Amicus Curiae Brief — Roe v. Wade

Supreme Court brief1973

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

JANE ROE, et al.,

HENRY WADE,

Appellee

On Appeal from the United States District Court

for the Northern District of Texas

BRIEF AMICUS CURIAE ON BEHALF OF

ASSOCIATION OF TEXAS DIOCESAN ATTORNEYS,

IN SUPPORT OF APPELLEE

2500 Red River Street

Austin, Texas 78705

Attorney for Amicus Curiae

Octobe? 15, 1971

———— PLGA LEM LLLP IE WLIO POI Mate GE EUS Mons Ee

INDEX

INTEREST OF AMICUS CURIAE ---------------------- -

STATEMENT OF THE CASE ----------------------.----

QUESTIONS PRESENTED -----------------------------

SUMMARY CF ARGUMENT -----------------------------

I. THE UNBORN CHILD OR FCETUS IS OR I.AY EE

REASCNABLY TixEATED BY THE STATE AS A PERSON

WITHIN THE MEANING OF THE CONSTITUTIONAL

SAFEGUARDS OF THE PEXSON CONTAINED IN THE

OONSTITUTION OF THE UNITED STATES, AND

ESPECIALLY IN THE FOURTH, FIFTH, NINTH,

AND FOURTEENTH AMENDI.ENTS ----------------- 4

A. The Stance From Which The Court Should

Approach This Constitutional Issue ----- >

Be The Concept Of The Person Utilized In

The Constitution of the United Stetes

And In Its First Ten Amendments Had A

well-defined Meaning For Those who

Framed And Adopted Their Provisions

That Clearly Included The Unborn Child

Who Was Deemed By Then To Be A Subject

Of Rights, Including The Right To Life - 8

C. kegard For The Context Of The

Constitution, In The Sense Of Its

Whole Framework In Relation To Its

Various Parts And Especially Those.

Provisions Providing Safeguards For

The Person, Such As The Fourth, Fifth,

Ninth, and Fourteenth Amendments,

Argues Strongly For Holding That An

Unborn Child Or Foetus Is A Person

within The Meaning Of Those Safeguards - 28

1. The Concept Of Context In

Constitutional Interpretation ------- 28

-l-=-

es SOE EE ASE LLIN VEERING LL RELL LEI E LNE LIEN IS EA

2. The Unborn Child Has Constitutional

Right To Application of State

Common Law In Diversity of

Citizenship Actions At Common Law

Under Article III And To A Jury

Trial Under The Seventh Amendment: -----

3. The Citizenship Clause Of The

Fourteenth Amendment Xecognizes The

Unborn Child As A Person, ‘iho, When

Born, Obtains The Further Status Uf |

A Citizen ---------+-------------------

4. The Concept Of Property Utilized I

’ *The Due Process Clauses Of The Fifth

And Fourteenth Amendments Has Reference

Primarily To The Concept Of Property

In State Law. Thus, To The Extent

That State Law Of Property Recognizes

That The Unborn Child Has Property

Rights, The Due Process Clauses Of

These Amendments Protects The Unborn

Child As A Person --<---<----<--------- --

The Concept Of Person Must Be Held As

uch Beyond The Power Of The State Or

Nation To Define, In The Sense Of

Determining .ihether Or Not Some Child

Of Human Beings Is Entitled To Be

Treated Before The Law As A Person, As

It Is Beyond The Power Of The State Or

Nation To Define The Concept Of

Religion, In The Sense Of Determining

Whether Or Not Some Group Is Pursuing

A Religious Cause And Entitled To

Solicit Support For It, And For The

Same R€asONnSe ---een-nne wenn enna swennnnnn-

The Long Continued Construction Of The

Constitution By The Congress And By

The Chief Executive As Comprehending

The Unborn Child Within Its Concept

Of The Person Bind This Court In

Administering The Constitutional

Safeguards Of The Person --<<<-<<---<<----<

tir

DENS TPE LI oo

om > ee

eSeS7sX— wom vere neem

F. Judged From The Standpoint Of sihat

It Is In Itself, The Unborn Child Is

A Person And Justice Demands That

Government Recognize This Fact And

Treat The Unborn Child For whet It Is ---

| a], THE UNBORN CHILD BEING A PEXSON AND

HAVING THE RIGHT TO LIFE WITHIN THE

7 MEANING OF THE OUNSTITUTIONAL SAFEGUARDS

: OF THE PERSON, THE STATE HAS THE DUTY oR

| THE RIGHT UNDER THE CONSTITUTION TO

PROTECT THE LIFE OF THAT CHILD REASONABLY

VIS-A-VIS ITS SINGLE MOTHER OR MARRIED

PARENTS WHO DESIRE TO TERMINATE ITS LIFE

WITHOUT UNREASUNABLY AFFECTING THE RIGHTS

OF THE LATTER snqwnssccesencncsnnanneiecise=

A. The State Is Faced With A Difficult

Decision-Making Problem In Resolving

The Correlative Rights Of The Unborn

Child As A Person And Of Its Single

Mother Or Married Parents, And Its

Decision To Protect The Life Of The

Unborn Child Through An Abortion

Statute Should Be Allowed To Stand

If It Is A Reasonable Decision ----------

B. The State Cannot Reasonably Leave

The Fate Of The Unborn Child To Be

Decided By Private Persons Such As

The Appellants In This Case Either .

With Respect To Whether An Abortion

Should Be Performed Or with Respect

To The Appropriate Reason For An

Abortione To Do So Would Be An

Unconstitutional Delegation Of

Authority And A Denial Of Equal

Protection Of The Laws ------------------

The Affirmative, Particular Reasons

That Can Be Adduced In Behalf Of

The Texas Law Of Abortion Demonstrate

The Reasonableness Cf The State

Legislative Judgment To Enact And

. *lii-

LESLIE FNS BEE

ans

eyes

‘EPR aeee

VES

FMR SIE ELE ee LE

x MLE LF PRA Din SP 1 FEB AED

ES ‘

Maintain That Law and They Counsel

Extreme Caution On The Part Of Federul

Courts In Declaring That State

Legislative Judgment To Be

Unconstitutional

Ill. SIKCE THE UNBORN CHILD IS A PERSUN AND HAS

A XIGHT To LIFE PRUTECTED BY THE FOURTH, +

FIFTH, NINTH, AND FOURTEENTH AMENDMENTS, j

IF THIS GUURT SUSTAINS THE LO..ER QUURT

DECISIGN THAT ARTICLES. 1191-1194 AND 1196

OF THE TEXAS PENAL OODE ARE UNOUNSTITUTIUNAL

ALD TG BE GIVEN NO FUXTHER OPERATIU:., THIS

QLUURT LiUST ALSO RENDER A DECISION STATING

THE GROUNDS UPON WHICH ABORTIONS MaY

TOS Car,

GUASTITLTIUNALLY BE SECURED OR PEWFORIMED i

#KD PROVIDE OX DESIGNATE THE TRIBUKALS F

FUR ADMINISTRATION GF THOSE STALDAXDS IN ‘

aACOURDANCE wITH THE REQUIREMENTS OF BOTH ;

