClure v. State, 214 Ark. 159, 215 S.W.2d 524
ee 17
Meyer v. Nebraska, 262 U.S. 390 (1923) ................ 4
Michael H. v. Gerald D., 491 U.S. 110 (1989) —...... 5-6, 29
Miller v. Bennett, 190 Va. 162, 56 S.E.2d 217
ee 16, 21
Mills v. Commonwealth, 13 Pa. 630 (1850) ........... 10
Mitchell v. Commonwealth, 78 Ky. 204 (1879) -.... 9
Moe v. Secretary of Admin. and Finance, 382
Mass. 629, 417 N.E.2d 387 (1981) ...................... , 30
Moore v. East Cleveland, 431 U.S. 494 (1977) ..... 5,7
Nash v. Meyer, 54 Idaho 283, 31 P.2d 273 (1943).. 16
National Bank v. County of Yankton, 101 U.S. 129
STI siasinstrhtsenstintttepemnintanimamemeemapensesmmmnnnennnanmnecesen 14
Nelson v. Planned Parenthood Center of Tucson,
Inc., 19 Ariz. App. 142, 505 P.2d 580 (1973),
modified on rehearing pursuant to Roe .............. 22
Palko v. Connecticut, 302 U.S. 319 (1987) ............ 4,5
Passley v. State, 194 Ga. 327, 21 S.E.2d 230
EEE ee 16, 21
People v. Belous, 71 Cal.2d 954, 458 P.2d 194, 80
Ne 17
People v. Lovell, 40 Misc. 2d 458, 242 N.Y.S.2d 959
(1963) .. 16, 22
People v. Nizon, “42 Mich. “App. 332, 201 N.W.2d
635 (1972), on remand, 50 Mich. App. 39, 212
TT 17
iv
TABLE OF AUTHORITIES—Continued
Page
People v. Olmstead, 30 Mich. 431 (1874) ............. 17
People v. Sessions, 58 Mich. 594, 26 N.W. 291
EE ee a --. 917
Pierce v. Society of Sisters, 268 U. S. 510 (1925)... 6
Railing v. Commonwealth, 110 Pa.St. 100, 1 A.
314 (1885) PoE a ee Se 17
Right to Choose v. Byrne, 91 N.J. 287, 450 A.2d
EASES Se A ae oN 30
Rodgers v. Danforth, 486 S.W.2d 258 (Mo. 1972).. 22
Roe v. Wade, 410 U.S. 118 (1978) ........................... passim
Rosen v. Louisiana Board of Medical Examiners,
318 F. Supp. 1217 (E.D. La. 1970), vacated and
remanded, 412 U.S. 902 (1973) 220.0... ccceeeeee eee 16
Sasaki v. Commonwealth, 485 S.W.2d 897 (Ky.
1972), vacated and remanded, 410 U.S. 951
RE 22
Schulte v. Douglas, 567 F. Supp. 522 (D. Neb.
1981), aff'd per curiam, sub nom. Womens’
Servs., P.C. v. Douglas, 710 F.2d 465 (8th Cir.
TEED sccsirinharandasinntitienislentiiadriaitncmnniunintiihiainsiiialasiat ticestiasian 29
Scott v. State, 49 Del. 401, 117 A.2d 831 (1955)... 17
Skinner v. Oklahoma, 316 U.S. 535 (1942)... 6
Smith v. Gaffard, 31 Ala. 45 (1857) 2.000000. 9
Smith v. State, 33 Me. 48 (1851) 2.000. 9,17,18
Smith v. State, 112 Miss. 802, 73 So. 793 (1916),
overruled on other grounds, Ladnier v. State,
155 Miss. 348, 124 So. 432 (1929) 0. 17
Snyder v. Massachusetts, 291 U.S. 97 (1934)... 4
Stanley v. Georgia, 394 U.S. 557 (1969)... 6
State v. Alcorn, 7 Idaho 599, 64 P. 1014 (1901) _.. 16
State v. Atwood, 54 Or. 526, 102 P. 295 (1909),
aff'd on reh., 54 Or. 526, 104 P. 195 (1909)... 16
State v. Ausplund, 86 Or. 121, 167 P. 1019 (1917).. 16, 20
State v. Bassett, 26 N.M. 477, 194 P. 867 (1921)... 17, 21
State v. Cooper, 22 N.J.L. 52 (1849) 2000... 9
State v. Cox, 197 Wash. 67, 84 P.2d 357 (1938)... 16
State v. Crook, 16 Utah 212, 51 P. 1091 (1898)... 17,19
State v. Dickinson, 41 Wis. 299 (1877) 00... 18
State v. Emerich, 13 Mo. App. 492 (1883), aff'd,
87 Mo. 110 (1885)
v
TABLE OF AUTHORITIES—Continued
Page
State v. Farnam, 82 Or. 211, 161 P. 417 (1916) ..... 16, 24
State v. Gedicke, 43 N.J.L. 86 (1881) ....................... 16, 19
State v. Hoover, 252 N.C. 113, 113 S.E.2d 281
) 16, 22
State v. Howard, 32 Vt. 380 (1859) ........................ 16, 18
State v. Jordon, 227 N.C. 579, 42 S.E.2d 674
| 16
State v. Magnell, 19 Del. (3 Penne.) 307, 51 A. 606
OO —————————————————————————EEE ou 17
State v. Miller, 90 Kan. 230, 133 P. 878 (1913) . il 16
State v. Millette, 112 N.H. 458, 299 A.2d 150
0 rr 17
State v. Moore, 25 lowa 128 (1866) ......................... 17, 18
State v. Munson, 86 S.D. 663, 201 N.W.2d 123
(1972), vacated and remanded, 410 U.S. 950
22
State v. Murphy, 27 N.J.L. 112 (1858) -................ 15, 24
State v. Powell, 181 N.C. 515, 106 S.E. 133
, | SS 16
State v. Rudman, 126 Me. 177, 136 A. 817 (1927).. 17
State v. Siciliano, 21 NJ. 249, 121 A.2d 490
== 15, 16
State v. Steadman, 214 S.C. 1, 51 S.E.2d 91
CED checnctecngesncisemnieemnaeunaeaiitniemnantemnsvsmmnmaraninanens 16
State v. Reed, 45 Ark. 333 (1885) -........................... 10
State v. Slagle, 83 N.C. 630 (1880) -........................ 10
State v. Tippie, 89 Ohio St. 35, 105 N.E. 75
Se 16
State v. Watson, 30 Kan. 281, 1 P. 770 (1883) _..... 16
Sylvia v. Gobeille, 101 R.I. 76, 220 A.2d 222
GREED <ccococsiscncsessinnemntinatnctennectimmguniniammiseuimenteenteenes 17
Territory v. Young, 37 Haw. 150 (1945), appeal
dismissed, 160 F.2d 289 (9th Cir. 1947) —.......... 17
Thompson v. State, 493 S.W.2d 913 (Tex. Crim.
App. 1971), vacated and remanded, 410 U.S.
I GEEEED ‘ccccncnetsaniiithischsinalesipepntinneieninimebiinieaiiatenmeemns 22
Thornburgh v. American College of Obstetricians
and Gynecologists, 476 U.S. 747 (1986) _.... as 3
Trent v. State, 15 Ala. App. 485, 73 So. 834
(1916) ......... ~coceenecenguseusecnenssanesSsesSSRSSSNSISCSSCCSSSSGSCSEneeS 16, 20
vi
TABLE OF AUTHORITIES—Continued
Page
Urga v. State, 155 Fla. 86, 20 So.2d 685 (1944) ..... 17
Walsingham v. State, 250 So.2d 857 (Fla. 1971)... 17
Webster v. Reproductive Health Services, Inc., 492
eg FR ae 3
Weightnovel v. State, 46 Fla. 1, 35 So. 856
RR Aa ae SEN nr 17
Williams v. United States, 138 F.2d 81 (D.C. Cir.
Rome cce rere oe vee eae 18
Worthington v. State, 92 Md. 222, 48 A. 355
I likeli ceiateicieniati iba taniiaaens 17, 19
English Cases:
R. v. Bourne, 1 K.B. 687 (19389) .............................. 9
R. v. Wycherly, 8 Car. & P. 262, 173 Eng. Rep.
486 (N.P. 1838) esiiiiascadiiiieenintiintamatieaei 10
Statutes:
RS A FS ee 14
re: passim
Alabama: Ala. Pen. Code, ch, VI, §2, p. 238
AE 12
Ala. Code, § 3605, p. 690 (1866-67) 0. 12, 25
Arizona: Ariz. (Terr.) Code, ch. X, div. 5, § 45,
SE ee 14
Ariz. Pen. Code, § 455, p. 711 (1887), repealed and
re-enacted, Ariz. Pen. Code, § 244, p. 1228
ee 23
Arkansas: Ark. Rev. Stat., ch. 44, div. ITI, art. II,
ESSE ESP REEESS SALER ASC 12, 26
Act of Nov. 8, 1875, § 1, Ark. Acts., No. IV, p. 5
Aree ene 26
California: Cal. Sess. Laws, ch. 99, § 45, p. 233
LS CE SE A a 13
Act of May 20, 1861, Cal. Stat., ch. DXXI, p. 588
I aii nainatiaesnett tice ccatac renee 13, 25
Act of Feb. 14, 1872, codified at Cal. Pen. Code,
TTT MALT I 23
Colorado: Colo. (Terr.) Laws, div. 4, § 42, pp.
