Amicus Curiae Brief — United States v. Vuitch

INDEX.

PAGE

Interest of the Amicus Curiae ..........----++++++- 1

Statute Involved ......eeeeeeseeeeceeeeneeeceeeees 2

Summary of Argument ........--.+seeeeeeeeseeees 3

Argument ....-+2eeeeeeeceeeeeereerereesscesceeees 6

I. Congress Intended to Protect the Unborn

Child as well as the Mother .............- 6

A. The Authority of Congress ........... 6

B. The Exercise by Congress of Its Author-

ity Is Liberal to the Mother Compared

to That of the Several States ........ 7

C. Congress and the Several States Created

a Standard of Due Process and Equal

Protection for the Unborn Child ...... 9

Il. Property Rights of the Unborn Person Are

Protected by Law ..........-eeeeeeeeeeeee 11

III. Rights of the Unborn Person Are Now Pro-

tected by Tort Law ...........----eeeeeee 13

IV. The Right of the Unborn Person to Life Has

Been Protected and Preferred by Law Over

Certain Constitutional Rights of the Parents

and Over Interests of the State ............ 16

V. Recognized Rights of Marital Privacy Are

Not Inconsistent with the Congressional Pro-

tection of Rights of the Unborn .......... 20

VL The District of Columbia Abortion Statute Is

Not Unconstitutionally Vague ............ 24

VII. The Unborn Offspring of Human Parents Is

an Autonomous Human Being ............ 26

A. The Unborn Person Is Also a Patient .. 27

B. The Doctor Treats the Unborn Just As

He Does Any Patient ................ 34

ne eect ee cheeses tenet athe ve eane etre 41

Appendix A ......cccccccccccccccccvcssvesscvcees Al

Apes B 2. vcccsccscccoccccvvcuscosrcsesesseseia AG

Cases.

Anderson v. Commonwealth, 190 Va. 665, 58 S. E. 24

TE TU iii ce AeA Wii )

Babbitz v. McCann, U. S. D. C. Ed. Wis. No. 69-C-548. 3

Barnett v. Pinkston, 238 Ala. 327, 191 So. 371 (1939) .. 1

Berman v. Parker, 348 U. S. 26, 31 (1954) .......... 6

Bonbrest v. Kotz, 65 F. Supp. 138 (D. D. C. 1946) .... 14

Dietrich v. Northampton, 138 Mass. 14, 17 (1884) .... 13

District of Columbia v. John R. Thompson Co., 346

ie POPP eT titer Tere 6

Doe v. Clarke, 2 H. Bl. 399, 126 Eng. Rep. 617 (1795) .. 11

Griswold v. Connecticut, 381 U. S. 479, 85 Sup. Ct.

SORE, OA Tc, TE. BE ORD CH os 0 send dccccnsvciets |

Gullborg v. Rizzo, 331 F. 2d 557 (1964)............. 15

Hall v. Hancock, 15 Pick. 255 (Mass. 1834) .......... ll

Hoener v. Bertinato, 67 N. J. Super., 517, 171 A. 2d

ps rer Tree ey errors Se Perry yi ee 17

Keeler v. Superior Court of Amador County, Doc. 7853

dec. 6-12-70 (Supreme Court of California) ...... 21

Kudish v. Board of Registration in Medicine,

Mass. .......... .» 248 N. BE. 2d 264 (1969) .............. PH)

Kyne v. Kyne, 38 C. A. 2d 122, 100 P. 2d 806 (1st

BE h-0 50 0:50 50.006 6kvnvsnabugetsscaaunme 17

Mills v. Commonwealth, 13 Pa. St. 630 (1850) ........ 9

People Ex Rel. Wallace v. Labrenze, 411 Ill. 618, 104

N. E. 2d 769 (1952)

iii

People v. Belous, 71 Cal. 2d 996, 458 P. 2d 194, 80 Cal.

ee: TE ee 4, 8, 24, 25

Prince v. Massachusetts, 321 U. S. 158, 166, 64 S. Ct.

438, 88 L. Ed. 645 (1944) ......... cece ee cece ee eee

Raleigh Fitkin-Paul Memorial Hospital v. Anderson,

42 N. J. 421, 201 A. 2d 537 (1964) cert. denied 377

U. 8. 985, 12 L. Ed. 2d 1032, 84 S. Ct. 1894 (1964) ..

In re Sankey’s Estate, 199 Cal. 391, 249 P. 517 (1926)..

Scott v. McPheeters, 33 Cal. App. 2d 629, 92 P. 2d 678,

SE OE on tes a'e cin kok brn. ab o0.b ee wa Aas

State v. Hoover, 252 N. C. 133, 113 S. W. 2d 281

Es cole Pen tcc dissapear ules Candahetentia

State v. Howard, 32 Vt. 380 (1859) ..................

State v. McCoy, 52 OS 157, 39 N. E. 316 (Ohio Supreme

| ere ree rer Ter ie tT ee Ore

State of Missouri v. Mucie, Mo. , 448 8. W. 2d

ME CREED bas deatenidvonsuddeseiseindisinys

State v. Moretti, 52 N. J. 182, 244 A. 2d 499 (1968)

cert. denied 393 U. S. 952 (1968) ................

State v. Murphy, 27 N. J. L. 112, 114 (Sup. Ct. 1858)..

State v. Perricone, 37 N. J. 463, 181 A. 2d 751 (1962)

cert. denied 371 U. S. 890, 83 S. Ct. 189, 9 L. Ed. 2d

SPRUE 8s dns vauewdenlsdehse cedceeedlocasesducs

State v. Siciliano, 21 N. J. S. 249, 121 A. 2d 480, 495

PETTITT TTT ree ee eee ere ee rere

Stidman v. Ashmore, 109 O. App. 431, 11 Ohio Ops.

2d 383, 167 N. E. 2d 106 (Ohio App. 1959) ..........

Stoutenburgh v. Henrick, 129 U. S. 141, 147, 9 S. Ct.

SA a SE SE bins ovbbeslcdoectuccavas

Thelluson v. Woodford, 4 Ves. 227, 31 Eng. Rep. 117

9990888890886 F460989080886000093286846008086066 0866

17

12

13

iv

Todd v. Sandidge Construction Co., 341 F. 2d 75

CMBOED. 00 cccsccscvccvesccccccccsccessunbs acwibual

Wallis v. Hodson, 2 Atk. 117 ........-..eceeeeuees,

Williams v. Marion Rapid Transit, 152 Ohio 114, 87

NW. BE BA B06 (100D). ociecccccvcdscvvcvsccs ats atns

Books and Articles.

IB A. Ta TB. Bed GSB (UGG) oc cc ccccscvessvccccians

American Medical Association, 1846-1951, Digest of

Official Actions (edited F. J. L. Blasingame 1959)

BD vec cbeodeeviscdcccsstesevevercescubeteeten

American Medical Association, Minutes of the Annual

Meeting 1859, The American Medical Gazette 1859,

Biondi, La Patria Potestas, I] Diritto Romano Christi-

GO Cite File Se Be oc icc cccesiceuonesenibuees

Bishop, Commentaries on the Law of Statutory Crimes,

* F & & Perr ate

Blackstone, Commentaries on the Laws of England

Sb Sv ecsenkh bes duce eiuds sivevcdsesieue 14, 18, 38

Bracton, The Laws and Customs of England III, ii, 4,

Wents OG. TORR, W BEE ss osc ccccciesksiwenateg 21, 22

Brinster and Thomson, Development of Eight-Cell

Mouse Embryos in Vitro, 42 Experimental Cell Re-

SRE GU RROD (8 oboe nercedve cutcdesdvapereee

Budkland and McNair, Roman Law and Common Law,

Oe Fee err er errr r Terri tty. it

3 Colca, Eoctitates GO (1608) .....0sccevseceseuveoyal 9,21

Comment, To Be or Not To Be: The Constitutional

Question of the California Abortion Law, 118 U. Pa.

Ba SU, GED CRIP onc cv ccsccevsscsnsceses irene 8

Vv

Gordon, The Unborn Plaintiff, 63 Mich. L. Rev. at 627

(TIE) nw ovccveccccccecovcevessccceseusnsvesbews 14

Gruenwald, Growth of the Human Fetus, 94 American

Journal of Obstetrics and Gynecology, 1112 (1966).. 15

Guttmacher, Pregnancy and Birth, p. 86 (paperback

NE ore et ete cev recs nnvedeunsanesesieecadiors 20

M. Hale, Pleas of the Crown (1st Am. ed. at 412-13,

DED vasa pevesvevavevepiesyseasteundines teehee 18

Hawkins, Williams, Pleas of the Crown, Vol. 1, p. 121

SE Kab pe ecsnnnsastecny eneewnededewsbbeaniasen 21

Holdsworth, History of English Law, 389 n. 1 (3rd

SE SE, PFRA SSD EE Ona NE RmUN ER REOweeK Rd e4Soo655 21

pe SS ees 21

Kempe et al, The Battered-Child Syndrome, 181

American Medical Association Journal 17 (1962) .. 23

H. M. I. Liley, M.D., Modern Motherhood, pp. 26-27

(Rev. Ed. Random House, 1969) .............. 5, 17, 27

Louisell and Noonan, Constitutional Balance, in The

Morality of Abortion (Harvard Univ. Press, 1970).. 10

Lucas, Roy, Federal Constitutional Limitations on the

Enforcement and Administration of State Abortion

Statutes, North Carolina L. Rev. 46, 730 (1967-

H. C. Markham, Foeticide and Its Prevention, ibid.,

Os Bl, GD cin vivo vn vincveccaccce, 30

Means, The Law of New York Concerning Abortion,

14 New York L. Forum, 411, 508 ft eee 8, 10, 21

Morison, Fetal and Neonatal Pathology, 99-100 (1963) 15

Noonan, Contraception, Belknap Press of Harvard U.

Press, Cambridge, p. 113 (1965) ................ 21

Edwin W. Patterson, Law in a Scientific Age (1963).. 16

a

Plunkett, Concise History of the Common Law, at pp,

vi

MEEWUTUCTTTETTT TET TTT TE eT TTT re 2

Prosser on Torts (3rd Ed. 1964) ............ 13, 14, 15, 16

Quay, Justifiable Abortion, 49 Georgetown Law

Journal, 395, 447-520 (1961)................ 7, 10, 22, 40

Isaac M. Quimby, Introduction to Medical Jurispru-

dence, Journal of American Medical Association,

Asmpent 6, TORT, Ves: B, Wi BOE scaccwccccnccacckcsy 30

Senate Report No. 2174, Institute of Child Health and

Human Development (Sept. 27, 1962), Committee

on Labor and Public Welfare .................. %6

The Terrible Choice: The Abortion Dilemma, Bantam

BORER. CIPGEE - Nek candsnibdnesusacasscdnncentiea 26

Paolo Zacchia, Quaestiones Medico-Legales 9.1 (1621) 2

Statutes.

California Civil Code, Section 196a, Section 29 ....17,18

California Health and Welfare Code 25951 (c)(1) ... %

California Penal Code, Secs. 3705-06 (West 1954) .... 18

California Probate Code, Sec. 250 .................. 12

Be GC, Ge TI isk cen cskisidecincsccices 2, 3, 7, 20, 24

oe eee SS eer tree 2

Lord Ellenborough’s Act 43 Geo. 3, C58 (1803) ...... 21, 22

General Assembly of the United Nations, Declaration

of the Rights of the Child, (Official Records of the

General Assembly, 14th Session, pp. 19-20) ........ 19

SD Wy. TG, Bee ch hi vencesscccnccccancacexcuncnees 1

ee eS ree 35

For extensive medical bibliography in Section VII see

infra, pages 42-46

ee ee

IN THE

Supreme Court of the Gnited States

Ocroser Trrm, 1970.

No.

UNITED STATES OF AMERICA,

Appellant,

vs.

MILAN VUITCH,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA.

BRIEF AND APPENDICES OF DR. BART

HEFFERNAN, AMICUS CURIAE IN

SUPPORT OF APPELLANT.

_

INTEREST OF THE AMICUS CURIAE.

There is presently pending in the U. S. District Court

for the Northern District of Illinois an action under the

Declaratory Judgment Statute (28 USC 2281) seeking to

have the Illinois statute on abortion declared unconsti-

tutional.