SUBSTARKTIVE AND PROCEDURAL DUE PROCESS AND :

EQUAL PROTECTIONSCF THE LAi.S UNDER THE :

FOURTEENTH AMENDMENT AND, SINCE IT IS :

FEDERAL sCTION THAT CREATES THE HAZARD FOR :

UNBURN CKILDREN, UF THE FOURTH, FIFTH, AND :

NILTH AMENDMENTS ------------------- woe--- 118 '

GUCRUIEION, onenn stitienmmminiic Raison teeetnendninian iain ata 132 |

-iv-

6 ey eee

> BELEN Do Pk ee wik Beadle MrKe EY

<< = TC ee ee ee ee

4 CASES CITED

Afroyim v. Rusk, 387 U.S. 253 (1967)--

Air Terminal Services, Inc. v. Rentzel

81 F. Supp. 6Gll q-nn-nnnnnnn nnn - ===

RBabbitz v. McCann, 310 F. Supp 293, 301

(E.D. Wis. 1970), appeal dismissed for

want of jurisd., 400 U.S. 1

(1970) (per.curiam) - -- ‘asinine

Raker v. Carr, 369°U.S. 188 (1962) ---

—-_ ee ;

Board of Governors of Federal Reserve

System v. Transamerica Corn., 184 F.2d

311 (C.A. 9, 1950) cert. denied, 340

U.S. 883 (1950) -nennnnnnn----------

Bolling V. Sharpe, 347 U.S. 497 (1954)

Ronbrest v. Kotz, 65 F. Supp 138

().D.C. 1946) <---------------------

Bours v. United States, 22 Fed. 960

TGA. 7, 1915) -eeeeenenne-nn-------

Boyd v. United States, 116 U.S. 616,

639 een ee ee en eee nee === ---

Brandenburg v. Ohio, 395 U.S. 444, 452,

454 ers) Black 6 Douglas dissent.

Brewer V, Hoxie School District No. 46,

238 F.2d 91 (8th Cir. 1956) ---------

Cantwell v. State of Connecticut, 310

U.S. 206 (1940) ---------- 2 == ------

Davis v. Beason, 133 U.S. 333 -------

De Jonge v. Oregon, 299 U.S. 353, 365,

i eee ey cen

Delgado v. Yandell, Tex. »(1971)

-V=-

119

1390

eC aa | ‘9

REN

FTP

CASES CITED

o Page

Doe v. Bolton, 319 F. Supp. 1048,

“To55 (N.D. Ga. 1970) -------------- ‘83, 84, 87

94, 114

Doe v. Clarke, 2 H.Bl. 399, 126

“Engl Rep. 617. (1795) - 39

Doe v. Rampton, No. C-234-70 (D,. Utah.

“T1970) ----- 84

Doe v. Scott, 321 F. Supp. 1385, 1389,

“TY.D. Til. 1971)(appeal docketed sub

nom, Hanrahan v. Doe, 39 U.S. L.W.

3438 (U.S. Mar. 29, 1971)(No. 1522,

1970 Term; renumbered No. 70-105,

1971 Term), stay issued (Marshall,

J, Sup. Ct. Feb.10, 1971) --------- By |

Duncan v. State of Louisiana, 391 U.S.

145 (1968) --------- nn nn nnn nn ------- 29, 31,

Eli Lilly & Co. v. Schwegmann Bros.

Giant Super Markets, 109 F. Supp.

269 (D.C. La. 1953) affirmed 205

F.2d 788 (C.A. 5, 1953), cert.

denied 346 U.S. 856 (1953) -------- 121

Erie Railroad Co. v. Tompkins, 304

U.S. of (1908) -= 29, 31,

32, 42

Application of the President and

Sesctors of Georgetown College, Inc.,

331 Fe2d 1000 (CsAs DeCoy Teen), cert.

den., 377 U.S. 978 (1964) --------- 44 45

Gibbons v. Ogden, 9 Wheat. 1, 188-189 ll:

Goldberg v. Kelly, 397 U.S. 254, 264-

265 (1970) anne wwe nnn nn nn nnn- === 109, 116,

, 1272, 123;

124

Poe GLEAN EME ERG ELIOT IOS ONION

EE Re See eR

OE NRF Ee

PRAT OPT TE H.

opera

ABA P AT AT

eo 2 BOOB ECORI

CASES CITED

Page

Green v. McElroy, 360 U.S. 474

T1959) - 93

Griswold v. Connecticut, 381 U.S. 479

: “Ti965) --------- 83, 84, 85,

| 86, 87, 88,

Hall v. Hancock, 15 Pick, 255 (Mass., i

“Tesu) = -- 39

- Paul B, Haring v. Commander Willford 4

| “fall Air Force Base, No. SA 71 CA‘il 57, 58 E

2 Hurd Ve Hodge, 334 U.S. 24 (1948 )---- 119

' James v. James, 174 S.W. 47 (Tex. Civ, ;

| Ipp., 1914) - * 39 i

Johnson v. Yellow Cab., 321 U.S. 383 63 5

| Kelly v. Wyman, 294 F. Supp. 893, | .

} g99, 900 (1968) 123 E

Kent v. Dulles, 357 U.S. 116 (1958) 93

Kyne v. Kyne, 38 Cal. App2d 122, ‘

100 P.2d 806 (1940). -------------- 43

La Blue v. Specker, 358 Mich. 558, Y

“T00 NW, oa nas 1960) 39 :

Leal v. C.C. Pitts Sand and Gravel, ‘

E Ine. Tex. ry 419 S.4. 2d 820 f

T1967 f 43

| Levy v. Louisiana, 391 U.S. 68 (1968) 95, 96

Lochner v. New York, 198 U.S. 45(1905) 82 |

| “at 7 (dissent per Holmes, J.) |

Marbury v. Madison, 1 Cranch 137, 179-

ame -—— 8, 9-10,

"cCulloch v,. Maryland, 4 Wheat 316 -- 28, 31

-vii-

BTR 6 AEB IIILE! OA LLU OTL SERRE ILE LE GOODEN LAA

E_— FE ea —iheon

“vers v. United States, 272 U.S. 52,

175 (1926) -<-- ania

New York Times v. Sullivan, 376 U.S.

a 6)

Oklahoma City v. Sanders, 94 F.2d 323

People v. Belous, 80 Cal. Rptr. 354,

S.Ct. Cal. 1969) cert. denied

397 U.S. 915 (1970)

People v. Estergard, Colo. , 457

P,2d 698 Tissot --- windie

neopee ex rel Wallace v. Labrenz, 411

7 61 ry ole d 769, cert.

denied, 344 U.S, 824, 73 S.Ct. 24 --

Pierce v. Society of Sisters, 268 U.S.