ETE Ae a 14
Colo. (Terr.) Rev. Stat., ch. XXII, § 42, p. 202
RE ILE ao 14, 25
vii
TABLE OF AUTHORITIES—Continued
Page
Connecticut: Conn. Pub. Stat., tit. 22, § 14, p. 152
(1821) ....... 12
Conn. Pub. Acts, ch. LXXI, §§1-4, pp. 65-66
(1860), codified at Conn. Gen, Stat., tit. XII, ch.
Il, §§ 22-25, pp. 248-49 (1866) ....12, 23, 25
Delaware: Act of Feb. 13, 1883, ch. 226, §$1, 2
Del. Laws, p. 522 (1883), codified at Del. Rev.
Stat., p. 930 (1893) 23, 25
Act of July 6, 1972, § 1, Del. Laws, ch. 497, pp.
1611, 1664 (1972), Del. Code Ann., tit. 11, § 652
(1974 Rev.) 23
Florida: Act of Aug. 6, 1868, Fla. Acts, 1st Sess.,
ch. 1637 [No. 13], sub. ch. III, § 11, and sub. ch.
VIII, § 9 (1868), pp. 64, 97 (1868) 14, 26
Georgia: Act of Feb. 25, 1876, ch. CXXX, §§ II,
Ill, Ga. Laws, p. 113 (1876), codified at Ga.
Code, § 4337 (a)-(c), p. 1143 (1882) 25
Idaho: Act of Feb. 4, 1864, ch. IV, § 42, Idaho
(Terr.) Laws, p. 443 (1863-64), repealed and
re-enacted by an Act of Dec, 21, 1864, ch. III,
pt. IV, § 42, Idaho (Terr.) Laws, p. 305 (1864).. 14
Idaho Rev. Stat., § 6795 (1887) ...-.....-----..c-----ecceeee 23
Illinois: Act of Jan. 30, 1827, § 46, Ill. Rev. Laws,
p. 131 (1827), repealed and replaced by an Act
of Feb. 26, 1833, § 46, Ill. Rev. Laws, p. 179
se 12
Act of Feb. 28, 1867, §§ 1-3, Ill. Pub. Laws, p. 89
_ ie a a 12, 25
Indiana: Act of Feb. 7, 1835, ch. XLVII, § 3, Ind.
Gen. Laws, p. 66 (1835), codified at Ind. Rev.
Stat., ch. XXVI, p. 224 (1838) ............................ 12
Ind. Gen. Laws, ch. LXXXI, pp. 130-31 (1859) ..... 12, 25
Ind. Laws, ch. XX XVII, § 23, p. 177 (1881), codi-
fied at Ind. Rev. Stat., § 1924, p. 358 (1881) -.... 23
Ind. Rev. Stat. § 1923, p. 358 (1881) ...................... 23, 26
lowa: Act of Jan. 25, 1839, § 18, Iowa (Terr.)
Stat., Ist Legis., Ist Sess., p. 145 (1838), super-
seded by an Act of Mar. 15, 1858, lowa Laws,
ch. 58, § 1, p. 93 (1858), codified at Iowa Rev.
Laws, pt. 4, tit. XXIII, ch. 165, art. 2, § 4221,
RG 12, 25
viii
TABLE OF AUTHORITIES—Continued
Act of Feb. 16, 1848, codified at Iowa (Terr.) Rev.
Stat., ch. 49, § 10, p. 167 (1848) ~.........................
Kansas: Kan. (Terr.) Stat., ch. 48, §§ 10, 39, pp.
238, 243 (1855)
Kan. (Terr.) Laws, ch. XXVIII, §§ 10, 37, pp. 232,
2387 (Acts of 1859), codified at Kan. Comp.
Laws, ch. XXXIII, §§10, 37, pp. 288, 293
eT
Louisiana: La. Acts, Act. 120, § 24, pp. 132-33
(1855), codified at La. Rev. Stat., Crimes &
Offenses, § 24, p. 138 (1856) —
Maine: Me. Rev. Stat., ch. 160, §§ 13-14, p. 686
EE
Me. Rev. Stat., tit. 11, ch. 124, § 8, p. 685 (1857)...
Maryland: Act of Mar. 20, 1867, Md. Laws, ch.
185, § 11, pp. 342-48 (1867) ...............00..
Act of Mar. 28, 1868, Md. Laws, ch. 179, § 2, p. 315
(1868), codified at Md. Code, art. XXX, §1,
pp. 105-06 (1868 Supp.) .................--..----cce-eecceeeeees
Massachusetts: Mass. Acts & Resolves, ch. 27, p.
GAL A A re
Mass, Gen. Stat., ch. 165, § 9, p. 818 (1860)
Michigan: Mich. Rev. Stat., eh. 153, §§ 33-34, p.
I eee
Minnesota: Minn. (Terr.) Rev. Stat. ch. 100, $11,
UR ERAS a a a
Act of Mar. 10, 1873, Minn. Laws, ch. IX, §§ 1-3,
pp. 117-18 (1873), codified at Minn. Gen. Stat.,
ch. 94, §§ 16-18, pp. 884-85 (1878), recodified at
Minn. Gen. Stat., § 6546, p. 1751 (1894) ........-
Mississippi: Act of Feb. 15, 1839, tit. III, art. 1,
§ 9, Miss. Laws, p. 113 (1839), codified at Miss.
Code, ch. LXIV, tit. III, §9, p. 958 (1848),
recodified at Miss. Rev. Code, ch. LXIV, art. 173,
9 RS Sa
Missouri: Mo. Rev. Stat., art. II, §§ 10, 36, pp.
CE RTS a a
Mo. Gen. Stat., pt. IV, tit. XLV, ch, 200, §§ 10, 24,
yk ss EE
Page
12
13
13
13, 25
12
12, 25
14
14, 25
12
12, 25
12, 26
13
23, 25
ix
TABLE OF AUTHORITIES—Continued
Montana: Mont. (Terr.) Laws, Criminal Prac-
tice Acts, ch. IV, § 41, p. 184 (1864) ..................
Mont. Pen. Code, § 481 (1895), re-enacted and
recodified at Mont. Rev. Code, § 94-402 (1947)..
Nebraska: Act of Feb. 12, 1866, Neb. (Terr.)
Stat., pt. III, ch. IV, § 42, pp. 598-99 (1866-67) ..
Neb. Gen. Stat., ch. 58, §§ 6, 39, pp. 720, 727-28
(1878) ... a ae ee ne ee Ee ee
Nevada: Nev. (Terr.) Laws, ch. XXVIII, div. IV,
Gs Oe Oe Se cccentrtniteciniacientnemteneenenens
Act of Feb. 16, 1869, ch. XXII, § 1, Nev. Laws,
pp. 64-65 (1869), superseded by an Act of Mar.
17, 1911, ch. 18, § 140 (Senate Pill 124, p. 43),
codified at Nev. R.L. 6405, p. 1836 (1912), re-
codified at Nev. Rev. Stat., § 200.220 (1963) .....
New Hampshire: Act of Jan. 4, 1849, N.H. Laws,
ch. 743, §§ 1-4, pp. 708-09 (1848), codified at
N.H. Comp. Stat., tit. XXVI, ch. 227, §§ 11-14,
ON
New Jersey: Act of Mar. 1, 1849, N.J. Laws, pp.
EE ee eae nee
Act of Mar. 25, 1881, N.J. Laws, ch. CXCI, p. 240
ESE ee
New Mexico: N.M. (Terr.) Laws, No. 28, ch. 3,
§ 11, p. 88 (1854), codified at N.M. Rev. Stat.,
art. XXIII, ch. LI, § 11, p. 820 (1865) 0000000000.
New York: Act of Dec. 10, 1828, ch. 20, § 4, N.Y.
Laws, 51st Legis., 2nd Sess., p. 19 (1828), codi-
fied at N.Y. Rev. Stat., pt. IV, ch. I, tit. II, art. I,
§ 9, p. 661, and tit. VI, § 21, p. 694 (1828-29),
as amended by an Act of Apr. 30, 1830, ch. 320,
§ 58, N.Y. Laws, p. 401 (1830), codified at N.Y.