Dr. Bart Heffernan has been appointed Guardian Ad

Litem for the class of all unborn children in the State of

Illinois who will be adversely affected by the abolition of the

abortion statute in Illinois. His Petition to Intervene is

_—e

2

attached as Appendix A; the Order allowing intervention

and appointing Dr. Heffernan Guardian Ad Litem for the

class of all unborn children in the State of Llinois js

attached as Appendix B.

It is the obligation of the Guardian Ad Litem to take

all necessary action to secure the legal rights and redress

the legal wrongs to his wards. The outcome of the instant

case will profoundly affect his wards. The Federal Rules

of Civil Procedure state: ‘‘The Court shall appoint a

Guardian Ad Litem for an infant or incompetent person

not otherwise represented in an action or it shall make such

other order as it deems proper for the protection of the ©

infant or incompetent person.’’ (F. R. C. P., Rule 17(c)),

Dr. Heffernan has received consent from all of the parties

to file an Amicus Brief.

STATUTE INVOLVED.

D. C. Code Ann. § 22-201:

‘*Whoever, by means of any instrument, medicine,

drug or other means whatever, procures or produces,

or attempts to procure or produce an abortion or mis-

carriage on any woman, unless the same were done

as necessary for the preservation of the mother’s life

or health and under the direction of a competent

licensed practitioner of medicine, shall be imprisoned

in the penitentiary not less than one year or not more

than ten years; or if the death of the mother results

therefrom, the person procuring or producing, or

attempting to procure or produce the abortion or mis-

carriage shall be guilty of second degree murder.

(Mar. 3, 1901, 31 Stat. 1322, ch. 854, § 809; June 29,

1953, 67 Stat. 93, ch. 159, § 203.)”’

SUMMARY OF ARGUMENT.

Congress has as much power to prohibit or regulate

abortion in the District of Columbia as do the state legis-

latures for their respective states. By D. C. Code 22-201,

adopted in 1901 and readopted in 1953, Congress pro-

hibited all abortions except those ‘‘done as necessary

for the preservation of the mother’s life or health and

under the direction of a competent licensed practitioner

of medicine.’? The provision requiring a licensed prac-

titioner was for the protection of the mother against

incompetent medical treatment. The provision ‘‘necessary

for the preservation of the mother’s life or health’’ was

the balance struck by Congress between the interests of the

mother in life or health, and that of the child in his con-

tinuing life.

By reason of inclusion of ‘‘health,’’ the balance struck

by Congress was more liberal toward the mother than that

by the state legislatures. But Congress, like the legis-

latures, did prescribe a standard or scale of measurement

of the relative rights of mother and child: life or health

of the former against life of the latter. It thereby forbad

indiscriminate or permissive destruction of the unborn,

which is authorized under the decision below.

That decision distorts the law from one forbidding

abortions except as narrowly limited, into one authorizing

all abortions if they be done by physicians.

The minimal protection of the unborn, provided by Con-

gress, is clearly within the competence of government. For

centuries, the common law of property has treated the

unborn child as an autonomous human being. Within the

last several decades, the burgeoning scientific knowledge

of the realities of fetal life, has worked a dramatic revo-

lution in tort law: ‘‘The unborn child in the path of an

—

4

automobile is as much a person in the street as the mother,”

It has even been held that sacred constitutional rights of

parents, e.g. free exercise of religion, must give way to the

unborn’s need for a blood transfusion. In other contexts,

interests of the parents must be subordinated when they

conflict with the unborn’s interest in his continuing life,

The state must withhold its penal sanction of execution

while a woman carries a child.

This convergent development of property, tort, equity

and constitutional principles has been the law’s response

to the scientific realities of life within the womb. As

scientific certainty has increased, the law’s protection has

become more comprehensive, notably in the tort cases,

Until the almost hysterical current clamor for completely

permissive abortion, the law’s progress had been constant,

and roughly parallel to the increase in scientific certainty

of the nature of the unborn. It would be a strange twist

of values if government, which acknowledges all of these

rights in the unborn, were held wholly helpless to protect

them against direct destruction at the mere will of the

mother.

The Solicitor General is demonstrating in his Brief that

the concept used below thus to emasculate government—

vagueness—cannot stand the test of this Court’s teaching.

On this point, we limit ourselves to arguing that the Belous

case relied on below is insupportable.

The argument that any restriction on abortion invades

marital privacy is fatuous. Of course a woman has the

right to avoid the burden of pregnancy. But after preg-

nancy exists, the evolution of the law regarding women’s

rights encounters the evolution in scientific knowledge, that

the unborn is a human person.

Human life is a continuum—all of it, fetal, infant, ado-

lescent, mature or aged, is in the process of becoming. The

_—

5

biological realities of fetal life, made apparent to all willing

to read, by modern embryology, fetology, genetics and

perinatology, are elucidated in some detail in the final pages

of this Brief. They are summarized by H. M. I. Liley, M.D.

in Modern Motherhood, pp. 26-27 (Rev. Ed. Random House,

1969) :

“The head (of the fetus), housing the miraculous

brain, is quite large in proportion to the remainder of

the body, and the limbs are still relatively small.

Within his watery world, however (where we have been

able to observe him in his natural state through a sort

of closed-circuit x-ray television set), he is quite beau-

tiful, perfect in his fashion, active and graceful. He is

neither a quiescent vegetable nor a witless tadpole, as

some have conceived him to be in the past, but rather

a tiny human being, as independent as though he

were lying in a crib with a blanket wrapped around

him instead of his mother.’

ARGUMENT.

I.

CONGRESS INTENDED TO PROTECT THE UNBOEN CHILD

AS WELL AS THE MOTHER.

A. The Authority of Congress.

Section 8 of Article I of the United States Constitution

gives Congress power: ‘‘To exercise exclusive legislation

in all cases whatsoever, over such District (not exceeding

ten miles square) as may, by cession of particular states,

and the acceptance of Congress, become the seat of the

Government in the United States ...’’

Dr. Vuitch challenged the exercise of that authority in

the trial court which, in its opinion, referred to Congress’

police power in passing the District of Columbia abortion

statute. It is clear that Congress exercises over the Dis-

trict of Columbia at least all the legislative powers which

a state may exercise over its affairs. Berman v. Parker,

348 U. S. 26, 31 (1954). See also District of Columbia v.

John R. Thompson Co., 346 U. S. 100, 108. In Stouten

burgh v. Henrick, 129 U. S. 141, 147, 9 S. Ct. 256, 257, 32

L. Ed. 637, it is said at page 638:

‘‘Congress has express power ‘to exercise exclusive

legislation in all cases whatsoever’ over the District

of Columbia thus possessing the combined powers of

a general and of a state government in all cases where

legislation is possible.’’

7

B. The Exercise by Congress of Its Authority Is Liberal to

the Mother Compared to That of the Several States.

When passed in 1901, the District of Columbia statute

on abortion (now D. C. Code Sec. 22-201) was substantially

similar to most abortion statutes in the several states and

territories, with the exception of the words ‘‘.. . or health

_,.” which then appeared only in the D. C. statute. All

of the abortion statutes of the states and territories in

1901 absolutely prohibited or severely restricted abortion.

Several absolutely prohibited it. Most prohibited it unless

necessary to preserve (or save) the life of the mother,

although there was occasional variation in the verbal

formula. For example, Maryland proscribed abortion

unless ‘“‘. . . no other method will secure the safety of

the mother.’’ New Jersey prohibited abortions done

“without lawful justification.’? Pennsylvania proscribed

abortions done with the ‘‘unlawful’’ use of any instrument.

In a few states, a necessity to save the child’s life was

an additional authorizing exception. See Quay, Justifiable

Abortion, 49 Georgetown Law Journal, 395, 447-520 (1961).

When Congress passed the Law Enforcement Act of

1953 amending Section 22-201 of the D. C. Code to its

present form, it made no substantive change in the pro-

hibition of abortions. The law continued to prohibit them

except ‘‘as necessary for the preservation of the mother’s

life or health’’ and when performed by a competent licensed

practitioner of medicine. In 1953, almost all state statutes

still prohibited abortions unless necessary for the preser-

vation (or to save) the life of the mother. Apparently by

this time only the District of Columbia and Alabama stat-

utes contained the words ‘‘or health’’ as well as ‘‘life’’

in granting the exceptional protection to the mother. See

Quay Justifiable Abortion, supra, at pp. 447, 456.

By prohibiting abortions except when necessary to pre-

——

8

serve the life of the mother, Congress did only what almost

all American legislatures had done. True, by adding the

words ‘‘... or health .. .’’ Congress struck a balance, as

between mother and unborn child, more favorable to the

mother than that of the other American legislatures,

The significant thing is that in 1901 Congress prohibited

all abortions except when performed by physicians and

‘‘when necessary for the preservation of the mother’s life

~orhealth.’’ This protection of the unborn* was reconfirmed

as recently as 1953. The decision below reverses the Con-

gressional mandate, and makes permissible all abortions,

without reference to any balance of interest between

mother and child, provided only the abortion is performed

by a physician. Obviously, Congressional intent has not

so reversed itself, and the court’s technique chosen to

work the reversal is that the statutory words are uncon-

stitutionally vague. To have stricken as vague only “‘.,,

or health .. .”’ would have made the District of Columbia

law conform with the American norm, which prohibits

abortions except when necessary to save the mother’s life,

But the Court below reached out to strike down the entire

clause without analysis, invoking only People v. Belous,

71 Cal. 2d 996, 458 P. 2d 194, 80 Cal. Rptr. 354 (1969), the

four to three California decision demonstrably lacking

in historical accuracy. See Comment, To Be or Not To Be:

The Constitutional Question of the California Abortion

Law, 118 U. Pa. L. Rev. 643 (1970).**

* Where the statute involved, as in the District of Columbia,

makes no distinction between the quick and the unquickened fetus

it is clear that the life revered under the statute is the fetus

itself. See Means, The Law of New York Concerning Abortion,

14 New York L. Forum 411, 508 (1968). Means says: ‘‘The

Common Law protected the quickened (but not the unquickened)

fetus as a being with its own right to life, immune to destruction

at maternal will.’’ Ibid. p. 508.

** The rationale of Belous, however imprecise historically, a

a practical matter worked no serious judicial undermining of

legislation because while that case was pending, the California

legislature amended its abortion statute.

— ‘

We later show that the exception ‘‘when necessary for

the preservation of the mother’s life or health’’ is the

working norm of the American medical profession, under-

stood and daily applied as a standard medical judgment.

This leaves nothing—other than loose references below to

rights of privacy and Fifth Amendment procedural safe-

guards—upon which to predicate the court’s reversal of

the legislative protection of the unborn.

0. Congress and the Several States Created a Standard of

Due Process and Equal Protection for the Unborn

Child.

As noted, Congress has forbidden abortions except those

necessary to preserve the life or health of the mother, when

performed by licensed physicians. The requirement of a

licensed physician was to safeguard the mother. Pro-

hibition of all abortions, except those necessary to safe-

guard the life or health of the mother, was the standard to

protect the rights of the unborn.* It was the balance

struck in measuring life against life—not a mere additional

protection of the mother. In effect, Congress enacted a

minimal norm of due process and equal protection for the

unborn by specifically forbidding killmg them unless neces-

* Many courts have held that the purpose of the abortion statutes

are for the protection of both mother and child. State v. Howard,

32 Vt. 380 (1859) ; State v. Hoover, 252 N. C. 133, 113 S. E. 2d

281 (1960) ; ‘‘The statute defining abortion is designed to protect

the life of the mother as well as the child’’, Anderson v. Common-

wealth, 190 Va. 665, 58 S. E. 2d 72, 75 (1950) ; State v. Siciliano,

21 N. J. S. 249, 121 A. 2d 480, 495 (1956); State v. Murphy,

27 N. J. L. 112, 114 (Sup. Ct. 1858), Mills v. Commonwealth,

13 Pa. St. 630 (1850). Even where the statute involved says

nothing concerning the pregnant woman’s participation in the

abortion other than as a seemingly consenting passive participant,

some courts have held her guilty as an accessory to the crime.