Prince v. Commonwealth of Massachu-

setts, 321 U.o. 108 (LOU) ------=-

Public Utilities Commission of Dis-

trict of Columbia v. Capital Transit

Cows 214 bd 42 (D.C, Cir, 1954 “=

Ex Parte Quirin, 317 U.S., 42 (1942)

5 ps

Raleigh Pitkin-Paul Morgan Memorial

fospttal v. Anderson Bs N.J. 421,

0 A, 537 esnesenaeae = Seaeesaw

Reynolds v. Sims, 377 U.S. 533(1964)

Reynolds v. United States, 98 U.S.

TES) Scwecas i ---

Rewis v, United States, 369 F. (C.A.

Fe 1966) <a ea sae anon eae ea eae iat areaes

130

Quy

77, 78, 79

80, 89

119, 120

SR he IIE LEL GPO TERS SESE OEICG BT, A EAS,

OMS Gy

AS EPL SL BS BOS OER NES EERIE BANE AEE PE SERIE ERLE LE LRA I IE ES BEBE

CASES CITED

Roberson v. Rochester Folding Box Co.,

171 N. ry 538 te PP. Nive, 190 oo

Robinson v. California, 379 U.S. 660

(1962) -------------=----------------

Roe vs Wade, 314 F, Supp 1217, 1221-

“Ted (80s Tes (STG) anccccnsencocn.

Rosen v. Louisiana State Board of M

Yedical Examiners, 318 fF. Supp. 1217

(E.D. La. 1970) Oe OO De See eee eee eo

A.L.A. Schecter Poult Corp. v.

United States, 295 U.S, Toe 553

(concurring opinion) --------------

Scott v. McPheeters, 33 Cal. App. 2d

629, 92 P,2d 676 (1939), rehearing

denied, 93 P.2d 562 (1939) ----- glow

Shelley v. Kraemer, 334 U.S. 1 (1948)

Sox v. United States, 187 F. Supp.

“65 6 oP oe 1960) PBOSROSSOOSCO2OSO®

Skinner v. State of Oklahoma, 316

U8. 58S, SHI-BE ceeeerecmmnngennne |

State v, Buck, 200 or. 87, 269 P.2d

502 (1953) --- eee enn ne - ee eee

State v. Dunklebarger, 206 Iowa 971,

221 N.Ws 594, 596 (1928) -------..-

State v. Perricone, 37 N.J. 463, 181

Beak TOL CGC 2) etew deep wecccusns

128

81, 82,

88, 89

91, 92

97 ,98,99

119

116

womans asd

EB PAE 68 Fin RAAT OY ES OPE EIEN ID, Se

CASES CITED

Steinber’ v. Brown, 321 F. Supp. 741

ry e 0 io 1970) — oe ae ee oe ee Oe Oe oe Oe ee oe oe oe oe oe

Sterling v. Constantin, 287 U.S. 378

(1982) at S96 cemeccewncccwwecccnns

Stewart & Co. v. Sadrakula, 309 U.S.

QU ween nan nnn nnn nnn nnn nnn - ==

Swift v. Tyson, 16 Pet. 1 (1842) ----

Trop v. Dulles, 356 U.S. 86 (1958) --

United States v. Barney, 5 Rilatch*,

294, Feds Cas. No. 14,524, ---------

United States v. Josef Alstoetter, et

al., (United States Milirary Tri-

bunal No. III, 1947) -----------.--

United States v. Monia, 317 U.S. 424

at 431, (1942) ----- ween -----------

United States v. Philadelphia National

Bank, 374 U.S, 321 eu) sceasence

United States v. Sharpnack, 355 U.S.

286 at 201 (1958) ---------~- oo----

United States v. United Mine Workers

of America, 330 U.S. 258 (1047) ----

United States v. Vuitch, 402 U.S. 62

(1971) ewewenen nn ew n-ne

West India Fruit and Steamship Co, v.

Seatrain Lines, 170 F.2d 775 toh,

dhitney v. California, 274 U.S. 357,

PIES) (1007) eeceminnenecancdece.

-X=-

Page

81, 82, 88

128

51, 62

130

SAE LT HET RMA ER OO

PES OR TOT a

CASES CITED

Williams v. United States, 327 U.S.

711, eee ewe ee wwe eee ow www ewww eee

Application of Yamashita, 327 U.S.

“1 (1946) womw wwe o nme nen ennnnnn---

gemel ve. Rusk, 381 U.S. 1 (1965) --

——— —_—_—_———_

-xi-

YSERA LILI IE TE LOE SSI NR

Sat

SSE RAEN IM A SOIT TINY

a PS OED AE TI: 2 PPE AL

STATUTES CITED

| constitution of the United States

Article I, Section 8 ---------------------- 28

Article III ----------------2-------------- 29, 30, 31,32 }

Article III, Section 3 -------------------- 8 ;

Picky Rendien, =84S24naa essa eeareereeeeee 11, 47, 85,131 |

Third Amendment --------------------------- 85

Fourth Amendment ----------------~ 28, 32, 33, 38, 49,118 ;

Fifth Amendment . ------------<--- 2, 3, 4, 5, 7, 8 9&

13, 28, 30, 32, 33, 38, 41 |

42, 46, 49, 57, 81, 85, 86 §

88,118,131 :

Seventh Amendment ------------------------- 31, 32, 33, 49 ©

Eighth Amendment ------------------------- 49, 57,128 i

Ninth Amendment ae 3, : 5, 7, 8, 9, 28 |

Fourteenth Amendment 3, 4,5, 7, 8, 9, 28.