Rev. Stat., pt. IV, ch. I, tit. Il, art. I, § 9, pp.
550-51, and pt. IV, ch. I, tit. VI, § 21, pp. 578-79
(1828-35), repealed and replaced by N.Y. Laws,
ch. 260, §§ 1-3, 6, pp. 285-86 (1845), codified at
N.Y. Rev. Stat., pt. IV, ch. I, tit. VI, §§ 20-21,
p. 779 (1846), and N.Y. Laws, ch. 22, § 1, p. 19
(1846), codified at N.Y. Rev. Stat., pt. IV, ch. I,
tit. II, art. I, § 9, p. 750 (1846) ............0.0000000..
Page
14
23
14, 25
26
13, 25
23
12, 23
12, 25
26
14
TABLE OF AUTHORITIES—Continued
N.Y. Laws, ch. 260, § 3, p. 286 (1845), codified at
N.Y. Rev. Stat., pt. IV, ch. I, tit. VI, § 21, p. 779
(1846), superseded by N.Y. Laws, ch. 181, § 2,
p. 509 (1872), codified at N.Y. Rev. Stat. pt. IV,
ch, I, tit. Il, art. I, sec. 10, p. 983 (1875) —..........
Act of July 26, 1881, N.Y. Laws, ch. 676 (N.Y.
Pen. Code), §§ 191, 194, 294, 295, pp. 45-46, 72-
73 (1881), 3 N.Y. Rev. Stat. at 2478-80 (1881)..
North Carolina: Act of Mar. 12, 1881, ch. 351,
N.C. Laws, pp. 584-85 (1881), codified at N.C.
Code, §§ 975, 97%. p. 899 (1883) 0.
North Dakota: Dak. Pen. Code, § 338, p. 459
(1877), recodified at N.D. Rev. Codes, § 7178,
p. 1272 (1895)
Ohio: Act of Feb. 27, 1834, §§ 1, 2, Ohio Laws,
pp. 20-21 (1834), codified at Ohio Gen. Stat.,
ch. 35, §§ 111, 112, p. 252 (1841) 00
Act of Apr. 13, 1867, Ohio Laws, pp. 135-36
RI Wel ecuoneeven = *e - ONk Pepr aor
Oklahoma: Okla. Stat., § 2188 (1890), codified at
Okla. Rev. Laws, § 2437, p. 604 (1910) .............
Oregon: Act of Dec. 22, 1853, ch. III, § 13, Or.
(Terr.) Stat., p. 187 (1853-54)
Act of Oct. 19, 1864, Or. Gen. Laws, Crim. Code,
ch. 43, § 509, p. 528 (1845-1864)
Pennsylvania: Pa. Laws, No. 374, tit. VI, §§ 87,
ON ree
South Carolina: Act of Dec. 24, 1883, No. 354,
§§ 1-3, S.C. Acts, pp. 547-48 (1883), codified at
S.C. Rev. Stat., Crim. Stat., §§ 122, 137, 138,
pp. 306, 309-10 (1898) ..............................-oe. es
South Dakota: Dak. Pen. Code., § 338, p. 459
(1877), recodified at S.D. Ann. Stat., § 7798,
eC ati
Tennessee: Act of Mar. 26, 1883, ch. CXL, Tenn.
Acts, pp. 188-89 (1883), codified at Tenn. Code,
§§ 5371, 5372, p. 1031 (Milliken & Vertree’s
Ca Se ee eee
Texas: Act of Feb. 9, 1854, § 1, Tex. Gen. Laws,
ch. XLIX, § 1, p. 68 (1854) 0.
Page
23
26
13
13, 25
23
13
13, 25
13, 26
23, 25
23
25
xi
TABLE OF AUTHORITIES—Continued
Act of Aug. 28, 1856, codified at Tex. Pen. Code of
1857, arts. 531-36, pp. 103-04, as amended by an
Act of Feb. 12, 1858, ch. 121, pt. I, tit. 17, ch. 7,
Tex. Laws, p. 172 (1858), codified at Tex. Gen.
Stat. Dig., ch. VII, articles 531-536, p. 524
Co UE Se
Utah: Utah Rev. Stat., § 4227, p. 903 (1898),
recodified at Utah Code Ann., § 76-2-2 (1953)....
Vermont: Vt. Acts, No. 33, § 1, pp. 34-35 (1846),
codified at Vt. Comp. Stat., tit. XXVIII, ch. 108,
§ 8, pp. 560-61 (1839-1850) ..................................
Act of Nov. 21, 1867, Vt. Acts, No. 57, §§ 1, 3, pp.
I a
Virginia: Act of Mar. 14, 1848, ch. 120, tit. II,
ch. III, § 9, Va. Acts, p. 96 (1847-48), codified,
as modified, at Va. Code, tit. 54, ch. CXCI, § 8,
p. 724 (1849), recodified, Va. Code, tit. 54, ch.
CXCI, § 8, p. 784 (1860) .......... ES nee ee ae
Act of Mar. 14, 1878, Va. Acts, ch. 311, (sub.) ch.
II, § 8, pp. 281-82 (1878), codified at Va. Code,
I a
Washington: Wash. (Terr.) Stat., ch. II, §§ 37,
Sn
Wash. Laws, ch. 249, § 197, p. 948 (1909), codified
at Rev. Code Wash., § 9.02.020 (1961) ................
West Virginia: Act of Mar. 14, 1848, ch. 120, tit.
II, ch. IIT, § 9, Va. Acts, p. 96 (1847-48), codified,
as modified, at Va. Code, tit. 54, ch. CXCI, § 8,
p. 724 (1849), recodified, Va. Code, tit. 54, ch.
CXCI, §8, p. 784 (1860), and W. Va. Const.,
oe SS. 2 Fee ae eee as
W. Va. Acts, ch. CXVIII, § 8, p. 335 (1882), codi-
fied at W. Va. Code, ch. CXLIV, §8, p. 677
RAEI Ee I sR Nas Crease ee REN Ae
Wisconsin: Wis. Rev. Stat., pt. IV, tit. XXX, ch.
133, § 11, pp. 683-84 (1849) 00
Wis. Rev. Stat., pt. IV, tit. XXVII, ch. CLXIV,
$11, p. 930, and ch. CLXIX, §§ 58, 59, p. 969
Page
14, 26
23
13
13, 26
13, 26
26
14
23
14, 26
26
18
ne eR Ne nC DO Ra 13, 23, 26
Wyoming: Wyo. Laws, ch. 73, § 32, p. 131 (1890),
codified as Wyo. Stat., § 6-78 (1957) .....................
23
xii
TABLE OF AUTHORITIES—Continued
Other Authorities:
Annot., Woman Upon Whom Abortion Is Com-
mitted As Accomplice For Purposes Of Rule
Requiring Corroboration Of Accomplice Testi-
mony, 34 A.L.R.3d 858 (1970) -..........22...-00......
Bishop on Statutory Crimes (2d ed.) (1883) .........
W. Blackstone, Commentaries On The Laws Of
EE
2 H. de Bracton (c. 1250), On the Laws and Cus-
toms of England (S. Thorne ed. 1968) —............
Wm. Burdick, Law of Crime (1946) —.....0000000000.....
Byrn, An American Tragedy: The Supreme Court
On Abortion, 44 Fordham L. Rev. 807 (1978)...
E. Coke, Third Institute of the Laws of England
(1644) .. iecesitestinaaninibeetenaenanninintastesieataiiaieiiciseasiaintimnets
Dellapenna, The History of Abortion: Technol-
ogy, Morality, and Law, 40 U. Pitt. L. Rev. 359
ae oe a ere ae ee
renee oer ee
Fleta (c. 1290), Bk. I, ch. XXIII, “Of Homicide,”
which appears in Vol. II of the translated works
of Fleta, Publications of the Selden Society, Vol.
Oe cicesniiesidhantinittiiinibaatnciieeneatrinatatitiieatees
M. Hale, Summary of the Pleas of the Crown
ET ve ee ee ee eee TE
1 W. Hawkins, A Treatise of the Pleas of the
I ID centtiitiitcsimnttianin
Hearings on S. 158 Before the Subcommittee on
Separation of Powers of the Senate Committee
on the Judiciary, 97th Cong., 1st Sess. ................
J. Keown, Abortion, doctors and the law (Cam-
bridge University Press 1988) ..............0000000......
L. Koehler, A Search For Power: The “Weaker
Sex” in Seventeenth-Century New England
Se ee ee ee
Linton, Enforcement of State Abortion Statutes
After Roe: A State-by-State Analysis, 67 U.
Det. L. Rev. 157 (Winter 1990) ............00000..
J. Mohr, Abortion in America (1978) ....................
Page
28
xiii
TABLE OF AUTHORITIES—Continued
1 Wm. Russell, A Treatise on Crimes and Misde-
meanors (1819) ...........