State v. McCoy, 52 OS 157, 39 N. E. 316 (Ohio Supreme Court

1894), Coke said that the pregnant woman herself committed a

crime if she aborted a quickened fetus. 3 Coke, Institutes 50 (1648).

——

10

sary for the mother’s life or health. The balance struck by

Congress was liberal for the mother and restrictive for

the unborn, vis-a-vis the usual American legislative stand.

ard. The decision below destroys all protection of the up.

born, so that even whim can supersede the right to life,

There is nothing unusual, arbitrary or vague in Congress

exercising its inherent legislative authority to protect the

civil rights of the unborn. The progress of our law in

recognition of the fetus as a person has been constant and

roughly parallel to the growth of knowledge of biol.

ogy, embryology, fetology, genetics and perinatology.

Judge Gesell’s opinion failed to examine the statute from

the point of view of the unborn child. Yet the statute must

be considered from both points of view: Those of the

mother and the child. If Congress had intended to protect

only the mother, then no balancing of rights between those

of the unborn and the mother would have been necessary,

Congress, from the mother’s point of view, would have

limited the statute to the requirement of performance by

a competent medical man. By limiting even competent

medical men to certain conditions (the health or life of the

mother) Congress was saying that not all abortions are

legal even when performed by competent medical men

Turning to our law’s evolving protection of the righis

of the unborn in property, tort, constitutional and equity

cases, it will be noted that long before modern biology’s

certain demonstration of the human qualities of the fetus,

the English cases resolved scientific, as well as moral and

philosophical, doubts in favor of the unborn.*

* For a review of the development of the English and American

criminal law in protection of the unborn, see Louisell and Noonan,

Constitutional Balance, in The Morality of Abortion (Harvard

Univ. Press, 1970) ; Quay, Justifiable Abortion, 49 Georgetown L.

J. 395, 430 (1961) ; See also Means, The Law of New York Con-

cerning Abortion, 14 New York L. Forum 411, 439 n. 64 (1968).

11

Il.

PROPERTY RIGHTS OF THE UNBORN PERSON ARE

PROTECTED BY LAW.

For centuries, the English common law of property has

recognized the unborn child as an autonomous human

being. It has thus reflected a basic psychological evalua-

tion that in law, as in ordinary thought, ‘‘child’’ includes

the conceived but as yet unborn. In Doe v. Clarke, 2 H. BI.

399, 126 Eng. Rep. 617 (1795) the court interpreted the

ordinary meaning of ‘‘children’’ in a will to include a child

inthe womb: ‘‘An infant en ventre sa mere, who by the

course and order of nature is then living, comes clearly

within the description of ‘children living at the time of his

decease.’’’ In Thelluson v. Woodford, 4 Ves. 227, 31 Eng.

Rep. 117 (1798) Buller, J. rejected the contention that this

was a mere rule of construction invoked for the benefit of

the child: ‘‘Why should not children en ventre sa mere

be considered generally as in existence? They are entitled

to all the privileges of other persons.’’ (Ibid. at p. 323).

To the argument that such a child was a nonentity he re-

plied, at p. 322:

“Let us see, what this non-entity can do. He may be

vouched in a recovery, though it is for the purpose of

making him answer over in value. He may be an ex-

ecutor. He may take under the statute of distributions.

He may take by devise. He may be entitled under a

charge for raising portions. He may have an injunc-

tion; and he may have a guardian.’

When the English property rules were adopted by Ameri-

can courts, the same approach was taken. In Hall v. Han-

cock, 15 Pick. 255 (Mass. 1834) the issue was whether a

bequest to grandchildren ‘‘living at my decease’’ was valid

and the court was asked to say that ‘‘in esse’’ was not the

same as ‘‘living’’ and that for a child to be “‘living’’ the

ay

12

mother must be at least ‘‘quick.’’ Chief Justice Shaw held

that a conceived child fell within the meaning of the lan.

guage and quoted with approval Lord Hardwicke in Wallis

v. Hodson, 2 Atk. 117: ‘‘The principal reason I go upon

is, that a child en ventre sa mere is a person in rerum natura,

so that, both by the rules of the civil and common law, he

is to all intents and purposes a child, as much as if born

in the father’s lifetime.’’

The path of Anglo-American common law has been fol-

lowed by statute. For example, California Probate Code,

Sec. 250 provides that ‘‘A posthumous child is considered

as living at the death of the parent.’’ Cal. Probate Code,

Sec. 255, amended as recently as 1961, provides that an

illegitimate child is the heir of his mother, whether the

child is ‘‘born or conceived.’’

The approach of the courts is not a Pickwickian one,

making what is not in nature something in law. It has

not been a sentimental concession to the supposed benefit

of some forgotten posthumous child. The rule has been

applied even where the application benefited some third

party, Barnett v. Pinkston, 238 Ala. 327, 191 So. 371

(1939) and even where the child himself has been in

jured by the rule, In re Sankey’s Estate, 199 Cal. 391,

249 P. 517 (1926) (where a child conceived but not born

was held bound by a decree entered against the living

heirs).

These property cases established two propositions: First,

the ordinary person when he uses ‘‘children’’ in a will

means to designate by the term children those who are

conceived but not yet out of the womb. This interpreta-

tion has, to our knowledge, never been criticized as fancifal

or arbitrary or imposed by a court in the service of some

theological scheme; it has been generally accepted as a

fair interpretation of the ordinary use of language and of

——

13

the ordinary person’s notion of who are ‘‘children.’’ Sec-

ond, the child in the womb has property rights if there is

a will, trust or intestate disposition leaving property to a

dass of living persons within which he falls.

From these propositions we argue that Congress may

properly defend those whom ordinary language designates

as “children’’ and Congress may properly prevent the

wregulated extinction of those who may possess property.

It would indeed be a strange inversion of values if it were

the crime of embezzlement for a parent or guardian to filch

an unborn child’s income but no crime at all to destroy the

recipient of that income.

Ii.

RIGHTS OF THE UNBORN PERSON ARE NOW PROTECTED

BY TORT LAW.

In the area of tort law, a dramatic change has occurred

in the status of the unborn. Well into the twentieth cen-

tury most American decisions denied recovery in tort to

the human offspring harmed in the womb. The denial was

based in part on the danger of fraudulent claims, in part

on the difficulty of proving causation, but principally on the

ground that ‘‘the defendant was not in existence at the

time of his action,’ Prosser on Torts (3rd Ed. 1964), Sec.

56. The theory followed was that succinctly expressed by

Justice Holmes in Dietrich vy. Northhampton, 138 Mass. 14,

at p. 17 (1884): ‘‘The unborn child was a part of the

mother at the time of the injury.”’

In Scott v. McPheeters, 33 Cal. App. 2d 629, 92 P. 2d 678

(1939), petition for rehearing denied, 93 P. 2d 562 (1939)

the court held that a child might sue for injury to her

in delivery before birth. The Court observed:

“The respondent asserts that the provisions of Sec-

tion 29 of the Civil Code are based on a fiction of law

14

to the effect that an unborn child is a human being

separate and distinct from its mother. We think that

assumption of our statute is not a fiction, but upon the

contrary that it is an established and recognized fagt

by science and by everyone of understanding.”’

The District of Columbia did not lag far behind. Box.

brest v. Kotz, 65 F. Supp. 138 (D. D. C. 1946). Since 1946,

the California and District of Columbia approach has be.

come general: |

‘*. . . [A] series of more than thirty cases, many of

them expressly overruling prior holdings, have brought

about the most spectacular abrupt reversal of a well-

settled rule in the whole history of the law of torts,”

Prosser on Torts, supra, p. 355.

As another writer puts it:

‘‘The battle in jurisprudence is almost over. The de-

velopment of the infant’s right of action has illustrated

the inherent capacity of legal systems to adjust to new

situations.’’ Gordon, The Unborn Plaintiff, 63 Mich.

L. Rev. at 627 (1965).

For a time there was hesitation as to whether recovery

must be restricted to a child who was ‘‘viable’’ or, whether

alternatively, that at least the mother be ‘‘quick’’ at the

time of the injury.* But the majority of courts have im-

posed no such limitation on the right to recover, Prosser on

* At the common law the unquickened fetus was not considered

alive. In 4 Blackstone, Commentaries on the Laws of England

(eoncerning reprieves) 394-95 (1769) it is said: . . . “‘and if they

bring in their verdict ‘‘quick with child’’ (for barely, ‘‘with

child,’’ unless it be alive in the womb, it not sufficient).’’ In other

words, ‘‘with child’? was not sufficient to stay execution of s

pregnant felon because the fetus was not considered to be alive;

whereas ‘‘quick with child’’ was sufficient to stay execution since

the fetus was alive and the law would not take the lives of two

people where only one had committed the crime. Blackstone

also said: ‘‘Life is the immediate gift of God, a right inherent

by nature in every individual; and it begins in contemplation of

law as soon as an infant is able to stir in the mother’s womb.”

1 Blackstone 124 (1769).

15

Torts, Sec. 56. ‘‘Viability’’ of a fetus is not a constant

but depends on the anatomical and functional development

of the particular baby, Morison, Fetal and Neonatal Pathol-

ogy, 99-100 (1963). The weight and length of the fetus

are better guides than age to the state of fetal development

bat weight and length vary with the individual, Gruenwald,

Growth of the Human Fetus, 94 American Journal of

Obstetrics and Gynecology, 1112 (1966). Moreover, dif-

ferent racial groups have different ages at which their

fetuses are viable. Some evidence, for example, suggests

that Negro fetuses mature more quickly than white fetuses,

Morison, Fetal and Neonatal Pathology, at 101. Viability

can also depend on the environment to which the fetus is

delivered, as has been demonstrated clinically with animals,

Brinster and Thomson, Development of Eight-Cell Mouse

Embryos in Vitro, 42 Experimental Cell Research 308

(1966). There seems no reason to condition the rights of

a fetus on such a shifting and uncertain standard, no reason

to draw a line based on age or size within the womb. As

Prosser observes at Sec. 56, ‘‘Certainly, the infant may De

no less injured, and all logic is in favor of ignoring the

stage at which it occurs.’’

As to actions for wrongful death resulting from negligent

injuries to the unborn, the situation on a national basis is

complicated by the varying provisions of the state wrong-

fol death statutes. One question has been whether an un-

born child is a ‘‘person’’ within the meaning of the con-

trolling statute. A majority of courts passing on this

question have answered ‘‘Yes’’ even when the child was

stillborn. See 15 A. L. R. 3rd 922 (1967). This includes

the Third and Fourth Circuits, Gullborg v. Riezo, 331 F.

ad 557 (3rd 1964; Penn. Statute); Todd v. Sandidge Con-

struction Co., 341 F. 2d 75 (1964; South Carolina Statute).

Ohio’s acknowledgement of the humanity of the fetus is

explicitly deduced from its constitution. Williams v. Marion

16

Rapid Transit, 152 Ohio 114, 87 N. E. 2d 334 (1949) ; Stig.

man v. Ashmore, 109 O. App. 431, 11 Ohio Ops. 2d 383, 167

N. E. 2d 106 (Ohio App. 1959).

The dean of authorities on tort law notes that all writers

on the subject have maintained ‘‘that the unborn child in

the path of an automobile is as much as person in the

street as the mother,’’ Prosser on Torts, Sec. 56. Can such

a child become less a person when, instead of an automobile,

another agency is directed to his destruction?

The tort development summarized above is taken as a

prime example of the effect of scientific development on

law in the instructive book of Edwin W. Patterson of

Columbia University Law School entitled Law in a Scien

tific Age (1963). He concludes at p. 35 ‘‘that the meaning

and scope of even such a basic term as ‘legal person’ can

be modified by reason of changes in scientific facts—the

unborn child has been recognized as a legal person, even in

the law of torts.’’

a¥.

THE RIGHT OF THE UNBORN PERSON TO LIFE HAS BEEN

PROTECTED AND PREFERRED BY LAW OVER CERTAIN

CONSTITUTIONAL RIGHTS OF THE PARENTS AND OVER

INTERESTS OF THE STATE.

Despite the precedents of property and tort law recog-

nizing the rights of the unborn, it might be argued that the

law does not accord this recognition where the interests

of the unborn clash with those of his parents. Such modern

law, however, as has developed in this unusual area is to

the contrary. Where the life of the unborn child. is in

balance with some lesser interest of the parent, the child

has been preferred.