30, 32,33,34,35, 36, 37, 38

12,46 ,47,49, 52, 81, 82, 85 ©

95,118,122,129 ©

United States Statutes

Pub. Law 91-662 (Jan. 8, 1971) ------------ 60

4 Stat. 115 (Mar. 3, 1825) ---------------- 4g

14 Stat. 13 (April 5, 1866) --------------- 51

17 Stat. 598-599 (Mar. 3, 1873) ----------- 60

19 Stat. 90 (July 12, 1876) --------------- 60

84 Stat. 1504 (Dec. 2k, 1970) ------------- 61, 62

10S. 107s 1006 aqe este nnnceeee-s-=25<- 53

10 U.S.C. 1072 ---------------------------- an

10 U.S.C. 1076 ---------------------------- 54, 56

10 U.S.C. 1077 ---------------------------- 58, 54

15 U.S.C. 18 ------------------------------ 72

18 U.S.C. 13 ------------------------------ 58, 51

18 U.S.C. 1461 ---------------------------- 60

19 U.S.C. 1305 ---------------------------- 60

28 U.S.C. 2671 et seq. -------------------- 58

42 U.S.C. 1981, 1988 ---------------------- 58

State Statutes

Cal. Civil Code, Sec. 29 ------------------ 43

-xii-

OBESE RS LES LALEEST LI SELLE IE SLO ELE LILO EGIL DL IN SLL ELLIE BEET

Oe ee. ett te yt Orgs NO

-xiii-

STATUTES CITED Page

State Statutes

Cal. Penal Code, sec. 270 ----------------- kh

Cal. Stats. 1850, ch. 99, s. 45, p. 233 --- 50

Colo. L. 1861, p. 296, s. 42 -------------- 50

Conn. Stat, Tit. 22, s. 14, p. 152 -------- 50

District of Columbia Code, s. 22-20] ------ 59

Ill. R.S., 1845, p- 158, Ss. 46 ewww ee ee eee 50

Mass. St., 1845, c. 27 -------------------- 50

New York Laws, 1903, c. 132,

N.Y. Civil Rights Law, ss. 50,51 ----4j---- 41

N.Y. Rev.S., Vol. 2, pp. 578-579

g. 21 (1836) ---------..........-.-....2 50

Penn. M.L., 1860, p. 382, s. 88 ----------) 50

Tex. H.B. No. 1092 (1971) ----------------- 105

Tex. Penal Code, Arts. 531-536 (1857) ----- 50

Tex. Penal Code (Vernon's) Arts. 1191- ----

1194, 1196 ------------------------------- 2, 3, 4,118

Tex. Probate Code, s. 66 (Vernon's) ------- 39

English Statutes 25, 50

43 Geo. III, c. 58 (1803)

Federal Regulations

92 C.F.R. 577.64 (ce) (7) aosovececsecueucue 54

32 C.F.R. 577.64(e) (3, (9) --------------- 55

U.S. Air Force Regulation 160-12 ---------- 57, 58

SIRO SLE AE SLE IEEE LED DOWGIESL LAE BIEL ALO LT REIS ISTE SOLE em

' AUTHORITIES CITED Page

Andrews, James DeWitt, ed., The Works of ,

James Wilson, 189%. Vol. II, p. 3 ------------- 14

Arey, Leslie B., Developmental Anatomy

(1954), Chaps. II, VI. ------------------------ 68, 69

Atkinson On Wills (2d ed. 1953) 75 ------------- 39

—__

Avins, Alfred, ed., The Reconstruction

Amendments' Debates (1967) 760, 274,

166, 205, 550 <a ge 335 34, 35

Barr, Donald, July 4, 1776 (1958) 138 ---------- 19

~, 7

RN RES

Boorstin, Daniel J., The Americans: The

Colonial Experience (1955) 194, 202

3L7, 348, 352 ------------ n-ne o- 22, 23, 2k

Callaghan, Daniel, Abortion, Law,

Choice and Morality (1970) 62, 63, 82, 93------ 105,106,109

2 NL EAD REL

Carpenter, W. F., ‘Introduction’ to

Jonn Locke, Two Treatises of Civil t

Government, vii ------------------------------- 16

Congressional Record, Vol. 102

(Mar. 2, 1956) p. 3847 ------------------------ 53 |

Congressional Record, Vol. 102

(Mar. 2, 1950) pp. 3851-3853 ------------------ 54

United Nations, "Declaration of the

Rights of the Child," Official

Record, pp. 19-20, ---------------------------- 74, 75

Decter, Midge, "Anti-Americanism in

America’, Harper's Magazine, .

(April, 1968) p. 39 -------------------------- 103

-xiv-

Gea mee ang Spy SERA BETA AIT OER NE SLO LON IG EE LIEBES LEI BELEN LES OLY IEE LS. Bt

——~

AUTHORITIES CITED

Dickens, Bernard M,, Abortion and the

taw (1966) 22 , 148 ------------

Federal Bureau Of Investigation,

Crime in the United States (1965) 3 -------

The Federalist (1945) 575-576 ---

—"Petology: The Smallest Patients",

The Sciences (October, 1968) 159-163 ------

Feuer, Lewis S., "On Civil Disobedience" ,

The New York Times Magazine

(September 26, 1967) 29, 122 ---

) Flannigan, G. L., The First Nine Months

of Life (1962)

Ford, Paul L., ed., Pamphlets on the

Constitution of the United States

(not dated) -------------------------------

Fortas, Abe, Concerning Dissent and

and Civil Disobedience: We Have An

Alternative to

Violence (1935)

80 ------

Gavit, Bernard C., ed., Blackstone's

Commentaries on the Law (1941)

Gesell, Arnold

of Life (1940)

Gesell, Arnold,

Behavior (1945)

Gilson, Etienne,

First Five Years

05 -nnnnnnnnnenne

The Embryolo of

Chaps. ae X

The Spirit of

Mediaeval Philosophy e595 203

Gordon, David A.

, "The Unborn

Plaintiff, 63 Mich. L. Rev. 579, ---------

627 (1965)

-XVe-

i Ce een a ah ee tent omer ke eed

Page

26, 29

112

20, 27

103

68, 69

203

STS ee Pet

LSE OLN OLDE AG BEALL SEE IIE

ceenatihetaaimnalimnani DON TIS A RRR EPR MT AE

_ .

AUTHORITIES CITED

Gottlieb, Frederich J., Developmental

Genetics (1966) 17 -------------------------

Granfield, David, The Abortion

Decision (1969) ----------------- eee we

Harper cnd James, Torts (1956) Sec.

[6.3 Serer Se eran ana a kee e eee eaten tesa ee

Hearings before Committee on Armed

Services, U.S. House of Representatives ©

Comm. Rep. 53, 84th Cong., 2d Sess.

1956, 6029, 6034 -------------+-------------

Helligers, Dr. Andre, "Fetal

Development’, 31 Theological Studies

No. 1 (March, 1970) 7,-<<<---4-----~.-2.-.~-

Helligers, Dr. Andre, National

Symposium on Abortion, May 15, 1970,

Prudential Plaza Auditoriun,

Chicago, Illinois ---------------------------

Hellman, L. M., et al, “Growth and

Development of the Human Fetus

Prior to the 20th Week of Gestation",

103 Amer. J. Obstetrics and

| Qmecology 789-500 (Mar. 15, 1969) ----------

Henry, G. R., “The Role of Amnioscopy

_ in the Prevention of Ante Partum Hypoxia

of the Fetus", 76 J. Obstetrics and

Gynecology of the British Commonwealth

T9198 (1909) —a nsec nen nccenecanccccenenace

Hooker, Davenport, The Prenatal Origin

of Betavior (1952) weancensnwencancwncsccce

-xvi-

Page

66, 79, 81

105,108,111

113,114,122

asepha ihe ae RUA SD IRCA etnias P A RB LANEASEA OL NOL DAE ARE PAL NE Cine

AUTHORITIES CITED Page

Horger, E.O. II, and Hutchinson, D. L.,

"Diagnostic Use of Amniotic Fluid’,

15 J. of Pediatrics 503-508 -------------- vaN

—

Institut zur Erforchung der UdSSR,

forty Years of the Soviet Regime,

onich (1957) ---------------------- =o 102

Kennan, George F., "Rebels Without

. Provram', The New York Times

Magazine (Jan. 21, 1963) 00 -------------- 103

Lerner, Max, America as a

Civilization (1957) 601 ----------------- -~ 102

Lidz, Theodore, cited in Rosen,

Harold, Therapeutic Abortions,

Medical, Psychiatric, Legal,

Anthropological, and Religious

Considerations (1954) 275 ---------------- 106,107

Liley, Albert W., "Auckland MD

' te Measure Light and Sound Inside

Uterus", Medical Tribune Report

(Nay 26, 1969) -2-s-seeneneee ee nn ene n een 70

liley, H.M.I., and Day, B.F.,

Modern Motherhood: Pregnancy,

Childbirth and the Newborn

Baby (1909) 50, 202 ---------------------- 68, 70

locke, John, Two Treatises of

Government, Book I (Everyman Library) ---- 16, 17, 18

| 19

louisell, David W., and Noonan,

John T., Jr., “Constitutional

Balance” in The Morality of

Abortion (1970) 220, 226-230 ------------- 43

-xvii-

1 NC OM aaa |

PERG Ds ee es « ee eee See “ . <8 : Be a Bt PS

AUTHORITIES CITED Page

MacDonald, P.R., ‘Complications of

Abortion’, Nursing Times (Mar. 10, 1967)