©. Scholten, Childbearing In American Society
1650-1850 (1985) ................
J. Spruill, Women’s Life and Work in the Southern
FTE
F. Wharton, American Criminal Law (6th rev. ed. )
STITT eicissticihsesnctlenasihitinsiinpeaitiniitieepeanaindatitinlatsiadtetaatetmccen
Witherspoon, Reexamining Roe: Nineteenth-Cen-
tury Abortion Statutes And The Fourteenth
Amendment, 17 St. Mary’s L.J. 29 (1985) ...........
Page
8
11
11
10
INTEREST OF THE AMICI*
Amici Curiae are a bipartisan group of more than 600
senators and representatives—men and women—from all
fifty States. Amici also include the Governor of the
Territory of Guam, the Honorable Joseph F. Ada, who is
a defendant in the challenge to the Guam abortion law
now pending in the United States Court of Appeals for
the Ninth Circuit, Lt. Gov. Frank F. Blas, and legislators
from Guam and Puerto Rico. Amici do not all share
the same convictions regarding the manner and ex-
tent to which abortion should be regulated or pro-
hibited. But all are in agreement that abortion is
properly a matter for the legislative, not the judicial,
branch of government, and that States have the consti-
tutional authority to protect unborn human life through-
out pregnancy. Because of this Court’s decision in Roe v.
Wade, 410 U.S. 113 (1973), that authority can no longer
be exercised.
The issue of abortion poses difficult and complex legal,
moral, social, medical and political problems which the
judiciary is uniquely ill-suited to resolve. From 1787 until
1973, these questions were raised, freely debated and an-
swered in the public forums of the state legislatures,
where the will of the people could be expressed through
their popularly elected representatives. That debate has
been silenced and those forums have been closed for al-
most twenty years. The voice of the people will not be
heard again until Roe is overruled and legislative au-
thority over abortion is restored to the States.
SUMMARY OF ARGUMENT
In Roe v. Wade, 410 U.S. 113 (1973), this Court held
that “[the] right of privacy . . . founded in the Four-
teenth Amendment’s concept of personal liberty .. . is
broad enough to encompass a woman’s decision whether
or not to terminate her pregnancy.” Jd. at 153. The
* The names of the amici appear in the appendix to this brief,
which is filed with the consent of the parties.
2
Court acknowledged that “[t]he Constitution does not
explicitly mention any right of privacy.” Jd. at 152.
Nevertheless, “a right of personal privacy, or a guarantee
of certain areas or zones of privacy, does exist under the
Constitution.” Jd. However, “only personal rights that
can be deemed ‘fundamental’ or ‘implicit in the concept
of ordered liberty,’ . . . are included in this guarantee
of personal privacy.” Id.
In finding that there is a “fundamental right” to choose
abortion, the Court in Roe reviewed the treatment of
abortion in English and American law (410 U.S. at 129,
132-41, 147-52), and came to the following conclusions:
[A]t common law, at the time of the adoption of our
Constitution, and throughout the major portion of
the 19th century, abortion was viewed with less dis-
favor than under most American statutes currently
in effect. Phrasing it another way, a woman enjoyed
a substantially broader right to terminate a preg-
nancy than she does in most States today. At least
with respect to the early stage of pregnancy, and
very possibly without such a limitation, the opportu-
nity to make this choice was present in this country
well into the 19th century. Even later, the law con-
tinued for some time to treat less punitively an abor-
tion procured in early pregnancy.
Id. at 140-41.
Amici curiae respectfully submit that these conclusions,
central to the Court’s decision in Roe, are erroneous. The
Court’s examination of the history of abortion regulation
was seriously flawed and failed to take into account the
state of medical technology in which the law of abortion
evolved. As this brief attempts to demonstrate, both the
English common law, as received by the American colo-
nies, and the abortion statutes enacted by state legisla-
tures in the nineteenth century, sought to protect unborn
human life to the extent that contemporary medical sci-
ence could establish the existence of that life. This evi-
dence undermines the critical factual assumptions on
which Roe was erected and suggests that English and
3
American law never recognized a right to choose abor-
tion. Accordingly, Roe v. Wade should be overruled.'
ARGUMENT
Abortion is a hotly contested moral and political
issue. Such issues, in our society, are to be resolved
by the will of the people, either as expressed through
legislation or through the general principles they have
already incorporated into the Constitution they have
adopted. Roe v. Wade implies that the people have
already resolved the debate by weaving into the Con-
stitution the values and principles that answer the
issue. As I have argued, I believe it is clear that the
people have never—not in 1787, 1791, 1868, or at
any time since—done any such thing. I would return
the issue to the people by overruling Roe v. Wade.
Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S. 747, 796-97 (1986) (White, J.,
dissenting).
In Roe v. Wade, 410 U.S. 113 (1973), the Supreme
Court, without support in the text, structure or history
of the Constitution, reached out and struck down the
abortion laws of all fifty States. The Court thereby estab-
lished as a constitutional right what had long been viewed
in English and American law as a serious crime—the
intentional destruction of unborn human life. Contrary
to the Court’s reading of English and American legal
traditions in Roe, there is no historical basis for conclud-
ing that the Due Process Clause of the Fourteenth Amend-
ment, or the right of privacy that has been derived there-
from, embraces a right to choose abortion. Since nothing
1 The issue of whether Roe should be overruled is properly before
this Court. The questions certified for review—whether the chal-
lenged provisions of the Pennsylvania Abortion Control Act of
1982, as amended, are constitutional—cannot be answered without
first determining the appropriate standard of review applicable to
the regulation of abortion. The selection of that standard directly
implicates Roe. See Webster v. Reproductive Health Services, Inc.,
492 U.S. 490, 532-33 (1989) (Scalia, J., concurring in part and con-
curring in the judgment).
4
in the Constitution was intended to deprive the people
of their rightful authority, acting through their state
legislatures, to protect human life by restricting abortion,
that authority should be restored to its legitimate source—
the American people. Roe v. Wade should be overruled.
I. ONLY FUNDAMENTAL RIGHTS, IMPLICIT IN
THE CONCEPT OF ORDERED LIBERTY AND HIS-
TORICALLY AND TRADITIONALLY CONSIDERED
BEYOND THE PROPER SCOPE OF GOVERNMENT
REGULATION, ARE PROTECTED BY THE RIGHT
OF PRIVACY.
This Court has recognized that certain fundamental
rights are protected by the Due Process Clause of the
Fourteenth Amendment. Due process of law protects
those rights which are “so rooted in the traditions and
conscience of our people as to be ranked as fundamental,”
Snyder v. Massachusetts, 291 U.S. 97, 105 (1934), or
which are “implicit in the concept of ordered liberty.”
Palko v. Connecticut, 302 U.S. 319, 325 (1937). For any
right to be considered fundamental, it must be grounded
in the history and traditions of our society and be basic
to our civil and political institutions. See Palko v. Con-
necticut, 302 U.S. 319, 328 (1937), and Meyer v. Ne-
braska, 262 U.S. 390, 400-02 (1923).
In Bowers v. Hardwick, 478 U.S. 186 (1986), the
Court forcefully reiterated these principles of constitu-
tional analysis in rejecting the claim that the Constitu-
tion confers a fundamental right upon homosexuals to
engage in sodomy. The Court noted that “the Due Process
Clauses of the Fifth and Fourteenth Amendments .. .
have been interpreted to have substantive content, sub-
suming rights that to a great extent are immune from
federal or state regulation or proscription.” Jd. at 191.
Some of these cases recognized “rights that have little or
no textual support in the constitutional language.” /d.
To guard against the danger of “the imposition of the
Justices’ own choice of values on the States and the Fed-
eral Government, the Court has sought to identify the
nature of the rights qualifying for heightened judicial
protection.” Id.
Thus, in Palko v. Connecticut, 302 U.S. 319, 325, 326
(1937), the Court stated that this category of rights in-
cludes those fundamental liberties that are “implicit in
the concept of ordered liberty,” such that “neither liberty
nor justice would exist if [they] were sacrificed.” A
broader formulation of fundamental liberties was set
forth in Justice Powell’s opinion in Moore v. City of East
Cleveland, 431 U.S. 494 (1977), where they are char-
acterized as those liberties that are “deeply rooted in this
Nation’s history and tradition.” Jd. at 503 (opinion of
Powell, J.). In Roe, this Court acknowledged that “only
personal rights that can be deemed ‘fundamental’ or
‘implicit in the concept of ordered liberty,’ . . . are in-
cluded in this guarantee of personal privacy.” 410 U.S.
at 152.