One type of case has arisen through the advances of

medicine in the science of fetology. Techniques have been

developed since 1963 to make lifesaving transfusions of

—

17

who have developed acute anemia in the

blood to fetuse:the incompatibility of the fetus’ blood with

womb because ood. Liley, Modern Motherhood, Random

the mother’s b)69).

House, p. 48 (J interest between fetus and parent has

A conflict 0! the parent by religious conviction has

occurred wher4 to permit a blood transfusion. In Raleigh

believed it sinflrorigl Hospital v. Anderson, 42 N. J. 421,

Fitkin-Paul Meyg64) cert, denied 377 U. S. 985, 12 L. ed.

201 A. 2d 537 (G4, 1894 (1964), the mother refused for

hae 84 S... to have blood transfusions which had

= OE medically necessary to save her unborn

child’s life. At page 538 the New Jersey Supreme Court

Pe -. tisfied that the unborn child is entitled to

ae lent )rotection and that an appropriate order

ahead be nade to ensure blood transfusions to the

the event that they are necessary in the

mother in, “of pay :

opinion of the physician in charge at the time.”’

The life of the unborn child was treated as a value out-

weighing even the sacred constitutional right to freely

exercise one’s eligion. See also Hoener v. Bertinato, 67

N. J. Super., 57, 171 A. 2d 140 (1961).

Elsewhere the choice between the interests of the unborn

and the civil rights of the parent have been presented in a

different context. For example, in Kyne v. Kyne, 38 C. A.

24 122, 100 P. 2d 806 (1st District 1940), the issue was

whether a father might be compelled to support a fetus

conceived by him. A suit seeking support was begun by

the fetus’ guardian ad litem when the fetus was less than

six months old, The court applied California Civil Code,

Section 196a providing that ‘‘The father as well as the

mother of an illegitimate child must give him support and

education suitable to his circumstances.’’ The court held

18

that Section 29 of the Civil Code ‘‘must be read together

with Section 196a so as to confer the right of an unbom

child through a guardian ad litem to compel the right to

support conferred by the code.’’ The state has a compelling

interest in the welfare of its children whether born or

unborn which supersedes even constitutional rights of the

parents. Prince v. Massachusetts, 321 U. S. 158, 166, 64

S. Ct. 438, 88 L. ed. 645 (1944) ; State v. Perricone, 37 N. J,

463, 181 A. 2d 751 (1962) cert. denied 371 U. S. 890, 8

Sup. Ct. 189, 9 L. ed. 124 (1962); People ex rel. Wallace vy,

Labrenze, 411 Ill. 618, 104 N. E. 2d 769 (1952).

Historically, the law has recognized the inviolability of

the unborn child by providing for suspension of execution

of pregnant women under death sentence, at least when

‘‘quick.’’? 1 W. Blackstone, Commentaries 456 (W. Jones

ed. at 561, 1916); 2 M. Hale, Pleas of the Crown 413-14

(1st Am. ed. at 412-13, 1847). This solicitude continues in

modern statutes without regard to the state of pregnancy,

e.g. California Penal Code, Secs. 3705-06 (West 1954).

It would be strange if an unborn child had rights to

support from his parents, rights enforceable by a guardian

and sanctioned by the criminal law of neglect, rights even

paramount to constitutional rights of his parents, and yet

have no right to be protected from an abortion. It would

be incongruous that an unborn child should be protected

by the state from wilful harm by a parent when the injury

was inflicted indirectly but not when it was inflicted directly.

In these several ways, then, the law has found a recog-

nizable locus of human rights in the unborn child from

conception. It would be hard to pretend that this con-

vergent development of property, tort, welfare and consti-

tutional law was at the dictate of a hidden and impermis-

sible theological impulse. The legislatures, the judges, the

commentators have responded to what they found in reality

a

19

in the life within the womb. Such sturdy guardians of

secular good sense as Justice Buller and Chief Justice Shaw

did not invent some imaginary being when they said that

the unborn child could have rights of inheritence. Such a

perspicacious moulder of the best modern trends in tort as

Dean Prosser did not indulge in metaphysical fancy when

he found all commentators treating a fetus in the womb

on a par with the mother in the path of an automobile.

That the American approach is not some national aber-

ration is testified to by the action taken by the United

Nations. In 1959 the United Nations adopted a ‘‘Declara-

tion of the Rights of the Child’’ which supplemented the

United Nations’ statement entitled the ‘‘Universal Decla-

ration of Human Rights.’’ One reason for this supple-

mentary declaration was stated in its Preamble as being

because ‘‘the child, by reason of his physical and mental

immaturity, needs special safeguards and care, including

appropriate legal protection, before as well as after

birth,” General Assembly of the United Nations, ‘‘Decla-

ration of the Rights of the Child,” adopted unanimously

in the plenary meeting on November 20, 1959 (Official

Records of the General Assembly, 14th Session, pp. 19-20).

Thus the representatives of most of the nations of the world

recognized that the unborn deserved recognition as chil-

dren and were entitled to legal protection.

If the unborn child can inherit by will and by intestacy,

be the beneficiary of a trust, be tortiously injured, be repre-

sented by a guardian seeking present support from the

parent, be preferred to the religious liberties of the parent,

be protected by the criminal statutes on parental neglect,

4 fortiori’ Congress may guard that unborn child from

intentional extinction.

20

V.

RECOGNIZED) RIGHTS OF MARITAL PRIVACY ARE Nor

INCONSISTrenT WITH THE CONGRESSIONAL PROTE0.

TION OF RoiqguTs OF THE UNBORN.

There is ®an interest of husband and wife to preserve

their conjugég) relations from state interference, Griswold

v. Commectictyt, 381 U. S. 479, 85 Sup. Ct. 1678, 14 L. Ed,

2d 510 (19655), D. C. Code Section 22-201 does not affect

the sexual regjations of husband and wife. Pregnancy does

not interfere, with these relations except under some cir.

cumstances fat jimited times; indeed some women are more

desirous of intercourse in pregnancy, Guttmacher, Prey.

nancy and iBirth, p. 86 (paperback ed. 1960). Control

of abortion djoes not entail state interference with the right

of marital intercourse. Nor does enforcement of the statute

require inVaision of the conjugal bedroom.

Assuming: arguendo, that there are other marital rights

which the sttate must respect, may it then be urged that

one of these rights is the freedom of a married couple

not to have, raise and educate a child they do not want!

Certainly fr-om the viewpoint of both the parents and the

child it is important that the child be wanted. But the

parents’ attitude toward their offspring cannot be made

the single Griterion of that offspring’s right to continue

in existence.,

In this area there has been a gradual evolution of civil-

ized thought, In the Roman Republic the father by virtue

of the patria potestas had the literal power of life or death

over his children, Biondi, La Patria Potestas, Il Diritto

Romano Christiano (1954), Vol. 3, p. 13. ‘‘ Within the family

the paterfamilias enjoyed a lifetime despotism,’’ Budkland

and McNair, Roman Law and Common Law, p. 35 (1936).

In the Roman Empire this freedom to deal with one’s chil-

21

dren as one pleased was limited by the state. Infanticide,

however, was still widely practiced and abortion with the

consent of the father was legal, Noonan, Contraception,

Belknap Press of Harvard U. Press, Cambridge, p. 113

(1965). The basic concept of the law was that a fetus

was ‘“‘a part of the woman,’’ Justinian, Digest 25.4.1.1.

No protection was accorded to this being within the

womb, and the law only guarded the father’s right to

determine this being’s destiny.

It was only as the boundaries of the modern Western

European nations began to be formed that laws were

adopted protecting the fetus. In England, only the ‘‘ani-

mated or formed’? fetus was protected, Bracton, De legibus

et consuetudinibus Angliae 3.2.4, commentators have con-

strued this to mean quickened. 3 Coke Institutes 50 (1648).

It was not until 1803 that English criminal law, following

the judicial lead given in the property cases, safeguarded

the fetus at all stages of existence by a criminal sanction,

43 Geo. III c. 58. In the nineteenth century the American

states followed the English precedent, Bishop, Commen-

taries on the Law of Statutory Crimes, Sec. 746 (2d Ed.

1883). See also Means, The Law of New York Concerning

Abortion, 14 New York L. Forum 411, 419-422 (1968).*

* Coke said that the pregnant woman herself was guilty of a

crime if she aborted a quickened fetus. 3 Coke, Institutes 50

(1648). There is much confusion as to whether or not the crime

was murder. Coke says it was murder if the child be born alive,

and then died. However, if the quickened fetus was stillborn then

Coke called it a great misprison. Some commentators translate

this as a misdemeanor, but penalties were severe even for a great

misprison, e.g. loss of a hand and confusion as to the meaning of

a great misprison at Coke’s time exists. See Holdsworth, History

of English Law, 389 n. 1 (3d ed. 1923). On the other hand,

Hawkins said that abortion in ancient times of a quickened fetus

was murder without regard to the distinction made by Coke as to

whether or not the fetus must be born alive before it dies. Hawkins,

Pleas of the Crown, Vol. 1 p. 121 (1788). Hawkins, among

others, cited Bracton. The California supreme court recently

dealt with this problem (Keeler v. Superior Court of Amador

22

Thus over a period of about 2500 years there has been

built up a defense by the state in behalf of children,

born and unborn, against the aggressive and the pro.

prietary instinets of their progenitors. The problem of

the ‘‘battered ehild’’ today is evidence, if evidence is

needed, that the state must still by law restrain the free.

dom of conduct of parents toward their children, see

County, Doe. 7853 dee. 6-12-70) and decided that the Cali.

fornia legislature meant in 1850 that the fetus must be born

alive, live for a short time, and then die before the act which was

the cause could be termed murder.

Bracton in the thirteenth century said that abortion of a formed

or animated fetus was homicide. Bracton, The Laws and Customs

of England III, ii, 4, Woodbine ed. 1968 p. 341. Plunkett in

Concise History of the Common Law at pp. 444-446 says that in

Bracton’s time if the defenses of misadventure and self-defense

were not present, then there was but one case and that was homi-

cide (which explains why Bracton called abortion of an animated

fetus homicide). The distinction of degrees of homicide, such as

murder and manslaughter, did not occur until well into the fif-

teenth centry.

Lord Ellenborough’s Act, the first English statute on abortion,

cured the confusion by making abortion before quickening a felony

also but with less penalty. For abortion after quickening the

penalty was death; before quickening the penalty was transporta-

tion up to fourteen years, whipping, the pillory, imprisonment,

etc. 43 Geo. 3, C58 (1803). However, abortion laws are as old as

written legal history. See Quay, Justifiable Abortion 49 George-

town Law Review 173 (1961) 395, 399-406. One must not forget

that by 1803 whatever co-extensive jurisdiction the ecclesiastical

courts of England once held in this area had vanished, but none-

theless Bracton’s distinctions between animated and non-animated,

which followed Aristotle, have continued to plague our courts

under the guise of quickened or non-quickened, and more fre

quently today viable or unviable.

Such distinctions built on the uncertain meaning of a single

paragraph of a thirteenth centry Englishman writing in Latin

(Bracton), and misunderstood by a seventeenth century commen-

tator (Coke), cannot do justice to 500 years of early English

common law history on this subject. Bracton, Coke, Hawkins,

Blackstone, et al., based their legal conclusions on the science of

Aristotle, who went medically unchallenged regarding animation

until the sixteenth century. This Court should rely on the science

of today (see Section VII of this brief) rather than the science of

the Fourth Century B. C.

od

Kempe et al., The Battered-Child Syndrome, 181 American

- Medical Association: Journal 17 . (1962).

Prior to the seventeenth century the prevailing doctrine

had been that of Aristotle that 40 days after conception

the fetus underwent a transformation which put him in the

human class. This notion was successfully attacked in 1621

as medical nonsense by Paolo Zacchia in his Quaestiones

Medico-Legales 9.1. Thereafter the medical profession

gradually accepted the view that there was no valid line

to be drawn within the womb, and the law slowly followed

the medical lead.