305-307 quoted in Callaghan, Daniel,

abortion: Law, Choice and Morality

T1910) 35 -nnn nr 115

ANT IR TIPS

Mietus, Norbert J., The Therapeutic

Abortion Act: A Statement in

Opposition (1967) 6, 4B ------------------ 113,124

Montagu, R. Ashley, Life Before

Birth (1964) 2 --------------------------- 65

RIE ALTE TOMY ig OER IE BS

The New York Times, Sunday,

April 4, 1971, ] ------------------------- 58, 59

—— ¥

Novak, Michzel, “The Secular Saint”,

Te Center Magazine (May, 1968)

O'Doherty, N., ‘Prenatal Treatment t

of Adrenal Insufficiency’, The Lancet

No. 29 (1969) 1194-1195 ---------------+-- 71

Padover, Saul K., The Complete

Jefferson (1943) 92, 935, 945 ------------ 21, 22

Patten, Bradley M., Human Embryology

(3d. ed. 1968) Ch. VIT ------------------- 69

Pollock, Sir Frederick, Essays in |

the Law (1922) 80 -----=------------------ 16 :

Petre-Quadens, 0., et al, “Sleep

in Pregnancy: Evidence of Fetal

Sleep Characteristics",

4 J. Neruologic Sciences

600-005 (May-June, 1967) ----------------- 69

Prosser on Torts (3d. ed., 1964) 355-356 -- 43

-xviii-

I ER DLGRIS LENT IO ES NGL OE PION RIS Rad +

AUTHORITIES CITED Page

pye, Kenneth, "The Warren Court and

- Criminal Procedure", 67 Mich. L.

Rev. 249, 258 (1968) ----------------------- 126

Ramsey, Paul, “Reference Points in

Deciding About Abortion", in Noonan,

John T., Jr., ed., The Morality of

Abortion: Legal and Historical

Perspectives (1970) 66 --------------------- 66

Rutland, Robert Allen, The Birth of

the Bill of Rights: 1776-1791

11955) 119, 216, 231 ----------------------- 10

- Second Vatican Council, De Ecclesia in

mindo huius temporus (Gaudium et spes)

(Dec. 5, 1965) sec. 51 ------------------- = 1

> Sevilla, Rafael M., "Oral Feeding

- of Human Fetus, a Possibility’,

: Jama (May 4, 1970) 713-717 ---------------- 71

Shrirer, William L., The Rise and

- and Fall of the Third Reich (1960) --------- 102

Story, W.W., The Life and Letters

of Joseph Story (1551) Vol. 1, 297 --------- 50

Texas State Department of Public

Welfare, Manual of Services (Feb. 1967) ---- 112

Witherspoon, Dr. John, Lectures on

Moral Philosophy (1912) 84 ----------------- 15, 21

-xix-

UAT ENE DRONE I ARE GL IL BE LOOM G IEP EE I HY IT TD ea |

Sent

AUTHORITIES CITED

Wood, Carl, 'Weightlessness: Its

Implications for the Human Fetus",

717 J. Obstetrics and Gynecology

of the British Commonwealth 333-336 (1970) -- 70

ORCS TES AES pe ates BE OEE OES EIA Mee FOF

gee

PLUTON IS EGE SL Se

PEE TAKE Ce eg AE

Oars eam

ito A.

eateth tied cnstliies sinneteiminal

INTEREST OF AMICUS CURIA

The Association of Texas Diocesan Attorneys appears

Bas amicus curiae with the written consent of both parties,

given in letters which have been filed with the Clerk of

Beris Court. The Association is organized to provide mutual

Paid and benefit for its members in dealing with all problems

of a legal nature relating to bishops, priests, religious,

Pajoceses, parishes, orders, congregations, societies in the

‘zoman Catholic Church, and their work, and all that relates

‘thereto. The Association has been in existence for a number

of years and has an active voting membership consisting of

licensed Texas lawyers designated by their respective Ordi-

“the Association is an autonomous one and independent of the

‘aboveementioned Church. One of the legal problems relating

“to the named offices, divisions, and societies of the Church

pwith which they, and thus the Association, are concerned is

Ethe problem of abortion. The position of the Roman Catholic

church on abortion, long since taken, was elaborated for the

‘tipst time by a general council of this Church, the Second

Pyatican Council, and promulgated by Pope Paul Paul VI on

december 5, 1965. It stated:

} "Life from its conception is to be guarded with

the greatest care. Abortion and infanticide are

horrible crimes."' Second Vatican Council, De

ecclesia in mundo huius temporis (Guadium et

spes), sec. 51.

‘The Roman Catholic Church in the United States and the

‘amicus Association seek to encourage and foster the rights

guaranteed by the Constitution of the United States and

-endeavor to vindicate those rights whenever threatened.

Amicus appears here because of its conviction that

unborn chYldren have been deprived by the decision of the

court below of the protection of a valid state statute pro-

ibiting abortion except in defined circumstances with the

effect of denyine their federal constitutional right to life

and all other federal and state rights consequent upon the

enjoyment of this right.

2 WIPER ORAS

ynaries. While subserving the end for which it was organized, ¢

STATEMENT OF THE CASE

Amicus respectfully refers the Court to the state.

ments of the case incorporated in the brief for appellants

but asserts that the statement of appellants contained in

their last sentence on page 15 of their brief is incorrec:

insofar as it advances the argument that the issuance of ty

judgment by the lower court in declining to enforce its

declaratory judgment was one "without meanine*ul effect,"

Whether or not that judgment was without meaningful effect

depends upon the resolution of constitutional issues pre-

sented in this case and focused upon in the brief of amicus}

QUESTIONS PRESENTED

1. the unborn child must or may reasonably

be viewed by the State of Texas as a person for the purposes

of giving effect through statutory and decisional law to th

safeguards of the person contained in the Constitution of

the United States as expressed in the Fourth Amendment, the

Due Process Clauses of the Fifth and Fourteenth Amendment,

and the Ninth Amendment?