In rejecting the argument that homosexuals have a
fundamental right to engage in acts of consensual sodomy,
the Court in Bowers noted that “[s]odomy was a criminal
offense at common law and was forbidden by the laws of
the original 13 States when they ratified the Bill of
Rights.” 478 U.S. at 192. The Court noted further that
in 1868, when the Fourteenth Amendment was ratified,
“all but 5 of the 37 States in the Union had criminal
sodomy laws.” Jd. at 192-93. Finally, the Court pointed
out that until] 1961, “all 50 States outlawed sodomy, and
today, 25 States and the District of Columbia continue to
provide criminal penalties for sodomy performed in pri-
vate and between consenting adults.” Jd. at 193-94. In
light of the law’s longstanding prohibition of sodomy, “to
claim that a right to engage in such conduct is ‘deeply
rooted in this Nation’s history and tradition’ or ‘implicit
in the concept of ordered liberty’ is, at best, facetious.”
478 U.S. at 194°
2 The Court has continued to rely upon historical traditions in
evaluating asserted claims of constitutional right not based upon an
explicit constitutional text. See, e.g., Michael H. v. Gerald D., 491
In Bowers, the Court declined to take a more expansive
view of its authority “to discover new fundamental rights
imbedded in the Due Process Clause.” 478 U.S. at 194.
The Court is most vulnerable and comes nearest to
illegitimacy when it deals with judge made consti-
tutional law having little or no cognizable roots in
the language or design of the Constitution. ... There
should be . . . great resistance to expand the sub-
stantive reach of those Clauses, particularly if it
requires the category of rights deemed to be funda-
mental. Otherwise, the Judiciary takes to itself
further authority to govern the country without ex-
press constitutional authority. The claimed right
pressed on us today falls far short of overcoming
this resistance.
Id. at 194-95.
When these principles are applied to the issue of abor-
tion, it becomes clear that Roe was wrongly decided.
Contrary to the Court’s conclusions, there was no right
to choose abortion at common law or under the statutes
enacted by state legislatures in the nineteenth century.
The uniform and consistent condemnation of abortion as
a crime in English and American law contradicts the
critical historical findings on which Roe was based.
Although petitioners attempt to defend the legitimacy
of Roe on general privacy grounds (Br. at 22-27),* their
brief is curiously silent regarding the history of abortion
U.S. 110, 122 n.2, 120-29 (1989) (natural father of child conceived
in adulterous relationship lacked protected liberty interest in assert-
ing parental rights over the child).
® This effort ultimately fails because, as this Court noted in Roe,
abortion is “inherently different” from marital! intimacy, or bedroom
possession of obscene material, or marriage, or procreation, or edu-
cation, with which Eisenstadt v. Baird, 405 U.S. 438 (1972) and
Griswold v. Connecticut, 381 U.S. 479 (1965), Stanley v. Georgia,
894 U.S. 557 (1969), Loving v. Virginia, 388 U.S. 1 (1967), Skinner
v. Oklahoma, 316 U.S. 535 (1942), and Pierce v. Society of Sisters,
268 U.S. 510 (1925) and Meyer v. Nebraska, 262 U.S. 390 (1923),
were respectively concerned. 410 U.S. at 159. Abortion is differ-
ent because it involves the intentional destruction of unborn human
life.
7
regulation. Petitioners do not discuss whether abortion
was a crime at common law, or when American legis-
latures enacted statutes prohibiting abortion or how those
statutes were interpreted by state reviewing courts. This
silence is all the more remarkable given the need to
ground an asserted privacy right (in this case, the right
to choose abortion) “in this Nation’s history and tradi-
tion.” Moore v. City of East Cleveland, 431 U.S. at 503
(opinion of Powell, J.). Only the “Historians’ Brief” in
support of petitioners even attempts to remedy these de-
ficiencies. It fails to do so, however, because as both this
brief and the brief amicus curiae of the American Acad-
emy of Medical Ethics demonstrate, it seriously distorts
both the common law record and the pattern of nineteenth
century legislative activity restricting abortion. More-
over, the “Historians’ Brief,” in asserting that “emphasis
on the fetus became central to cultural and legal debate
over abortion only in the late twentieth century,” Br. at
°6, simply ignores scores of judicial opinions from state
courts which recognized that their nineteenth century
abortion laws were enacted with the intention of protect-
ing unborn human life.
Il. THE COMMON LAW OF ENGLAND, AS RECEIVED
BY THE AMERICAN COLONIES AND STATES,
PROHIBITED AND PUNISHED ABORTION AFTER
QUICKENING AS A CRIMINAL OFFENSE.
An understanding of the development of the common
law crime of abortion in England is essential to any
analysis of the status of abortion in American law prior
to the gradual replacement of common law crimes by
statutory crimes in the nineteenth century. Although a
comprehensive review of this history is beyond the scope
of this brief,‘ the following is offered as a summary.
The thirteenth century commentators Bracton and
Fleta classified abortion of a “formed and animated”
4 The court is referred to the brief amicus curiae of the Ameri-
can Academy of Medical Ethics in support of Respondents in No.
91-744, and Petitioners in 91-902, and J. Keown, Abortion, doctors
fetus as homicide.’ The sixteenth and seventeenth century
jurist, Sir Edward Coke, declared that, while not “mur-
der”, abortion of a woman “quick with childe” was a
“great misprision.” E. Coke, Third Institute of the Laws
of England at 50 (1644). If, however, “the childe be
born alive, and dieth of the Potion, battery, or other
cause, this is murder: for in law it is accounted a reason-
able creature, in rerum natura, when it is born alive.”
Id." In his classic Commentaries On The Laws Of Eng-
land, William Blackstone closely followed Coke:
[T]he person killed must be “a reasonable creature
in being, and under the king’s peace,” at the time
of the killing . . . To kill a child in its mother’s
womb, is now no murder, but a great misprision:
but if the child be born alive, and dieth by reason
of the potion or bruises it received in the womb, it
is murder in such as administered or gave them.
4 W. Blackstone, Commentaries On The Laws Of Eng-
land 198 (1769) (emphasis in original). Blackstone held
that the killing of a child in the womb was “a very
heinous misdemeanor.” 1 W. Blackstone, Commentaries,
at 126 (1765).
“Quickening” (the point in a pregnancy at which the
mother begins to detect fetal movement) was used in the
common law as a practical evidentiary test to determine
whether the abortion had been performed upon a live
and the law at 3-12 (Cambridge University Press 1988), for a fuller
presentation of this history.
52H. de Bracton (c. 1250), On the Laws and Customs of England
341 (S. Thorne ed. 1968); Fleta (c. 1290), Bk. I, ch. XXIII, “Of
Homicide,” which appears in Vol. Il of the translated works of
Fleta, Publications of the Selden Society, Vol. 72, pp. 60-61 (1955).
* A “misprision,” according to Coke, was “a heinous offense under
the degree of felony.” /d. at 139.
7 Other leading authorities accepted Coke’s declaration regarding
the criminality of abortion at common law. See M. Hale, Summary
of the Pleas of the Crown 583 (1678); 1 W. Hawkins, A Treatise of
the Pleas of the Crown 80 (1716); 1 E. East, A Treatise on the
Pleas of the Crown 227-30 (1803); 1 Wm. Russell, A Treatise on
Crimes and Misdemeanors 617-18, 796 (1819).
9
human being in the womb, and whether the abortion had
caused the child’s death. Byrn, An American Tragedy:
The Supreme Court On Abortion, 44 Fordham L.Rev.
807, 815-16 (1973). This test “was never intended as a
judgment that before quickening the child was not a live
human being.” Jd. at 816.*
The views of Coke and Blackstone were accepted by
American courts in the nineteenth century as accurate
statements of the criminality of abortion at common
law. See, e.g., Abrams v. Foshee, 3 lowa 273, 278-80
(1856); Smith v. State, 33 Me. 48, 55 (1851); Com-
monwealth v. Parker, 50 Mass. (9 Met.) 263, 264-68
(1845); People v. Sessions, 58 Mich. 594, 596, 26 N.W.
291, 293 (1886); State v. Cooper, 22 N.J.L. 52, 53-58
(1849). In conformity with those views, state courts
uniformly recognized abortion after quickening as a com-
mon law crime.’ The courts of at least three States went
In R. v. Bourne, 1 K.B. 687 (1989), Judge Macnaghten observed
that “long before then [the enactment of the first English abortion
statute in 1803], before even Parliament came into existence, the
killing of an unborn child was by the common law of England a
grave crime.... The protection which the common law afforded to
human life extended to the unborn child in the womb of its mother.”
Id. at 690. English cases recognizing the criminality of abortion
at common law are collected in the Brief Amicus Curiae of the
American Academy of Medica! Ethics.