Today there can scarcely be a return to the Roman

law theory that a parent has absolute dominion over his

offspring or a return to the ancient notion that a fetus is

“part”? of his mother. As we show in Point VII, infra, the

autonomy of the unborn child is established clearly by

modern fetology. In the light of this evolution of legal

thought and medical knowledge, it would indeed be to turn

back the clock to hold that fetal life might be terminated

whenever unwanted by the parents.

A fortiori the same considerations apply to the argument

that a woman has a right to destroy any fetus of her own

that she, in the most literal sense, finds ‘‘unbearable.’’

This contention of a right to an abortion vested in a

woman has, of course, no constitutional precedent, and it

blandly ignores the joint responsibility and interest of

amale partner in any conception. Yet this contention may

be the emotional heart of the almost hysterical attack

_ upon the abortion statutes.

The claim of freedom over one’s body is, of course, a

self-evident right, if it means that a woman should be

free to refuse sexual intercourse or free to practice contra-

ception. A woman is not under the necessity of subjecting

her body to the burden of pregnancy if she chooses either

24

of these alternatives. But the further claim that a woman

is free to destroy the being whom she has conceived by

voluntarily having sexual intercourse makes sense only

if that being can be regarded as part of herself, a part

which she may discard for her own good. But at this

point, the evolution of women’s rights encounters th

evolution favoring the recognition of the fetus as a living

person within the womb, an evolution supported by the

data of science and the precedents of property, torts, con.

stitutional and welfare law.

VI.

THE DISTRICT OF COLUMBIA ABORTION STATUTE Is

NOT UNCONSTITUTIONALLY VAGUE.

The opinion below strikes down as unconstitutionally

vague D. C. Code 22-201’s clause ‘‘. . . necessary for the

preservation of the mother’s life or health . . .’’ although

that has been in the law since 1901, and was re-adopted

in 1953. Reliance below on People v. Belous, 71 Cal. 2d 996,

458 P. 2d 194, 80 Cal. Rep. 354 (1969) rests on a weak reed

indeed.

The Belous majority, in fact, found the new California

standard (‘‘substantial risk that continuance of the preg-

nancy would gravely impair the physical or mental health

of the mother.’’ Cal. Health and Welfare Code 25951 (c)(1))

to be a medical standard ‘‘. . . and the assessment does

not involve considerations beyond medical competence”

(458 P. 2d at 205). The substantial similarity between the

new California standard and the D. C. standard attacked

below indicates that reliance on Belous was misplaced.

The statutory language must be so vague that it fails

to give warning to the particular defendants charged with

crime under the law. ‘‘Vagueness’’ is essentially objec

i

25

tionable because it is unfair. If a given defendant knows

perfectly well that what he is doing under the statute is a

crime, he may be convicted under it, even though some

hypothetical case could be imagined where someone could

genuinely be in doubt about the legality of his conduct.

State of Missouri v. Mucie, ....... Mo. ........ 448 8. W. 2d

979, 886 (1970). This reasoning has recently been applied

in upholding an abortion statute where it was contended

that the statutory exception of ‘awful justification’’ was

vague. State v. Moretti, 52 N. J. 182, 244 A. 2d 499 (1968)

cert, denied 393 U. S. 952 (1968). In general, it may be said

that the persons customarily charged with the crime of

abortion—persons operating secretly in out-of-the-way,

non-hospital locales—are fully aware that their behavior

js condemned by the usual statute. No reputable physician

seems to have been prosecuted for performing an abortion

in a reputable hospital. Lucas, Federal Constitutional Lim-

itations on the Enforcement and Administration of State

Abortion Statutes, infra, f.n. p. 749. To the same effect is the

case of Kudish v. Board of Registration in Medicine, ..........

a , 248 N. E. 2d 264 (1969) where the Supreme

Court of Massachusetts held that the word ‘‘unlawfully’’

in the abortion statute was not vague in light of prior deci-

sions by that Court. Both the Moretti and Kudish cases

were decided about the same time as Belous, but neither

received the wide publicity of that case. It is difficult to

believe that what is comprehensible to ordinary men in

Massachusetts and New Jersey is not comprehensible to

ordinary men in California or the District of Columbia.

26

VI.

THE UNBORN OFFSPRING OF HUMAN PARENTS IS Ay

AUTONOMOUS HUMAN BEING.

Stripped to their essentials, attacks such as that below

are premised on the unarticulated assumption that the u-

born are only ‘‘tissue of the mother’’ and hence disposable

at her will.* The historic need of balancing right against

right is thus banished from contemplation. Rare indeed

are those candid enough to argue that in this modern era,

society must have power to direct life-death decisions,

Such candor would expose too bluntly the threatening

‘‘Brave New World.’’ Instead, the argument is couched in

such euphemistic verbiage as ‘‘terminating pregnancy”’ or

similar sophistry.

But language, however clever, cannot forever conceal

meaning. Human life is a continuum,** and if those at one

end can be exterminated, why not those at the other? All

human life, whether fetal, infant, adolescent, mature or

*See Lucas, Roy, Federal Constitutional Limitations on the

Enforcement and Administration of State Abortion Statutes,

North Carolina L. Rev. 46:730 (1967-68), an article marred by

an opening sentence which indicates the distortion of fact (Lucas

says 10,000 American women a year die from criminal abortions)

with which the abortion controversy is being waged in the United

States. Even those who opt for completely permissive abortion

have agreed (at the Harvard Divinity School International Con-

ference on Abortion) that the maximum number of deaths by

illegal abortion in the United States is 250 to 500 per year

(250 to 500 per year too many we may add, but one should at

least base conclusions upon correct data). Sec The Terrible

Choice: The Abortion Dilemma, Bantam Books, at p. 43 (1968).

**‘‘The program of the [Institute of Child Health and Human

Development] will give major attention to the study of the con-

tinuing process of growth and development that characterize all

biological life—from reproduction to prenatal development

through infancy and childhood and on into the stages of matura-

tion and aging.’’ Senate Report No. 2174, Institute of Child

Health and Human Development (Sept. 27, 1962), Committee on

Labor and Public Welfare.

27

aged, is in the process of becoming. It is our task in the

next subsections to show how clearly and conclusively mod-

ern science—embryology, fetology, genetics, perinatology,

all of biology—establishes the essential humanity of the un-

porn child. We submit that the data not only shows the

constitutionality of the Congressional effort to save the un-

born from indiscriminate extermination, but im fact sug-

gests a duty to do so. We submit also that no physician who

understands this will argue that the law is vague for he

will understand that the law calls upon him to exercise his

art for the benefit of his two patients: mother and child.

As Dr. Liley has said:

‘‘Another medical fallacy that modern obstetrics dis-

cards is the idea that the pregnant woman can be

treated as a patient alone. No problem in fetal health

or disease can any longer be considered in isolation.

At the very least two people are involved, the mother

and her child.’’ Liley, H. M. L, Modern Motherhood,

Random House, Rev. Ed. (1969), p. 207.

A. The Unborn Person Is Also a Patient.*

From conception the child is a complex dynamic rapidly

growing organism. By the end of the first month, the

child completes the period of relatively greatest size in-

crease and the greatest physical change of a lifetime. The

month old child is 10,000 times larger than the fertilized

egg and will increase its weight six billion times by birth

(1)(4). (See Fig. 1.)

By the end of the seventh week, we see a well propor-

tioned small scale baby. In its seventh week, it bears the

familiar external features and all the internal organs of

the adult, even though it is less than an inch long and

*In this section and the section which follows, citations are

according to medical journal practices. The numbers in parenthesis

refer to the correspondingly numbered work in the Bibliography.

28

weighs only 1/30th of an ounce. The body has become

nicely rounded, padded with muscles and covered by a thin

skin. The arms are only as long as printed exclamation

marks, and have hands with fingers and thumbs. The

slower growing legs have recognizable knees, ankles and

toes (2)(4). (See Figs. 2 and 3.)

The new body not only exists, it also functions. The

brain in configuration is already like the adult brain and

sends out impulses that coordinates the function of the

other organs. The brain waves have been noted at 43 days

(3). The heart beats sturdily. The stomach produces di-

gestive juices. The liver manufactures blood cells and the

kidmey begins to function by extracting uric acid from the

child's blood (4)(40). The muscles of the arms and body

can already be set in motion (5).

From this point until adulthood, when full growth is

achieved somewhere between 25 and 27 years, the changes

im the bedy will be mainly in dimension and in gradual re

finement of the working parts (1) (37).

The development of the child, while very rapid, is also

very specific. The genetic pattern set down in the first day

of life instructs the development of a specific anatomy. The

ears are formed by seven weeks and are specific, and may

resemble a family pattern (6). The lines in the hands start

to be engraved by eight weeks and remain a distinctive

feature of the individual (36)(40). (See Fig. 3.)

The primitive skeletal system has completely developed

by the end of six weeks (1)(2). This marks the end of the

child’s embryonic (from Greek, to swell or teem within) pe-

rio? From this point, the child will be called a fetus (Latin,

young one or offspring) (2). (See Fig. 4.)

In the third month, the child becomes very active. By

the end of the month he can kick his legs, turn his feet,

curl and fan his toes, make a fist, move his thumb, bend his

| | a

wrist, turn his head, squint, frown, open his mouth, press

his lips tightly together (5). He can swallow and drinks

the amniotic fluid that surrounds him. Thumb sucking is

first noted at this age. The first respiratory motions move

fuid in and out of his lungs with inhaling and exhaling

respiratory movements (4)(5). (See Fig. 8.)

The movement of the child has been recorded at this

early stage by placing delicate shock recording devices on

the mother’s abdomen and direct observations have been

made by the famous embryologist, Davenport Hooker,

MD. Over the last thirty years, Dr. Hooker has recorded

the movement of the child on film, some as early as six

weeks of age. His films show that pre-natal behavior de-

velops in an orderly progression (5) (7) (8).

The pre-requisites for motion are muscles and nerves.

In the sixth to seventh weeks, nerves and muscles work to-

gether for the first time (1). If the area of the lips, the

first to become sensitive to touch, is gently stroked, the

child responds by bending the upper body to one side and

making a quick backward motion with his arms. This is

called a total pattern response because it involves most of

the body, rather than a local part. Localized and more

appropriate reactions such as swallowing follow in the

third month. By the beginning of the ninth week, the baby

moves spontaneously without being touched. Sometimes

his whole body swings back and forth for a few moments.

By eight and a half weeks the eyelids and the palms of

the hands become sensitive to touch. If the eyelid is

stroked, the child squints. On stroking the palm, the

fingers close into a small fist. (7) (5) (4) (55).

In the ninth and tenth weeks, the child’s activity leaps

ahead. Now if the forehead is touched, he may turn his

head away and pucker up his brow and frown. He now has

full use of his arms and can bend the elbow and wrist in-

dependently. In the same week, the entire body becomes

sensitive to touch. (7) (5) (See Fig. 4.)

The twelfth weeks brings a whole new range of ro.

sponses. The baby can now move his thumb in opposition

to his fingers. He now swallows regularly. He can pull

up his upper lip; the initial step in the development of the

sucking reflex. (33) By the end of the twelfth week, the

quality of muscular response is altered. It is no longer

marionette-like or mechanical—the movements are now

graceful and fluid, as they are in the new born. The child

is active and the reflexes are becoming more vigorous, Ajj

this is before the mother feels any movement. (33) (55)

(See Fig. 5.)