2, Whether, in the event the unborn child must or

may reasonably be viewed by the State of Texas as a person

for the purposes of giving effect to the safeguards of the

person in the Fourth, Fifth, Fourteenth, and Ninth Amend-

ments, the unborn child has a right to life under these

‘amendments vis-a-vis its single mother or married parents

who desire to terminate its life that this State has reason

ably protected through Articles 1191-1194 and 1196 of the

Texas Penal Code, which prohibit the performance of abor-

tions unless "procured or attempted by medical advice for

the purpose of saving the life of the mother"?

3, Whether, in the event the unborn child has a

right to life protected by the Fourth, Fifth, Fourteenth,

and Ninth Amendments but Articles 1191-1194 and 1196 of the

Texas Penal Code, although directed to protection of that

-2=

hhife, are held to be unconstitutional and to be given no

Iurther operation, a federal court can constitutionally

aelegate the power of decision-making with respect to the

ontinued enjoyment by unborn children of their right to

:fe to private persons, viz., single women, married persons,

nd physicians such as the appellants in this case without

faking provision for the grounds upon which abortions may

Sonstitutionally be secured or performed and for official

Anstitutions to administer such standards in accordance with

%he requirements of procedural due process?

SUMMARY OF ARGUMENT

2 Although there are numerous issues involved in this

tase, this brief will address itself only to three, so as to

syoid repetition of the arguments presented by appellee and

y other briefs of amicus curiae. We believe that the time

s ripe for this Court to determine that the unborn child or

retus is a person for the purpose of administering the

afesuards of the a in the Fifth, Fourteenth,

nd Ninth Amendments; that the unborn child, however unwanted

r considered to be a burden by its parents, has a constitu-

onally protected right to life; and that the protection of

eir lives accorded by a state to unborn children through

atutory provisions like Articles 1191-1194 and 1196 of the

xvas Penal Code is a reasonable protection that a state can

ostitutionally provide those children. Stating the last

position differently, the protection of the unborn child

foetus under statutory provisions like Articles 1191-1194

41196 of the Texas Penal Code does not unreasonably impair

ne personal freedom of married couples or of single women,

eir right to determine the number and spacing of their

jildren, or their rights to marital privacy, personal pri-

acy, or physical privacy so far as these are constitu-

Sonally recognized, Neither do these statutory provisions

reasonably impair the constitutional right of physicians

administer health care to women.

Most of the arguments by appellants and amicus |

in support of appellants proceed almost exclusively

EPS EE AOP ET ERR SR PES IE RGA SPIES 2 PORT Re

Peer ane

ELE P AOS ORD PILOT ELIE EMC I NOIRE TARE NE

APE APL LEIS PL SEND SE I RCE OMB I Oe OL LT TEA TEND HI STEM RED CS

without really considering whether, for the purpose of af

ministering the constitutional safeguards of the person,

the unborn child or foetus is a person and has the right yp

life as a matter of federal constitutional right. It is —

the position of amicus that the unborn child or foetus ff

possesses the status of a person and is entitled to prote)

tion of its life as a matter of fundamental federal consti.f

tutional right. This court cannot adequately dispose of [|

this case on the merits without a decision upon these ani |

related matters.

Amicus urges this Court to render a decision holi. ff

ing that the three-judge court erred in holding that Arti. >

cles 1191-1194 and 1196 of the Texas” Penal Code are uncon. f

stitutional (1) insofar as that decision was reached with §

out recognition that the unborn child or foetus is a persaf

within the meaning of and has a right to life protected bf

the constitutional safeguards of the person contained in f

the Constitution of the United States and, most especially}

in its Fifth, Fourteenth, and Ninth Amendments; (2) insofap

as that court held the right of single women and married

persons to choose whether to have children, as protected h

the Fourteenth Amendment, was infringed by the above arti-

cles;“and (3) insofar as the court did not apply in favor

of unborn children and the protection of their right to

life the same constitutional standard it applied "under th

Ninth Amendment" in favor of single women and married per

sons and their right to choose whether to have children,

ARGUMENT

. POINT ONE

THE UNBORN CHILD OR FOETUS IS OR MAY BE REASONABLY TREATED

BY THE STATE AS A PERSON WITHIN THE MEANING OF THE CONSTI-

TUTIONAL SAFEGUARDS OF THE. PERSON CONTAINED IN THE CONSTI-

TUTION OF THE UNITED STATES, AND ESPECIALLY IN THE FOURTH,

FIFTH, NINTH, AND FOURTEENTH AMENDMENTS,

SEE AARON PUES FAL RAMA RI LS Mk QO PED EES GAM TEN HEN. UNA OIA eh BRIE

A, The Stance From Which The Court Should Approach

This Constitutional Issue

In Application of Yamashita, 327 .S. 1 (1946) the

Aoetitioner, a defeated seneral of a recent enemy nation had

Myeen sentenced to hang by a United States militarv conmis-

Asion, asked this Court to consider the issue of whether or

not, as he contended, he, as a person, had been deprived of

Anis rights to a fair trial in violation of the Due Process

“clause of the Fifth Amendment by the action of that comnis-

‘sion in admitting in evidence of depositions, affidavits

‘and hearsay and opinion evidence. This Court, ina decision ;

py a divided panel that had been subjected to extensive

riticism, refused to pass upon this contention, without :

jeven determining whether the petitioner was a "person" 3

Ientitled to invoke the protection of the clause invoked.

r=)

u“

“a

fe)

“

imply stated:

SOT

"Vie have considered, but find it unnecessary to

discuss other contentions which we find to he

without merit." 327 U.S. at 25.

pe eee

ars So

bed de

This case, as it has been handled bv the lower

ftourt, is very similar to the Yamashita case. It involves

a party, here a state officer, who. impliedly asserted he-

Fore the lower tribunal that a certain class of human

eings, here unborn children, are "persons" within the

eanine of the Due Process Clauses of the Fifth and Tour-

Eteenth Amendments; that these persons have a risht to life

protected by these clauses; that the State has a right to

nact an abortion law to protect that constitutional right;

nd that the abortion law, as enacted, does not violate the

ourth, Fifth, Fourteenth, or Ninth Amendments insofar as

ingle women and married couples also have constitutional

ights protected by these provisions. The lower court, as

id this Court in the Yamashita case, did not address it-

lf to the central, primordial constitutional issues that

ad been properly raised by one of the parties in the case,

re the appellee. It is the position of amicus that the

fecisional process utilized bv the lower court was a denial

¥ procedural due process of law to appellee and to the

Se od

SLOP IIR FE

BICEP EEE Eg LE

pd alee ee td

Fain al - t

unborn children whose lives were sourht to be protected by

the statute appellee was attempting to defend as to its _

constitutionality. ~Since what the lower court did in this

case follows the precedent for that action contained in

Yamashita, amicus urges this Court to overrule the latter

case at least insofar as it seems to authorize what the

lower court did.