* Smith v. Gaffard, 31 Ala. 45, 51 (1857) (dictum in slander
case); Eggart v. State, 40 Fla. 527, 532, 25 So. 144, 145 (1898)
(dictum in case decided under statute abolishing quickening dis-
tinction) ; Abrams v. Foshee, 3 lowa 273, 278-80 (1856) (dictum in
slander case) ; Mitchell v. Commonwealth, 78 Ky. 204, 205-10 (1879)
(reversing conviction where indictment failed to allege that “the
woman was quick with child”) ; Smith v. State, 33 Me. 48, 55 (1851)
(dictum in case decided under statute abolishing quickening dis-
tinction) ; Commonwealth v. Parker, 50 Mass. (9 Met.) 263, 264-68
(1845) (reversing conviction where indictment failed to allege that
“the woman was quick with child”); Commonwealth v. Bangs, 9
Mass. 387, 387-88 (1812) (arresting judgment where indictment
failed to allege that “the woman was quick with child”); State v.
Emerich, 13 Mo. App. 492, 495-98 (1883) (dictum in case decided
under statute), aff'd, 87 Mo. 110 (1885) ; State v. Cooper, 22 N.J.L.
52, 54-58 (1849) (dictum in case upholding indictment charging
10
further, holding that abortion at any stage of pregnancy
was a common law crime. State v. Reed, 45 Ark. 333,
334 (1885); State v. Slagle, 82 N.C. 630, 632 ( (1880) ;
Mills v. Commonwealth, 13 Pa. 630, 632-33 (1850). The
Maryland Court of Appeals may have had these cases in
mind when it reported widespread judicial abandonment
of the medically obsolete quickening distinction:
[A]s the life of an infant was not supposed to
begin until it stirred in the mother’s womb, it was
not regarded as a criminal offence to commit an
abortion in the early stages of pregnancy. A con-
siderable change in the law has taken piace in many
jurisdictions by the silent and steady progress of
judicial opinion; and it has been frequently held by
Courts of high character that abortion is a crime at
common law without regard to the stage of preg-
nancy.
Lamb v. State, 67 Md. 524, 533, 10 A. 208 (1887) (em-
phasis supplied). See also Marmaduke v. People, 45
Colo. 357, 361-62, 101 P. 337, 338 (1909).'°
These decisions, together with the dozens of abortion
prosecutions reported in the digests, lay to rest the doubt
expressed in Roe that “abortion was ever firmly estab-
lished as a common-law crime even with respect to the
destruction of a quick fetus.” 410 U.S. 113, 186 (1973).
No American court ever held that abortion after quicken-
ing was not a criminal offense.
defendant with assault); Evans v. People, 49 N.Y. 86, 88 (1872)
(dictum in case reversing conviction under manslaughter statute) ;
Arnold v. Gaylord, 16 R.I. 573, 576, 18 A. 177, 178-79 (1889) (dic-
tum in loss of services case).
10 Leading nineteenth-century commentators were in accord. See
Bishop on Statutory Crimes (2d ed.), § 744, p. 447 (1883); F.
Wharton, American Criminal Law (6th rev. ed.), §§ 1220-30, pp.
210-18 (1868) (criticizing quickening distinction and concluding
that abortion was a crime at common law, regardless of the stage
of pregnancy). See R. v. Wycherly, 8 Car. & P. 262, 173 Eng. Rep.
486 (N.P. 1838). Bishop and Wharton were “the two most fre-
quently cited American writers” on substantive criminal law. Wm.
Burdick, Law of Crime, Foreword at v (1946).
11
Moreover, there is evidence that abortion was prose-
cuted as a common law crime in the colonial period.
Julia Cherry Spruill, in her study of women in the South,
cites the 1652 case of Captain Mitchell, who “was accused
of a number of crimes, among which was attempted abor-
tion,” and of Elizabeth Robins, who was accused of “tak-
ing medicine to destroy her child.” J. Spruill, Women’s
Life and Work in the Southern Colonies at 325-26
(1938). Another historian, Lyle Koehler, records the
Rhode Island case of Deborah Allen, who was convicted
and punished in 1683 for fornication and “Indeavoringe
the dithuchion [destruction] of the Child in her womb.”
L. Koehler, A Search For Power: The “Weaker Sex” in
SeventeenthCentury New England at 329 & n. 182
(1980).
Admittedly, there are few reported abortion prosecu-
tions in America prior to the mid-nineteenth century.
This was not because abortion was not regarded as a
crime at common law, however, but because “[flew
[women] tried to limit their pregnancies by birth con-
trol or abortion,” (C. Scholten, Childbearing In American
Society 1650-1850 at 9 (1985)), and because primitive
medical understanding prevented proof of abortion until
after quickening and unless there were direct witnesses
who would testify. J. Mohr, Abortion in America at 72
(1978). Mohr notes that abortion after quickening, “late
in the fourth or early in the fifth month,” was a common
law crime in the United States. Jd. at 3. The decision
to choose abortion was not a right at common law, in
England or America. Abortion was a crime and was
punished accordingly.
Ill. THE NINETEENTH CENTURY ABORTION STAT-
UTES, WHICH ABOLISHED THE COMMON LAW
QUICKENING DISTINCTION AND PROHIBITED
ABORTION THROUGHOUT PREGNANCY EXCEPT
TO SAVE THE LIFE OF THE MOTHER, WERE
ENACTED WITH AN INTENT TO PROTECT UN-
BORN HUMAN LIFE.
The Court’s assertions in Roe that “the pre-existing
English common law” of abortion remained in effect in
12
this country “in all but a few States until [the] mid-19th
century” and that “[i]t was not until after the War
Between the States that legislation began generally to
replace the common law” are simply wrong. 410 U.S. at
138-139. By the end of 1849, eighteen of the thirty States
had enacted statutes prohibiting abortion,’ and by the
11 See, generally, Witherspoon, Reexamining Roe: Nineteenth-
Century Abortion Statutes And The Fourteenth Amendment, 17 St.
Mary’s L.J. 29, 32 et seq. (1985) (hereinafter Witherspoon). The
following eighteen States adopted abortion statutes before 1850:
Alabama, Ala. Pen. Code, ch. VI, § 2, p. 238 (Meek Supp. 1841), as
amended, Ala. Code, § 3605, p. 690 (1866-67) ; Arkansas, Ark. Rev.
Stat., ch. 44, div. III, art. II], §6 (1838); Connecticut, Conn. Pub.
Stat., tit. 22, § 14, p. 152 (1821), replaced by Conn. Pub. Acts, ch.
LXXI, §§ 1-4, pp. 65-66 (1860), codified at Conn. Gen. Stat., tit. XII,
ch. II, §§ 22-25, pp. 248-49 (1866), which made abortion at any stage
of pregnancy a crime; Illinois, Act of Jan. 30, 1827, § 46, Ill. Rev.
Laws, p. 131 (1827), repealed and replaced by an Act of Feb. 26,
1833, § 46, Ill. Rev. Laws, p. 179 (1833), which was replaced by an
Act of Feb. 28, 1867, §§ 1-3, Ill. Pub. Laws, p. 89 (1867) ; Indiana,
Act of Feb. 7, 1835, ch. XLVII, §3, Ind. Gen. Laws, p. 66 (1835),
codified at Ind. Rev. Stat. ch. XXVI, p. 224 (1838), superseded by
Ind. Gen. Laws, ch. LXXXI, § 2, pp. 130-31 (1859) ; Jowa (admitted
to statehood Dec. 28, 1846), Act of Jan. 25, 1839, § 18, lowa (Terr.)
Stat., Ist Legis., Ist Sess., p. 145 (1838), superseded by an Act of
Mar. 15, 1858, Iowa Laws, ch. 58, $1, p. 93 (1858), codified at Iowa
Rev. Laws, pt. 4, tit. XXIII, ch. 165, art. 2, § 4221, pp. 723-24 (1860),
which made abortion at any stage of pregnancy a crime (an Act of
Feb. 16, 1843, penalized the intentional destruction of an unborn
quick child as manslaughter, lowa (Terr.) Rev. Stat., ch. 49, § 10,
p. 167 (1843)); Maine, Me. Rev. Stat., ch. 160, §§ 13-14, p. 686
(1840), recodified, as amended, at Me. Rev. Stat., tit. 11, ch. 124,
§ 8, p. 685 (1857); Massachusetts, Mass. Acts & Resolves, ch. 27,
p. 406 (1845), subsequently codified, as amended, at Mass. Gen.
Stat., ch. 165, §9, p. 818 (1860); Michigan, Mich. Rev. Stat., ch.
153, §§ 33-34, p. 662 (1846) ; Mississippi, Act of Feb. 15, 1839, tit.
III, art. 1, §9, Miss. Laws, p. 113 (1839), codified at Miss. Code,
ch. LXIV, tit. III, § 9, p. 958 (1848), recodified at Miss. Rev. Code,
ch. LXIV, art. 173, p. 601 (1857) ; Missouri, Mo. Rev. Stat., art. II,
§$ 10, 36, pp. 168-69, 172 (1835), recodified, as amended, at Mo.