The phenomenon of ‘‘quickening’’ reflects maternal sen-

sitivity and not fetal competence.* Dr. Hooker states that

fetal activity occurs at a very early age normally in utero

and some women may feel it as early as thirteen weeks,

Others feel very little as late as twenty weeks and some

are always anxious because they do not perceive movement,

(7)

31

Dr. Liley sta

‘‘Historicabtes :

the time whly ‘quickening’ was supposed to delineate

being posshen the fetus became an independent human

that while sessed of a soul. Now, however, we know

motions fel he may have been too small to make his

long before: the unborn baby is active and independent

ternal sens, his mother feels him. Quickening is a ma-

the positio. tivity and depends on the mother’s own fat,

of the unbc,, of the placenta and the size and strength

Every child eorn child.” (33 at pp. 37, 38)

by the end of tzhows a distinct individuality in his behavior

structure of ththe third month. This is because the actual

alignment of the muscles varies from baby to baby. The

an inherited P&he muscles of the face, for example, follow

- — mont stern. The facial expressions of the baby in

sions of his P&th are already similar to the facial expres-

Dr. Arnold (arents. (4) (3) (40) (See Fig. 5)

= go vot eel states that: ‘‘By the end of the first

paychic attribr" week) the fetus is a sentient moving being.

of his psycho- pause to speculate as to the nature of his

tes but we may assert that the organization

at p. 65.) es : ,

Farther ref? somatic self is now well under way.’’ (40

fingernails app

His eyes, previnements are noted in the third month. The

The eyelids cl’Pear. The child’s face becomes much prettier.

apparent in pviously far apart, now move closer together.

primitive eggslose over the eyes. Sexual differentiation is

completed. I:both internal and external sex organs, and

sound; the chits and sperm are formed. The vocal cords are

capable of cryIn the absence of air they cannot produce

Dr. Liley reild cannot cry aloud until birth, although he is

anair bubble i7ying long before. (1) (4) (2) (33).

sac in an atteelates the experience of a doctor who injected

, into an unborn baby’s (eight months) amniotic

tempt to locate the placenta on x-ray. It so

32

happened that the air bubble covered the unborn baby’;

face. The moment the unborn child had air to inhale, his

vocal cords became operative and his crying became andible

to all present including the physician and technical help,

The mother telephoned the doctor later to report that whep.

ever she lay down to sleep, the air bubble got over the

unborn baby’s face and he was crying so loudly he wa

keeping both her and her husband awake (33 at p. 50).

The taste buds and salivary glands develop in this

month, as do the digestive glands in the stomach. When

the baby swallows amniotic fluid, its contents are utilized

by the child. The child starts to urinate. (1) (4) (2).

From the twelfth to the sixteenth week, the child grows

very rapidly. (41) His weight increases six times, and

he grows to eight to ten inches in height. For this in

credible growth spurt the child needs oxygen and food.

This he receives from his mother through the placental

attachment—much like he receives food from her after he

is born. His dependence does not end with expulsion into

the external environment. (1) (2) (4). We now know that

the placenta belongs to the baby not the mother as was

long thought. (33) (See Fig. 6).

In the fifth month, the baby gains two inches in height

and ten ounces in weight. By the end of the month he

will be about one foot tall and will weigh one pound. Fine

baby hair begins to grow on his eyebrows and on his head

and a fringe of eyelashes appear. Most of the skeleton

hardens. The baby’s muscles become much stronger, and

as the child becomes larger, his mother finally perceives

his many activities. (1) The child’s mother comes to

recognize the movement and can feel the baby’s head, arms

and legs. She may even perceive a rhythmic jolting move-

ment—fifteen to thirty per minute. This is due to the

child hiccoughing. (4) The doctor can now hear the heart

beat with his stethoscope. (1) (4) (See Figs. 8, 9).

33

The baby sleeps and wakes just as it will after birth.

(4) When he sleeps he invariably settles into his favorite

position called his ‘‘lie.”? Each baby has a characteristic

lie, When he awakens he moves about freely in the bouyant

fuid turning from side to side, and frequently head over

heel. Sometimes his head will be up and sometimes it will

te down. He may sometimes be aroused from sleep by

external vibrations. He may wake up from a loud tap on

the tub when his mother is taking a bath. A loud concert

or the vibrations of a washing machine may also stir him

into activity. (4) The child hears and recognizes his

mother’s voice before birth. (9) (10) Movements of the

mother whether locomotive cardiac or respiratory are com-

municated to the child. (9)

In the sixth month, the baby will grow about two more

inches, to become fourteen inches tall. He will also begin

to accumulate a little fat under his skin and will increase

his weight to a pound and three-quarters. This month the

- permanent teeth buds come in high in the gums behind the

milk teeth. Now his closed eyelids will open and close, and

his eyes look up, down and sideways. Dr. Liley of New

Jealand feels that the child may perceive light through the

abdominal wall. (10) Dr. Still has noted that electro-

encephalographic waves have been obtained in forty-three

to forty-five day old fetuses, and so conscious experience

is possible after this date. (3)

In the sixth month, the child develops a strong muscular

grip with his hands. He also starts to breathe regularly

and can maintain respiratory response for twenty-four

hours if born prematurely. He may even have a slim

chance of surviving in an incubator. The youngest chil-

dren known to survive were between twenty to twenty-five

weeks old. (4) The concept of viability is not a static one.

Dr. Andre Hellegers of Georgetown University states that

34

10% of children born between twenty weeks and twenty.

four week: gestation will survive (35 A and 35 B). Mod

ern medical intensive therapy has salvaged many children J

that woull have been considered non viable only a fey

years ago. The concept of an artificial placenta may bes

reality in she near future and will push the date of viability

back even further and perhaps to the earliest stages of

gestation. (34) (39) After 24 to 28 weeks the child’s

chances oj 8urvival are much greater.

Our revew has covered the first six months of life. By

this time, the individuality of this human being is clear

to all untiased observers. Dr. Arnold Gesell has said:

‘¢‘Qur Own repeated observation of a large group of

feta] ‘nfants [an individual born and living at any

time }Tior to 40 weeks gestation] left us with no doubt

that yeychologically they were individuals. Just as

no tw’ looked alike, so no two behaved precisely alike,

One 788 impassive when another was alert. Even

amon; the youngest there were discernable differences

in viidness, reactivity and responsiveness. These

were ;enuine individual differences, already prophetic

of th, diversity which distinguishes the human fam.

ily.’’ (40 at p. 172)

B. TY Doctor Treats the Unborn Just as he Does

Any Patient.

When @@ views the present state of medical science,

we find tt the artificial distinction between born and

unborn hé Vanished. As Dr. Liley says:

“In ssessing fetal health, the doctor now watches

2s in maternal function very carefully, for he

has ]2rned that it is actually the mother who iss

-e carrier, while the fetus is very largely in

charg of the pregnancy.’’ (33 at p. 202) (56)

35

The new specialty of fetology is being replaced by a newer

specialty called perinatology which cares for its patients

from conception to about one year of extrauterine existence.

(41) The Cumulative Index Medicus for 1969 contains

over 1400 separate articles in fetology. For the physician,

the life process is a continuous one, and observation of the

patient must start at the earliest period of life. (See 42

U.S. C. 289(d))

A large number of sophisticated tools have been developed

that now allow the physician to observe and measure the

child’s reactions from as early as ten weeks. At ten weeks

it is possible to obtain the electrocardiogram of the unborn

child. (12) At this stage also the heart sounds can be

detected with new ultrasonic techniques. (45) The heart

has already been pumping large volumes of blood to the

fast growing child for six weeks. With present day

technology, the heart of the child is now monitored during

critical periods of the pregnancy by special electronic

devices, including radiotelemetry. (13) (51) Computer

analysis of the child’s ECG has been devised and promises

more accurate monitoring and evaluation of fetal distress.

(14) A number of abnormal electrocardiographic patterns

have been found before birth. These patterns forewarn

the physician of trouble after delivery. (48) (49) (53)

Analysis of heart sounds through phonocardiography is

also being done. (15) (44)

With the new optical equipment, a physician can now

look at the amniotic fluid through the cervical canal and

predict life-threatening problems that are reflected by a

change in the fiuid’s color and turbidity. (16) (17 ) In the

future, the physician will undoubtedly be able to look di-

rectly at the growing child using new fiber optic devices

(through a small puncture in the uterus) and thereby

diagnose and prescribe specific treatment to heal or prevent

illness or deformity. (11) (46)

For the child with severe anemia, the physician now gives

blood, using an unusual technique developed by Dr, 4

Liley of New Zealand. This life saving measure is carried

out by using new image intensifier x-ray equipment. 4

needle is placed through the abdominal wall of the mother

and into the abdominal cavity of the child. For this pro.

cedure the child must be sedated (via maternal circulation)

and given pain relieving medication, since it experiences

pain from the puncture and would move away from the

needle if not premedicated. As Dr. H. M. I. Liley states;

‘‘When doctors first began invading the sanctuary of

the womb, they did not know that the unborn baby

would react to pain in the same fashion as a child

would. But they soon learned that he would. By no

means a ‘vegetable’ as he has so often been pictured,

the unborn knows perfectly well when he has been hurt,

and he will protest it just as violently as would a baby

lying in a crib.”? (33 at p. 50)

The gastro-intestinal tract of the child is outlined by s

contrast media that was previously placed in the amniotic

fluid and then swallowed by the child. (43) We know that

the child starts to swallow as early as fourteen weeks. (33)

Some children fail to get adequate nutrition when in

utero. This problem can be predicted by measuring the

amount of estradiol in the urine of the mother and the

amount of PSP excreted after it is injected into the child.

(19) Recent work indicates that these nutritional problems

may be solved by feeding the child more directly by intro-

ducing nutrients into the amniotic fluid which the child

normally swallows (250 to 700 cc a day). In a sense, we

well may be able to offer the child that is starving because

of a placental defect a nipple to use before birth. (20)

The amniotic fluid surrounding the unborn child offers

the physician a convenient and assessable fluid that he can

now test in order to diagnose a long list of diseases, just

37

sshe tests the urine and blood of his adult patients. The

doctor observes the color and volume of amniotic fluid and

tests it for cellular element enzymes and other chemicals.

He can tell the sex of his patient and gets a more precise

idea of the exact age of the child from this fluid. He can

diagnose conditions such as the adrenogenital syndrome,

hemolytic anemia, adrenal insufficiency, congenital hyper-

anemia and glycogen storage disease. Some of these, and

hopefully in the future, all of these can be treated before

birth. (21) (22) (23) (24) (25) (26) (27)

At the time of labor, the child’s blood can be obtained

from scalp veins and the exact chemical balance determined

tefore birth. These determinations have saved many chil-

dren who would not have been considered in need of therapy

had these tests not been done. (28) (29) The fetal EEG

has also been monitored during delivery. (52)

A great deal of work has been done to elucidate the

endocrinology of the unborn child. Growth hormone is

elaborated by the child at seventy-one days and ACTH has

heen isolated at eleven weeks gestation. (30) The thyroid

gland has been shown to function at ten and a half weeks

(42), and the adrenal glands also at about this age. (30)

The sex hormones—estrogen and andiogen—are also found

gs early as nine weeks. (30)

Surgical procedures performed on the unborn child are

few. However, surgical cannulation of the blood vessels in

an extremity of the child has been carried out in order

to administer blood. Techniques are now being developed

om animals that will be applicable to human problems in-

volving the unborn child. Fetal surgery is now a reality

in the animal laboratory, and will soon offer help to unborn

patients. (18) (31) (32)

The whole thrust of medicine is in support of the notion

that the child in its mother is a distinct individual in need

38

of the most diligent study and care, and that he is also,

patient whom science and medicine treats just as it does

any other person. (11) (33)

This review of the current medical status of the unbor,

serves us several purposes. Firstly, it shows conclusively

the humanity of the fetus by showing that human life is

a continuum which commences in the womb. There is no

magic in birth. The child is as much a child in those several

days before birth as he is those several days after. The

maturation process, commenced in the womb, continnes

through the post-natal period, infancy, adolescence, matur.

ity and old age. Dr. Arnold Gesell points out in his famous

book that no king ever had any other beginning than have

had all of us in our mother’s womb. (40) Who among us

would assume the awesome power of life and death over

these little ones that the trial court below has by its opin-

ion left to the whim—even the sacred sorrows—of the

mother?

Secondly, we have proven that quickening is a relative

concept which depends upon the sensitivity of the mother,

the position of the placenta, and the size of the child. At

the common law, the fetus was considered not to be alive

before quickening* and therefore we can understand why

commentators like Bracton and Coke placed so much’ em-

phasis on animation and quickening. But modern science

has proven conclusively that any law based upon quicken-

ing is based upon shifting sands—a subjective standard

even different among races. We now know that life pre

ceeds quickening; that quickening is nothing other than

*See 4 Blackstone, Commentaries on the Laws of Englend,

394-95 (1769) where it is said:

‘In ease this plea is made in stay of execution, the judge

must direct a jury of twelve matrons or discreet women

inquire the fact, and if they bring in their verdict ‘quick

with child’ (for barely, ‘with child,’ unless it be alive in the

womb, is not sufficient, ... ).’’