Mr. Justice Rutledge, in a dissenting opinion ip

the Yamashita case, stated the point of view that must

surely control consideration of the issues by this Court if

this case. Referring to the fact that the decision was

"unprecedented in our history," he stated:

"The novelty is legal as well as historical. ‘te

are on strange ground. Precedent is not all-

controlling in law. There must be room for

since every precedent has an origin. But it is

the essence of our tradition for judges, when they

stand at the end of the marked way, to go forward

with caution keeping sight, so far as they are

able, upon the great landmarks left behind and the

direction they point ahead. If, as nav be hoped,

we are now to enter upon a new era of law in the

world, it becomes more important than ever before

for the nations creating that system to observe

their greatest traditions of administering justice,

including this one, both in their judging and in

their new creation, The proceedings in this case

veer so far from some of our time-tested road

signs that I cannot take the large strides valida

ting them would demand.

",..I am completely unable to accept or to under-

stand the Court's ruling concerning the applica-

bility of the due process clause of the Fifth

Amendment to this case. Not heretofore has it

been held that anv human being is beyond its uni-

versally protecting spread in the guaranty of a

fair trial in the most fundamental sense. That

door is dangerous to open. I will have no part i

opening it. For once it is ajar, even for enemy

-6<

belligerents, it can be pushed back wider ‘or

others, perhaps ultimately for all.

"The Court does not declare expressly that peti-

tioner as an enemy belliserent has no constitu-

tional rights, a ruling T could understand but not

accept. ‘leither does it affirm that he has sone,

if but/little, constitutional protection. Nor

does the Court defend what was done. I think the

effect of what it does is in substance to denv

him all such safeguards. And this is the great

issue in the cause." 327 U.S. at 43, 79,

In this case this Court once again, as in Yama-

ita, stands on strange ground and at the end of the

ed way. The great issue in this case is whether the

morn child or foetus is a person within the meaning of

he constitutional safeguards of the person contained in

he Constitution of the United States, and especially in

s Fourth, Fifth, Fourteenth, and Ninth Amendments. For,

£ the unborn child is a person for constitutional purposes,

he whole framework of argument and decision must be chanred

ron that adopted, respectively, by the appellants and the

ower court. This result would mean that the unborn child, q

sa person, is entitled, in general, to the protection of 4

s life under the Constitution of the United States and

at in assessing the validitv of state abortion legisla- &

Son directed toward the protection of this constitutional

cht, the risht to life of the unborn child must be con-

i¢ered and evaluated by the courts quite as thoroughly and

wally as the rights of single women and married couples

pth respect to marital privacy, personal privacy, physical

ntegrity, personal freedom, and determination of the nun-

rand spacing of their children, 4

In short, amicus urges this Court sauarelv to face

¢ resolve the issue properly and explicitly raised bv the

rellee, a state officer charged with the performance of

inportant function by his state, as to whether the un-

m child or foetus is a person within the meaning of the

nstitutional safeguards of the person contained in the

nstitution of the United States, and especially in its

i Dus

Fourth, Fifth, Ninth and Fourteenth Amendments, and as ty

whether the unborn child or foetus, as a person, has a

constitutional right to life. To do otherwise would be ¢,

this Court to deny procedural due process to appellee ang

to all those whom, in the name of the State of Texas, thi;

appellee represents.

B. The concept of the person utilized in the Consti.

tution of the United States and in its first te,

Amendments had a well-defined meaning for those

who framed and adopted their provisions that

clearly included the unborn child or foetus who

was deemed by them to be a subject of rights,

including the right to life, and a person to whe

its parents as well as political society itself

owed important duties of care and support. Asa

matter of sound constitutional interpretation

theory, this Court must recornize and apply this

meaning of the concept of the person and implene::

the purpose underlying the employment of this

concept as the foremost principle of this Consti.-

tution.

Chief Justice “Marshall in “arbury v. ‘fadison,

1 Cranch 137, 179-180, stated "that the framers of the Co.

stitution contemplated that instrument as a rule for the

government of courts, as well as of the legislature."

While his focus in that case was primarily upon a legisle

tive disregard of a Constitutional rule, it was also upon

avoiding a like judicial disregard of that rule. It is mx

without significance for the instant case that the Chief

Justice, in selecting a few of many parts of the Constitv-

tion to illustrate his basic proposition, referred to one

of the explicit safeguards of the person contained in the

Constitution, Section 3 of Article III:

"No Person shall be convicted of Treason unless =

the Testimony of two Witnesses to the same overt

Act, or on Confession in open Court." Ibid.

It would have been just gs inadmissible by the Chie* Justic

and the other members of the Court in 1893 that this rule

af.

OLS One tn et Signe

B::a not speak to and bind the Court insofar as it provided

"person" was to be protected by the rule as it was

Pthat a

Pinainissible to them that the type of the protection to

Baccorded the person as specified in this rule di not sneak

Dey and bind the Court. Not just part but the whole of this

Sand other rules of the Constitution must be deemed to be

“myles for the sovernment of courts." Thus, each of the

Srules of the Constitution providing a safeguard either ex-

pressly or impliedly for the "person," including the Fifth,

Mrourteenth, and Ninth Amendments, must be viewed in the

‘came wav. For this reason, the inevitable first task for

‘the Court in this case, where a state asserts the right of

‘the unborn child, as a person, to live, as the basis for

Fsustaining its challenged abortion law, is to determine

“what is the appropriate meaning to be assigned the term

cas

‘constitution in establishing its fundamental safecuards of

the person. The Court must recognize that the Fifth,

Frourteenth, and Ninth Amendments also provide a “rule for

the government of the legislature" of a state in the sense

that the state is entitled and in some instances duty bound

hto take positive, affirmative action to protect the federal

constitutional rights of the persons safepuarded by them,

PSee, e.f., Brewer v. Hoxie School District “lo, 46, 238 F.2d

4] (8th Cir. 1956).

We AAG

Chief Justice “Marshall in the “arbury case pro-

vided the essential principle for approachins the problem

‘of determining the meaning of the term "person" as used in

‘the Constitution. He said:

"That the people have an original risht to estab-

lish, for their future government, such principles

as, in their opinion, shall most conduce to their

own happiness, is the basis on which the whole

American fabric has been erected. The exercise of

this original richt is a verv sreat exertion; nor

can it nor ought it to be frequently repeated.

, The principles, therefore, so established, are

deemed fundamental. And as the authority from

which they proceed is supreme, and can seldom act,

“em

Myerson” expressly or impliedly used by the framerS of the--

SE ES

SPLOT he

MRSA RETNA YN AGEL: ETE DILLEY TELLS RPI ee |

they are designed to be permanent." 1 Cranch at

176.