Gen. Stat., pt. IV, tit. XLV, ch. 200, §§ 10, 34, pp. 778-79, 781
(1866) ; New Hampshire, Act of Jan. 4, 1849, N.H. Laws, ch. 743,
§$ 1-4, pp. 708-09 (1848), codified at N.H. Comp. Stat., tit. XXVI,
ch. 227, §§ 11-14, pp. 544-45 (1853); New Jersey, Act of Mar. 1,
1849, N.J. Laws, pp. 266-27 (1849) ; New York, Act of Dec. 10, 1828,
13
end of the Civil War, twenty-seven of the thirty-six
States had done so." By the end of 1868, the year in
ch. 20, 4, N.Y. Laws, 5ist Legis., 2nd Sess., p. 19 (1828), codified
at N.Y. Rev. Stat., pt. IV, ch. I, tit. II, art. I, § 9, p. 661, and tit. VI,
§ 21, p. 694 (1828-29), as amended by an Act of Apr. 30, 1830,
ch. 320, § 58, N.Y. Laws, p. 401 (1830), corified at N.Y. Rev. Stat.,
pt. IV, ch. I, tit. II, art. I, §9, pp. 550-51, and pt. IV, ch. I, tit. VI,
§ 21, pp. 578-79 (1828-35), repealed and replaced by N.Y. Laws,
ch. 260, §§ 1-3, 6, pp. 285-86 (1845), codified at N.Y. Rev. Stat.,
pt. IV, ch. I, tit. VI, §§ 20-21, p. 779 (1846), and N.Y. Laws, ch. 22,
§1, p. 19 (1846), codified at N.Y. Rev. Stat., pt. IV, ch. I, tit. II,
art. I, §9, p. 750 (1846) ; Ohio, Act. of Feb. 27, 1834, §§ 1, 2, Ohio
Laws, pp. 20-21 (1834), codified at Ohio Gen. Stat., ch. 35, §§ 111,
112, p. 252 (1841), as amended by an Act of Apr. 18, 1867, Ohio
Laws, pp. 135-36 (1867), which made the death of the woman or of
her unborn child at any stage of pregnancy a “high misdemeanor” ;
Vermont, Vt. Acts, No. 33, § 1, pp. 34-35 (1846), codified at Vt.
Comp. Stat., tit. XXVIII, ch. 108, §8, pp. 560-61 (1839-1850), as
amended by an Act of Nov. 21, 1867, Vt. Acts, No. 57, §§ 1, 3, pp.
64-66 (1867) ; Virginia, Act of Mar. 14, 1848, ch. 120, tit. II, ch. III,
§ 9, Va. Acts, p. 96 (1847-48), codified, as modified, at Va. Code,
tit. 54, ch. CXCI, §8, p. 724 (1849), recodified, Va. Code, tit. 54,
ch. CXCI, § 8, p. 784 (1860); Wisconsin, Wis. Rev. Stat., pt. IV,
tit. XXX, ch. 1383, § 11, pp. 683-84 (1849), superseded by Wis. Rev.
Stat., pt. IV, tit. XXVII, ch. CLXIV, § 11, p. 930, and ch. CLXIX,
§§ 58, 59, p. 969 (1858).
12 In addition to the eighteen States listed in note 11, the follow-
ing nine States adopted abortion statutes between 1850 and 1865:
California (admitted to statehood Sep. 9, 1850), Cal. Sess. Laws,
ch. 99, § 45, p. 233 (1849-1850), as amended by an Act of May 20,
1861, Cal. Stat., ch. DXXI, p. 588 (1861); Kansas (admitted to
statehood Jan. 29, 1861), Kan. (Terr.) Stat., ch. 48, $§ 10, 39, pp.
238, 243 (1855), superseded by Kan. (Terr.) Laws, ch. XXVIII,
§§ 10, 37, pp. 232, 237 (Acts of 1859), codified at Kan. Comp. Laws,
ch. XXXIII, §§ 10, 37, pp. 288, 293 (1862); Louisiana, La. Acts,
Act. 120, § 24, pp. 132-33 (1855), codified at La. Rev. Stat., Crimes
& Offenses, § 24, p. 138 (1856); Minnesota (admitted to statehood
May 11, 1858), Minn. (Terr.) Rev. Stat. ch. 100, $11, p. 493
(1851) ; Nevada (admitted to statehood Oct. 31, 1864), Nev. (Terr.)
Laws, ch. XXVIII, div. IV, § 42, p. 63 (1861) ; Oregon (admitted to
statehood Feb. 14, 1859), Act of Dec. 22, 1853, ch. III, § 13, Or.
(Terr.) Stat., p. 187 (1853-54), superseded by an Act of Oct. 19,
1864, Or. Gen. Laws, Crim. Code, ch. 43, § 509, p. 528 (1845-1864) ;
Pennsylvania, Pa. Laws, No. 374, tit. VI, §§ 87, 88, pp. 404-05
(1860) ; Texas, Act of Feb. 9, 1854, §1, Tex. Gen. Laws, ch. XLIX,
14
which the Fourteenth Amendment was ratified, thirty of
the then thirty-seven States had enacted such statutes,
including twenty-five of the thirty ratifying States,” to-
gether with six of the ten federal territories.”*
$1, p. 58 (1854), superseded by an Act of Aug. 28, 1856, codified
at Tex. Pen. Code of 1857, arts. 531-36, pp. 103-04, as amended by
an Act of Feb. 12, 1858, ch. 121, pt. I, tit. 17, ch. 7, Tex. Gen. Laws,
p. 172 (1858), codified at Tex. Gen. Stat. Dig., ch. VII, articles 531-
536, p. 524 (Oldham & White 1859); West Virginia (admitted to
statehood June 20, 1863), see Act of Mar. 14, 1848, ch. 120, tit. II,
ch. III, § 9, Va. Acts, p. 96 (1847-48), codified, as modified, at Va.
Code, tit. 54, ch. CXCI, § 8, p. 724 (1849), recodified, Va. Code, tit.
54, ch. CXCI, §8, p. 784 (1860), and W. Va. Const., art. XI, {8
(1863).
18 In addition to the twenty-seven States listed in notes 11 and 12,
the following three States adopted abortion statutes beween 1865
and 1868: Florida, Act of Aug. 6, 1868, Fla. Acts, 1st Sess.,
ch. 1637 [No. 13], sub. ch. III, § 11, and sub. ch. VIII, §9 (1868),
pp. 64, 97 (1868); Maryland, Act of Mar. 20, 1867, Md. Laws, ch.
185, § 11, pp. 342-43 (1867), repealed and re-enacted by an Act of
Mar. 28, 1868, Md. Laws, ch. 179, § 2, p. 315 (1868), codified at Md.
Code, art. XXX, § 1, pp. 105-06 (1868 Supp.) ; Nebraska (admitted
to statehood Mar. 1, 1867), Act of Feb. 12, 1866, Neb. (Terr.)
Stat., pt. III, ch. IV, § 42, pp. 598-99 (1866-67). Of the thirty States
ratifying the Fourteenth Amendment as of July 21, 1868, all but
Georgia (1876), North Carolina (1881), Rhode Island (1896),
South Carolina (1883) and Tennessee (1883) had enacted such
statutes.
14 The following territories adopted statutes restricting abortion
by the end of 1868: Arizona, Ariz. (Terr.) Code, ch. X, div. 5, § 45,
p. 54 (1865) ; Colorado, Colo. (Terr.) Laws, div. 4, § 42, pp. 296-97
(1861): Colo. (Terr.) Rev. Stat., ch. XXII, § 42, p. 202 (1868);
Idaho, Act of Feb. 4, 1864, ch. IV, § 42, Idaho (Terr.) Laws, p. 443
(1863-64), repealed and re-enacted by an Act of Dec. 21, 1864, ch.
III, pt. IV, § 42, Idaho (Terr.) Laws, p. 305 (1864); Montana,
Mont. (Terr.) Laws, Criminal Practice Acts, ch. IV, §41, p. 184
(1864) ; New Mezico, N.M. (Terr.) Laws, No. 28, ch. 3, § 11, p. 88
(1854), codified at N.M. Rev. Stat., art. XXIII, ch. LI, § 11, p. 320
(1865); Washington, Wash. (Terr.) Stat., ch. I], §§37, 38, p. 81
(1854).
These enactments are significant because laws passed by terri-
torial legislatures were subject to Congressional annulment. U.S.
Const., art. IV, § III, cl. 2; National Bank v. County of Yankton,
101 U.S. 129, 188 (1880). No territorial abortion statute was ever
15
The widespread adoption of these laws prior to the
ratification of the Fourteenth Amendment in 1868 under-
mines the Court’s conclusion in Roe that the “right of
privacy .. . founded in the Fourteenth Amendment’s con-
cept of personal liberty . . . encompass[es] a woman’s
decision whether or not to terminate her pregnancy.”