39

the mother’s first subjective feeling of movement in the

yomb. Yet the fetus we know has moved before this. In

gite of these advances in medicine, some court and legis-

istures have continued to consider quickening as the point

vhen life is magically infused into the unborn. (See

Babbite v. Mc Cann, U. 8. D. C. Ed. Wis. #69-C-548). No

concept could be further from the scientific truth.

Thirdly, we have seen that viability is also a flexible

standard which changes with the advance of these new medi-

al disciplines some of which are hard'y a half dozen years

od. New studies in artificial placentas indicate that vi-

ability will become an even more relative concept and

children will survive outside of the womb at even earlier

ages than the 20-28 weeks in the past. Fetology, and

perinatology are only a few years old as specialties. Ob-

stetrics is only sixty years old as a specialty. (33)

Fourthly, we have seen that the unborn child is as much

a patient as is the mother. This most important but simple

trath is not recognized in the trial court’s opinion. In

fact, in all the literature one reads opting for permissive

abortion, this simple truth is ignored. There are many

doctors in this nation who know that the unborn is also

their patient and that they must exercise their art for the

benefit of both mother and child. How then will they

respond to a request for abortion on the most permissive

grounds? How will they respond to a demand on the most

permissive grounds? What is the next step? Must they

respond to a law suit compelling them to perform an abor-

tint When the physician accepts that he has two patients

he will have no difficulty in the exercise of his art for the

benefit of child and mother. He will not find the liberal

standard (necessary to preserve the life or health of the

mother) to be vague because he will take the life of the

child only for grave reasons even under this liberal stand-

ard.

40

This standard is not vague because that is the self san,

standard by which the doctor judges every act of his art

What doctor gives any medical treatment unless neges.

sary to preserve life or health? Then what is the

or the vagueness about the standard when applied to pre.

serve the life of the child? Certainly there is nothing

vague about dispensing an aspirin for a headache or peni-

cillin for infection. The doctor dispenses them to his

patients when it is necessary to preserve their life or health

Then what is so vague about this one area—the most im.

portant area—where the action of the doctor means the

weighing of one life over another? Every doctor practicing

can tell this court when in his medical judgment an abortion

is necessary to preserve life or health. There is no medical

mystery on that point. A review of the relevant Obstetrics

texts will list the indications—psychiatric as well—for

therapeutic abortion.* When the doctor makes the decision

*See Quay, Justifiable Abortion, 49 Georgetown Law Journal

173, 1960, pp. 180-241 where the medical reasons for j

abortions as stated in the standard obstetric works from 1903 to

1960 are stated and analyzed.

Dr. Guttmacher has stated :

‘**On the whole, the over-all frequency of therapeutic abortion

is on the decline. This is due to two facts: first, curs

have been discovered for a number of conditions which

previously could be cured only by termination of pregnaney;

and second, there has been a change in medical philosophy.

Two decades ago, the accepted attitude of the physician was

that, if a pregnant woman were ill, the thing to do would be

to rid her of her pregnancy. Today, it is felt that unles

the pregnancy itself intensifies the illness, nothing is accou-

plished by the abortion.’’ (57 at p. 13) See also (58)

Dr. Guttmacher has also said:

‘‘Today it is possible for almost any patient to be brought

through pregnancy alive, unless she suffers from a fatal illnes

such as cancer or lukemia and if so, abortion would be unlikely

to prolong, much less save life.’’ (59 at p. 9)

Dr. Guttmacher has also said :

‘‘There is little evidence that pregnancy in itself worse

a psychosis, either intensifying it or rendering prognosis for

full recovery less likely.’’ (60 at p. 121)

41

he must not consider the unborn as ‘‘mere tissue of the

nother”? or he will certainly weigh it no more in the

talance than any other replaceable tissue of the mother.

iss anyone ever considered the standard vague by which

4 surgeon removes a cancerous breast? Yet isn’t the

dandard exactly the same? The surgeon removes the

cancerous breast to save the life or health of the mother.

How much more important is that standard when applied

to save the life of the child. Congress spoke and said that

uder some circumstances, it may be necessary to take the

life of the child, but it may not be done unless necessary to

preserve the life or health of the mother. The life of the

child may not even under this liberal standard be taken

except for grave reasons.

This amicus is guardian ad litem for the class of all un-

born children in Illinois. A holding that Congress is

powerless to provide any protection for the unborn children

of the District of Columbia would have dire precedential

consequences for those this amicus represents.

But Congress has the necessary power and has validly

exercised it. The judgment below should be reversed.

Respectfully submitted,

Dennis J. Horan,

Jerome A. Frazex, JR.,

Tomas M. CrisHam,

Dotornes B. Horay,

Attorneys for Dr. Bart Heffernan.

Dav W. Lovise.i,

Of Counsel.

10.

11.

12.

13.

42

MEDICAL BIBLIOGRAPHY.

Arey, Leslie B.: DeveLopmzentaL ANaTomy, 6th Ed.

Philadelphia W. B. Saunders Co. 1954 Chap. IT VI.

Patten, Bradley M.: Human Empryo.ocy, 3rd Bi

McGraw-Hill Book Co. NY 1968 Chap. VII.

Still, J. W.: J. Washington Acad. Sci. 59: 46 1969,

Flannagan, G. L.: Toe Fist Nine Monrus or Lr,

Simon and Schuster 1962.

Hooker, Davenport: THe Prenatat Oricin or Be.

Havior, Univ. of Kansas Press 1952.

Streeter, Geo. L.: DevELopMENT oF THE AvRICLE mW

THE Human Emsryro, Contributions to Embryology

Vol. XIII No61 1921.

Hooker, Davenport: Earty Human Feta, Benaviog

Wirs a Preuiminary Notre on Dovsie Smuttanegous

Feta, Srimvunation, Proceedings of the Association

for Research in Nervous and Mental Disease, Balti-

more, The Williams & Wilkins Co, 1954.

Gesell, Arnold, M. D., Amatruda, C. S., M. D. : Dever

OPMENTAL Diacnosis, P. S. Hoeber 1958 pp. 8-9.

Wood, Carl: Weicutiessness: Its Impuications ror

THE Human Fervs. J. Obstetrics & Gynecology of the

British Commonwealth. Arr 1970 Vol. 77 pp. 333-36.

Liley, Albert W.: Aucktanp MD ro Measure Licar

anp Sounp Insme Urervus, Medical Tribune Report

May 26, 1969.

Ferotocy: Tae Smaiuest Patients. THe Sciences,

published by The New York Academy of Sciences Vol.

8 No. 10 Oct. 1968.

de Smoler, Dr. Paulina Eisenberg: Frtat Heart Ac

tivity Is Recorpep Rovutine.y sy 10TH Weex or Ls,

Medical Tribune Feb. 2, 1970.

Neuman, M. R.: Aw InrravacrnaL Ferat Eco Texem-

etry System, Obstetrics and Gynecology, Vol. 35 No, 1

Jan. 1970.

14.

15.

16.

17.

18.

43

Curran, J. T.: A Pracrican System or Fetat Eae

Anatysis By Computer, J. Physiology 203 July 1969.

Massorrio, M.: PHoNnocarpioGRAPHY IN THE D1aGNosis

or Ferau Distress, Archivio Per Le Scienze Mediche

U 125 Dec. 1968 pp. 860-65.

Henry, G. R.: Tue Rote or Amnioscory In THE Pne-

vention oF Ante Partum Hypoxia or THE Fetus, J.

Obstet. Gynec. British Commonwealth 76: 790-4 Sept.

1969.

Rieppi, G., Cargnello, U.: Amwioscopy in THE Duc-

nosis OF Frerat Distress, Friuli Medico (Udine) V 23

Nov.-Dec. 1968.

INTRAUTERINE TRANSFUSION AND ERytoro Buastosis

Ferauis, Report of 53rd Ross Conference on Pediatric

Research Sept. 1966.

Kimura, C., Yamaguchi, R.: Curicat SicNniFIcaNnce

or THE Feta DSP Test, Tohoku J. Exp. Med. 1969

99: 165-170.

Sevilla, Rafael M.: Oran Feepine or Human Fervs:

a Posstsruity, Jama May 4, 1970 P. 713-17.

. Horger, E. O. III M. D., Hutchinson, D. L. M. D.:

Duenostic Use or Amniotic Fium, J. of Pediatrics

Vol. 75 No. 3 pp. 503-508.

Floyd, Wm. S. M. D., Goodman, Paul A. M. D., Wilson,

A. CT: Amniotic Fium Firrration anp Cyto.oey,

Obstetrics and Gynecology Vol. 34 No. 4 Oct. 1969.

Szijarto, di Antonino: Mopgern Diaenostic Crireria

or Feta, Surrerine, Fracestoro Vol. 61 914-30 Nov.-

Dec. 1968.

Parmley, Tim, M. D., Miller, Eugenia: Ferran Ma-

TURITY AND AMNIoTIC Ftum Anatysis, Am. J. Obstet.

and Gynec, Vol. 105 No. 3 pp. 354-62.

Berman, Peter, M. D., Balis, M. E., Ph. D., Dancis, J.

M. D.: A Mersop ror THe PrenataL DucNosis or

ConcenrraL Hyperuricemu, J. of Pediatrics Vol. 75

No. 3 Sept. 1969.

O'Doherty, N.: Prewatan Treatment or Aprenat In-

surricrency, The Lancet No. 29, 1969 2: 1194-5.

31.

32.

35.

4.

Nadler, H. L., M. D.: Paenarau Derecrion or Gexeng

Derects, J. of Pediatrics Jan. 1969 Vol. 74 No. 1 pp.

132-143.

Wood, Carl, FRCS; Newman, Warwick; Lumley,

Judith; Hammond, J udith: ChassrFication™ OF Fan

Heart Rare 1x Reation to Ferat Scare Brow

MEasSUREMENTS AND Apaak Score, Am. J. Obstet. and

Gynec. Vol. 105 No. 6 Nov. 1969 pp. 942-48.

Kubli, F. W., M. D., et al.: Oxsservations on Heusgr

Rate anp PH iw tHe Human Fetus During

Am. J. Obstet. and Gynec. Vol. 104 No. 8 Aug. 15, 1969

pp. 1190-1206.

Abramovich, D. R., MB MRCOG: Tue Importane

or Fetrat PHysioLocy anpD ENDOCRINOLOGY IN Osster.

rics, The Med. Journal of Australia 2: 408-11 23 Ang.

1969.

Jackson, Ben J., M. D.: Approacu to Feta Researcg

—PRreEsENT and Future, Am. J. Diseases of Children

Vol. 118 Dec. 1969 pp. 812-816.

Hodari, A. A., Thomas Lorna BA: Expermenta,

Sureican Procepures Uron tHe Fetus in Ossteraic

Resgarcx, Obstet. and Gynec. Vol. 34 No. 2 Aug. 1969.

Liley, H. M. I.: Mopzrn Moruernoop, Random House

Rev. Ed. 1969.

Zapol, Warren, M. D., Kolobow, Theodore, M. D.:

Mepicat Wortp News, May 30, 1969.

a) Monroe, Canapian Mepican AssociaTion’s JOURNAL

1939.

b) Andre Helligers, M. D., Nationaz Symposium ox

AxsortTion, May 15, 1970, Prudential Plaza Andi-

torium, Chicago.

Miller, James R., Ph.D.: Dermat Rivce Parrerns:

TecHNIQUE FoR THER Stupy in Human Fervses, J.

Pediatric Vol. 73 No. 4 Oct. 1968 pp. 614-16.

. Potter, Edith, M. D. Ph.D.: Parsotocy or tHe Fervs

anp Inrant, Year Book Publishers Inc. Chicago 1961.

Donald Ian, M. D.: Sonar as a Mernop or Srupyie

Prenatal DevELOPMENT, J. of Pediatrics Vol. 75 No. 2

Aug. 1969 pp. 326-333.

47.

4o

Alexander, D. P. Britton, H. G. Nixon D. A.: Mary-

qenance OF SHEEP F'erusEs BY AN Extra CoRoBEAL

ror Pzriops Ur to 24 Hours, Am. J. Obstet.

and Gynec. Vol. 102 No. 7 Dec. 1968 pp. 969-75.

Gesell, Arnold: Taz Empryo.ocy or Benavior, Harper

& Bros. Publishers 1945 Chapt. IV, V, VI, X.

Hellman LM. MD. et al.: GrowTH AND DEVELOPMENT

or THE Human Fetus Priok To THE 20TH WEEK OF

Gestation, Am. J. Obstet. and Gynec. Vol. 103 No. 6

Mar. 15, 1969 pp. 789-300.

Shepard, Thomas: ONsET OF Function in THE Frau

Tuyrom: BiocHEMICAL aND AUTO RapiocraPHic Stup-

ms From Oncan Cuurure, J. Clin. Endocrinology

97 945-58 Jul. 1967.

Pritthard, Jack A., M. D., F. A. COG: Ferrat Swat-

towine AND Amniotic FLUID Votume, Obstet. and

Gynec. Vol. 28 No. 5 Nov. 1966.

Huntingford P. J., Pendleton H. J.: Te Criinican

AppLicaTION OF CARDIOTOCOGRAPHY, J. Obstet. and

Gynec. Brit. Commonwealth Vol. 76 pp. 586-595 July,

1969.

Barton, John J.: EvaLuaTion OF THE Doprier SHIFT

Principle as A Diacnostic Ap IN Ossterrics, Am. J.

Obstet, and Gynec. Vol. 102 No. 4 pp. 563-570 Oct. 1968.

Mori, et al.: Tae OnicinaL Propuction oF THE GLass

Fer Hysteroscope aNp a Srupy OF INTRAUTERINE

OpsERVATION OF THE Human FETUs AND THE INNER

Tancs ATTACHED TO THE FETUS AND Inver SDE OF THE

Urervs Watt tn Late PREGNANCY AND THE BEGINNING

or Detivery By Means oF HysTEROSCOPY AND Its Re-

corpinc on Fuum, J. Jap. Obstet. and Gynec. Society

(Eng.) 15:87-95 Apr. 1968.

Gairdner, Douglas: Ferran Mepicine: Wuo Is to

Practice Ir, J. Obstet. and Gynec. Brit. Commonwealth

75 :1223-24 Dec. 1968.

Silber, David L., Durnin, Robert E.: INTRAUTERINE

Arruat Tacuycarp1a, Am, J. Diseases of Children, Vol.

117 pp. 722-26 June, 1969.

49.

51.

52.

58.

59.

46

Blumenthal, S. et al.: Concrnrra, Ara. Fir:

A Reporr or a Case Documenrep By InTravreem

ExecrrooarpiocraM, Pediatrics, 41:659-61 Mar. 1s

Nielsen, J. S. et al.: Forran Eu APHIc

Srupres or Canpiac ARRHYTHMIAS AND THE = Huse an

Acta. Obstet. and Gynec. Scan 47 :247-256 1968, ihe

InseRTED INTRAUTERINE TRANSMITTER FOR SURI

MENT OF FetaL Heart Rare, Med. Brol. Engr. ce

‘hen Mortimer G., M. D.: Ferau Exacrsandiiie,

LoGRaAPHIC STuDIEs OF THE PLACENTAL TRANSFER @

THIOPENTAL aND Eruer, Obstet. and Gynec. Vol, »

No. 4 Oct. 1967.

Cameron, M. D.: Ferat Execrro Cuneenesiidiall A

Srupy or THE Lrrerature, Developmental Medicine and

Child Neurology 9:329-37 June, 1967 (61 ref.).

Petre-Quadens, O. et al.: Sitezp 1x Precwancy: Ey.

DENCE OF Feta Sieep CHaracteristics, J. Neurologic

Science, 4:600-5 May, June, 1967.

. Hooker, Davenport: Tae Onicrn or Overt Benavwn,

Ann Arbor, Univ. of Michigan Press 1944.

Turnbull, A. C., Anderson, Anne B., PosTaRADUuats

MEDIcaL J OUERNAL, Jan. 1969 45, 65-67. 2

Guttmacher, Alan F.: Tue Suemxine Inpicatiom

rok THerapeutic AsortTion, In Harold Rosen (ed)

Therapeutic Abortion New York, The Julian i

1954.

J. G. Moore and J. H. Randall: Trenps m Tam

peutic Asortion: A Review or 137 Cases, Ami 4

Obstet. and Gynec. 63 Jan. 1952 pp. 28-40.

Guttmacher, Alan F.: Anortion—YEsTERDAy, Toni ge

Tomorrow in Alan F. Guttmacher (ed) The Cases for

Legalized Abortion Now Berkeley: Diablo Press 197.

Guttmacher, Alan F.: THerapzutic Axsortioy: Tm

Doctor’s Dmemma, J. of the Mt. Sinai Hospital a1

(1954-55).

Fig. 2: Age—6 weeks

Fig. 3: Age—8-9 weeks

Fig. 5: Age—i11 weeks

Fig. 6: Age—16 weeks

syoom gT—osy :g ‘3tz

APPENDIX A.

In Tue Unitep States District Court.

For The Northern District Of Illinois,

Eastern Division.

Janz Doz and Sauty Ror, suing,

on behalf of themselves and all

others similarly situated and

Davy N. Dawnvortn, M.D.,

Cuantes Fietps, M.D., Raven

M. Wynn, M.D., Faepenicx P.

Zuspan, M.D., suing on behalf

of themselves and all others | No. 70 C 395

similarly situated, r J ury Demanded.

Plaintiffs,

v8.

Wuiusm J. Scort, Attorney Gen-

eral of the State of Illinois, and

Epwarp V. Hawnranan, State’s

Attorney of Cook County, Illinois,

Defendants. J

PETITION OF DR. BART HEFFERNAN

TO INTERVENE.

Now comes Dr. Bart Heffernan, who respectfully re-

quests this Court for leave to intervene on behalf of Baby

Boy Doe and Baby Girl Roe, who are conceived but un-

born, and on behalf of all unborn children who seek,

through this intervention, the fundamental right of all

A2

mankind—due process of law for the preservation of

human life—and says unto the Court as follows:

1, Plaintiffs have filed a class action seeking a de.

claratory judgment from a three-judge court that the

abortion statutes of the State of Illinois are unconstity.

tional and void.

2. The plaintiffs describe themselves as representa.

tives of that class of citizens in the State of Illinois, who,

because of the abortion statute, must bear unwanted chil.

dren or seek abortions in foreign nations or states. Plain.

tiff physicians have described themselves as representing

a class of physicians licensed in the State of Illinois and

practicing in the area of obstetrics and gynecology,

3. The defendants named are the Attorney General of

the State of Illinois and the State’s Attorney of Cook

County, Illinois, those charged with the duty to uphold

the statutes of the State of Illinois in such a declaratory

judgment as this.

4, However, there is another class of individuals inti-

mately concerned with the outcome of this suit: children

unborn, who, if the abortion law is vitiated, will have no

due process of law for the preservation of life, but must

depend upon the magniminity and personal convenience

of their parents as to whether or not they will in fact

exercise the most fundamental civil right of all persons:

the right to life as is guaranteed by the United States

Constitution, the Constitution of the State of Illinois, the

United Nations Charter, the Charter of the World Health

Organization and the Universal Declaration of Human

Rights of the United Nations, which states:

‘‘Article 3—Everyone has the right to life, liberty

and security of person.’’ U. N. General Assembly,

2nd Session, Doc. A/811.

A3

5, Your intervenors are unborn children who will be

adversely affected by the abolition of the abortion statute

in that their lives may be taken from them without due

process of law and without the equal protection of the

laws as guaranteed, both by the United States Constitution

and the Constitution of the State of Illinois.

6. There is no party presently appearing in this case

who adequately represents the class of individuals that

your intervenor seeks to represent here. One plaintiff

states that she has an unwanted child while the other

indicates that she terminated the life of her unborn child

for reasons which she does not state in her Complaint.

Plaintiff physicians, nowhere in their Petition, mention

the rights of the unborn child, but talk only of the rights

of the mother and of the stresses of their practice. The

defendants, Attorney General and State’s Attorney, are

charged with statutory obligations to uphold the law and

to represent the community as a whole in this action. No

party represents the unborn child per se and no party

presently appearing in this case will present a vigorous

case on behalf of the class of unborn children which your

intervenor seeks to represent in this litigation.

7. The number of members of this class, which your

intervenor seeks to represent in this litigation, is large

and joinder of all members is impractical and impossible.

There are questions of law and fact which will determine

the rights of every member of this class and most im-

portantly, will determine the right to life of every member

of this class. The claim of the intervenor is the claim

of due process under law for the preservation of life and

is not only a typical claim of each member of this class,

but is the fundamental claim of all human life. Your

intervenor will fairly, adequately and aggressively protect

the interests of each member of this class and your

a——_—_— eee

A4

petitioner, therefore, requests appointment as Guardian

Ad Litem for and on behalf of this class.

8. The class of unborn children will be irre

injured if intervention is not allowed by this Court singe

the right to life of each member of the intervening class

would be henceforth determined by persons uncontrolled

by law and the unborn child would thus be deprived of

life without due process or the equal protection of the law,

as guaranteed to it by the United States Constitution, the

Illinois Constitution and the other expressions of mankind

cited previously.

9. Bart Heffernan, M.D. resides at 608 Laurel in

Wilmette, Illinois. He is a registered and licensed physi-

cian and surgeon in the State of Illinois and is Board

Certified in Internal Medicine. He is Director of the

Galvin Heart Center at St. Francis Hospital and Chief

of the Department of Medicine at St. Francis Hospital

in Evanston, Dlinois. He is a member of the American

Medical Association, the Chicago Medical Society and the

Illinois State Medical Society. He is Assistant Clinical

Professor, Department of Medicine, Stritch School of

Medicine. He is a member of the American Society of

Internal Medicine. He is highly qualified and responsible;

he will adequately and aggressively represent this class.

Baby Boy Doe and Baby Girl Roe are actual existing

unborn children.

10. Your intervenor asks leave to file herewith a Motion

to Dismiss the Complaint for Declaratory Relief.

11. Your intervenor also requests this Court to grant

him leave to file within ten days a Brief in opposition to

plaintiffs’ Motion to Convene a Three-Judge Court, a

Brief in support of intervenor’s Motion to Dismiss and a

Brief in support of this Petition to Intervene.

WHEREFORE, your intervenor respectfully requests this

—

A5

Court to enter an Order appointing Dr. Bart Heffernan

gs Guardian Ad Litem for the class of unborn children

gescribed herein and allowing him to intervene in this

litigation in behalf of Baby Boy Doe and Baby Girl Roe

and on behalf of all unborn children similarly situated

and for such other relief as this Court may deem appro-

priate.

Respectfully submitted.

/s/ Dennis J. Horan,

Dennis J. Horan

/s/ Tuomas M. CrisHam,

Thomas M. Crisham

/s/ Jezome A. FRAZEL,

Jerome A. Frazel

Attorneys for Dr. Bart Heffernan,

One North La Salle Street

Chicago, Illinois 60602

Financial 6-5800

A6

APPENDIX B.

In Tue Unrrep States District Covurr

For The Northern District Of Ilinois,

Eastern Division.

JaNE Dor and Sautty Rog, e# al.,)

Plaintiffs,

vs.

Wuuum J. Scorr, Attorney Gen- ia 70 C 395

eral of the State of MIllinois,

et al.,

Defendants. J

ORDER.

This cause coming on to be heard on motion of Dr, Bart |

Heffernan for the entry of an Order non pro tune as of

March 11, 1970 clarifying the Court’s Order entered .

of said date, the Court having examined the motion, and

heard statements of counsel, being fully advised in

premises ;

Ir Is Heresy Orperep that Dr. Bart Heffernan be

hereby appointed guardian ad litem for the class of a

unborn children in the State of Illinois who will be ad

versely affected by the abolition of the abortion satel

said State, and he is hereby authorized to intervene @

this litigation on behalf of Baby Boy Doe and Baby Hi

Roe, and on behalf of all unborn children similarly situated,

non pro tunc as of March 11, 1970.

Entered:

/s/ W. J. Campsen,

-

April 10, 1970.