410 U.S. at 153. As Justice Rehnquist observed in dis-
sent, “[t]o reach its result, the Court necessarily .. .
had to find within the scope of the Fourteenth Amend-
ment a right that was apparently completely unknown to
the drafters of the Amendment.” /d. at 174 (Rehnquist,
J., dissenting). After reciting the statutory history set
out above, Justice Rehnquist stated:
There apparently was no question concerning the
validity of this provision [the Texas statute] or of
any of the other state statutes when the Fourteenth
Amendment was adopted. The only conclusion pos-
sible from this history is that the drafters did not
intend to have the Fourteenth Amendment withdraw
from the States the power to legislate with respect
to this matter.
Id. at 177 (Rehnquist, J., dissenting).
The Court dismissed the importance of this legislation,
concluding that the nineteenth century statutory prohibi-
tions of abortion were enacted not to protect prenatal
life but to guard maternal health against the dangers
of unsafe operations. 7d. at 151-52. Three reasons were
offered in support of this conclusion, none of which with-
stands scrutiny.
First, the Court stated that “[t]he few state courts
called upon to interpret their laws in the late 19th and
early 20th centuries did focus on the State’s interest in
protecting the woman’s health rather than in preserving
the embryo and fetus.” Jd. at 151 & n.48, citing State
v. Murphy, 27 N.J.L. 112 (1858). The Court not only
misapprehended the holding in the single case cited for
nullified by Congress, including the 39th Congress which approved
the Fourteenth Amendment.
16
this proposition, but also overlooked twenty-five deci-
sions from sixteen jurisdictions expressly affirming that
their nineteenth century statutes were intended to protect
unborn human life,’* and twenty-six other decisions from
seventeen additional jurisdictions strongly implying the
15 The Court’s reading of Murphy appears to be at odds with the
New Jersey Supreme Court’s understanding of its earlier opinion.
See State v. Siciliano, 21 N.J. 249, 257-58, 121 A.2d 490, 495 (1956),
and Gleitman v. Cosgrove, 49 N.J. 22, 41, 227 A.2d 689, 699 (1967)
(Francis, J., concurring).
16 Trent v. State, 15 Ala. App. 485, 488, 73 So. 834, 836 (1916) ;
Hall v. People, 119 Colo. 141, 143, 201 P.2d 382, 383 (1948) (“offense
described by the statute .. . is the criminal act of destroying the
fetus at any time before birth”) ; Dougherty v. The People, 1 Colo.
514, 522-28 (1872); Passley v. State, 194 Ga. 827, 329, 21 S.E.2d
230, 232 (1942); Nash v. Meyer, 54 Idaho 283, 301, 31 P.2d 273,
280 (1934); State v. Alcorn, 7 Idaho 599, 613-14, 64 P. 1014, 1019
(1901); Joy v. Brown, 178 Kan. 833, 839-40, 252 P.2d 889, 892
(1953); State v. Miller, 90 Kan. 230, 233, 183 P. 878, 879 (1913)
(statute “carries the facial evidence of the legislative intent to
cover the criminal machinations and devices of the abortionist in
order to protect the pregnant woman and the unborn child”) ; State
v. Watson, 30 Kan. 281, 284, 1 P. 770, 771-72 (1883); Rosen v.
Louisiana Board of Medical Examiners, 318 F. Supp. 1217, 1222-32
(E.D. La. 1970) (three-judge court), vacated and remanded, 412
U.S. 902 (1973) (interpreting Louisiana law) ; State v. Siciliano,
21 N.J. 249, 257-58, 121 A.2d 490, 495 (1956); State v. Gedicke,
43 N.J.L. 86, 89-90, 96 (1881); People v. Lovell, 40 Misc. 2d 458,
459, 242 N.Y.S.2d 958, 959 (1963); State v. Hoover, 252 N.C. 113,
133, 135, 118 S.E.2d 281, 283 (1960) ; State v. Powell, 181 N.C. 515,
106 S.E. 133 (1921); but see State v. Jordon, 227 N.C. 579, 580, 42
S.E.2d 674 (1947) (contra regarding pre-quickening abortion) ;
State v. Tippie, 89 Ohio Stat. 35, 39-40, 105 N.E. 75, 77 (1913);
Bowlan v. Lunsford, 176 Okla. 115, 117, 54 P.2d 666, 668 (1936) ;
State v. Ausplund, 86 Or. 121, 181-32, 167 P. 1019, 1022-23 (1917);
State v. Farnam, 82 Or. 211, 217, 161 P. 417, 419 (1916) (pregnant
woman could not lawfully consent to the homicide of her unborn
child); State v. Atwood, 54 Or. 526, 531, 102 P. 295, 297 (1909),
aff’d on reh., 54 Or. 526, 104 P. 195 (1909); State v. Steadman, 214
S.C. 1, 7-8, 51 S.E.2d 91, 93 (1948) (statute prohibiting pre-quicken-
ing abortion was intended to change the common law rule and pre-
vent “the destruction of a child before it has quickened’’) ; State v.
Howard, 32 Vt. 380, 399-401 (1859); Anderson v. Commonwealth,
190 Va. 665, 673, 58 S.E.2d 72, 75 (1950); Miller v. Bennett, 190
Va. 162, 169, 56 S.E.2d 217, 221 (1949); State v. Cox, 197 Wash.
17
same.’’? In every decade since the 1850’s, there has been
67, 77, 84 P.2d 357, 361 (1938). See also People v. Belous, 71 Cal.
2d 954, 978, 458 P.2d 194, 209, 80 Cal. Rptr. 354, 369 (1969) (Burke,
J., dissenting) (abortion statute “was designed to protect not only
the mother’s life but also that of the child’’).
17 McClure v. State, 214 Ark. 159, 170, 215 S.W.2d 524, 530
(1949) ; Scott v. State, 49 Del. 401, 409-10, 117 A.2d 831, 835-36
(1955) ; State v. Magnell, 19 Del. (3 Penne.) 307, 308, 51 A. 606
(1901); Urga v. State, 155 Fla. 86, 90, 20 So.2d 685, 687 (1944)
(approving jury instruction that “(t]he gist of the statutory offense
is the intent to terminate the creation by nature of a child and the
intent to bring about the miscarriage of a woman’); Weightnovel
v. State, 46 Fla. 1, 7-8, 35 So. 856, 858-59 (1903); but see Walsing-
ham v. State, 250 So.2d 857, 861 (Fla. 1971) (“[p]rotection of the
mother from unsafe surgical procedures may well have been in the
legislators’ minds when they enacted the abortion statutes in
1868”) ; Territory v. Young, 37 Haw. 150, 159-60 (1945), appeal
dismissed, 160 F.2d 289 (9th Cir. 1947) ; Earll v. People, 99 Ll. 123,
132 (1881) (abortion “a grave crime, involving the destruction of
an unborn child”); State v. Moore, 25 lowa 128, 131-32, 135-36
(1866) ; Abrams v. Foshee, 3 lowa 273, 278 (1856); State v. Rud-
man, 126 Me. 177, 180, 136 A. 817, 819 (1927) (abortion law in-
tended “‘to be an express and absolute prohibition” of “the destruc-
tion of unborn life for reasons . . . other than necessity to save the
mother’s life’) ; Smith v. State, 33 Me. 48, 57-59 (1851); Worth-
ington v. State, 92 Md. 222, 237-238, 48 A. 355, 356-57 (1901);
Lamb v. State, 67 Md. 524, 532-33, 10 A. 208 (1887); People v.
Sessions, 58 Mich. 594, 595-96, 26 N.W. 291, 293 (1886); People v.
Olmstead, 30 Mich. 431, 432-33 (1874); but see People v. Nixon,
42 Mich. App. 332, 335-40, 201 N.W.2d 635, 639-41 (1972), on
remand, 50 Mich. App. 39, 212 N.W.2d 607 (1973) (contra regarding
pre-qpickening abortion) ; Smith v. State, 112 Miss. 802, 810, 73 So.
793, 794 (1916), overruled on other grounds, Ladnier v. State,
155 Miss. 348, 124 So. 482 (1929); Hane v. State, 147 Neb. 67, 72,
22 N.W.2d 385, 389 (1946), on rehearing, 147 Neb. 73, 25 N.W.2d
35 (1946) ; Bennett v. Hymers, 101 N.H. 483, 484-85, 147 A.2d 108,
109-110 (1958); but see State v. Millette, 112 N.H. 458, 464, 299
A.2d 150, 154 (1972) (“[e]arly proscription of the practice of abor-
tion primarily sought to protect pregnant women from risks present
in all surgical procedures at that time”) ; State v. Bassett, 26 N.M.
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