Of all the principles the people of the United

States established in their Constitution none can be mope

paramount than those designed by them for safeguarding th

civil rights of the individual person. Indeed, so con.

cerned were the people of the United States for provid'n,

these safeguards that it is altogether likely that the Con.

stitution, which did not contain such safesuards in the

form of a Bill of Rights as did the state constitutions,

would not have been adopted by sufficient states unless t)

Federalists, sensing the impending disaster, had not made;

gentlemen's agreement that they would propose and submit ;;

the First Congress in 1789 detailed amendments to establis,

a comprehensive federal Bill of Rights. Both John Adams

and Thomas Jefferson, when they first received news of the

Constitution at their London and Paris ministerial posts,

respectively, agreed that they were very distressed that i;

did not contain a bill of rights providing "for the whole

catalog of civil rights commonly accepted as fundamental ir

America" to guarantee freedom of the person. This agree-

ment was, of course, carried out by the next Congress on

September 25, 1789.

Moreover, it was the “original right" of the

people of the United States to adopt a concept of the per

son for inclusion in and administration of their Constitu

tion as "in their opinion, shall most conduce to their om

happiness," as Marshall stated. It is the meaning and the

purpose of the people who framed, debated, and adopted the

Constitution and its Bill of Rights to safeguard the persa

that must be respected by this Court. Even if many of the

present generation have come to view the religious motiva-

Isee, Robert Allen Rutland, The Birth of the Bill

of Rights: ~_1776-1791. Chapel Hill: “The University of

Tooth Carolina Press, 1955, 119-218.

2td, at 129,

ion, the philosophy of natural rights, and the views of

e person entertained by the framers and adopters of the

vestitution as lackine in validity, this Court is not

ree, because of its dedication and commitment to the rule

‘jaw, to disregard the meaning of the concept of person

ne framers entertained when they inserted it into the

onstitution safeguards of the person. It was their

original right to eles for their future government"

he principles that "in theie opinion" were to be subse-

wentlv treated as "fundamental" and as "designed to be

manent." Citizens may today reject, although with ‘

merhaps great loss of societal direction, the religious

ptivations, philosophy of natural rights, and view of the

srson entertained by the constitutional framers, but thev

snnot avoid or set aside the objective choice made by :

ose framers of the meaning to be given the normative :

oncept of the person placed by them in the Constitution. 4

this Court must respect still today the choice of the

ramers in the First Amendment rule that "Congress shall

ake no law respecting an establishment of religion, or

chibiting the free exercise thereof...," it must also

till respect the rule that "nor shall any person... be

rived of life, liberty, or property, without due process

f law." If we must be very vigilant about judicially

nforcing the requirement that "no law" respecting an

stablishment or religion shall be made, we must also be

ery vigilant about judicially assuring that an rson

tains due. process of law with respect to deprivations of

s life, liberty, or property by action of the state or

ation.

;

LE IE SOT EIU NELLA IF POE TE TE

- Chief Justice Narshall has also provided this

urt with the interpretative theory to implement the basic

proach he laid down for assigning meaning to provisions

the Constitution. In Gibbons v. Ogden, 9 Wheat. 1, 188-

2, while referring to the problem of construction of a

lzuse conferring a power upon Congress, he stated:

’

"As men, whose intentions require no concealment,

generally employ the words which most directly and

aptly express the ideas they intend to convey, the

enlichted patriots who framed our constitution,

-ll-

and the people who adopted it, must be understoy

‘to have employed words in their natural sense, ay

to have intended what they have said, @*, fron

the imperfection of human language, there shoulg

be serious doubts respecting the extent of any

given power, it is a well-settled rule that the

objects for which it was given, especially when

those objects are expressed in the instrument

itself, should have great influence in the con-

struction. We know of no reason for excluding

this rule from the present case."

Precisely the same reasons that commended this rule of oq,

stitutional interpretation to the Court for the purpose of

assigning meaning to a provision sranting power to Congres

commends it even more highly as the basis for assigning

meaning to provisions designed for the safeguarding of te

persons who established the constitution. In Boyd v,

United States, 116 U.S. 616, 635, Mr. Justice Bradley in

the opinion for the Court stated this principle:

",..illepitimate and unconstitutional practices

get their first footing in that wav, namelv: by

silent approaches and slight deviations from legal

modes of procedure. This can only be obviated by

adhering to the rule that constitutional provi-

sions for the security of person and property

should be liberally construed. A close and

literal construction deprives them of half their

efficacy and leads to gradual depreciation of the

right, as if it consisted more in sound than in

substance. It is the duty of courts to be watch-

ful for the constitutional rights of the citizen,

and against any stealthy encroachments thereon,

Their motto should be obsta principiis."

Still another principle of constitutional interpretation

bears even more closely upon the function of this Court in

giving effect to the safepuards of the person which the

people of the United States established in the exercise of

their “original right." This principle was also articu-

lated by this Court in the Bovd case, supra, and has

-]?-

reference to the relevance of conceptions of personal free-

dom entertained by those who framed the provisions of the

Constitution and its first ten amendments. In the Boyd

case, the question was whether a statute which provided for

compulsory production of a man's private papers to be used

in evidence against him in a proceeding to forfeit his

property, was unconstitutional as authorizing an unreason-

Hable search and seizure within the meaning of the Fourth

Manendment. In deciding that the statute was unconstitu-

Ptional, the Court referred to the contemporary conceptions

Fof personal freedom entertained by American statesmen at

the time of the adoption of the Constitution and of the

heirst ten amendments to it. The subject of unreasonable

searches and seizures had been thoroughly canvassed in the

jquarter of a century just preceding their adoption, and

fespecially in the discussion of Lord Camden in the cele-

Mprated case of Entick v. Carrington, 19 Howell, St. Tr.,

21029, Referring to this discussion, Justice Bradley stated

Pfor the Court:

"As every American statesman, during our revolu-

tionary and formative period as a nation, was un-

doubtedly familiar with this monument of English

freedom, and considered it as the true and ulti-

mate expression of constitutional law, it may be

confidently asserted that its propositions were in

the minds of those who framed the Fourth Amendment

to the Constitution, and were considered as suf-

ficiently explanatory of what was meant by unrea-

sonable searches and seizures. ...Can we doubt

that when the Fourth and Fifth Amendments to the

Constitution of the United States were penned and

adopted, the language of Lord Camden was relied on

as expressing the true doctrine on the subject of

searches and seizures, and as furnishing the true

criteria of the reasonable and unreasonable

Character of such seizures?" 116 U.S. at 627, 630.

Putting these three long established and honored

rinciples of constitutional interpretation to work in this

tant case requires this Court to hold that the unborn

nild was clearly within the meaning of the concept of the

-l3-

ane

FAP PSNR IO Me

LEE PEE ATE TIE IAL LD EG TILES ala Baca

—

person adopted by the American statesmen who formulated ti

Constitution and its first ten amendments and that it was

their purpose to have its safepuards of the person applie

by courts and legislatures to the unborn child or foetus

and especially so as to recognize a constitutionally

guaranteed right to life.

James Wilson, who helped formulate, voted for, a

signed the Declaration of Independence, participated in ¢,

Constitutional Convention and signed the proposed Constit,,

tion of the United States, and served as an Associate

Justice of the Supreme Court of the United States had sone

thing to say about the concept of the person,+ This

remarkable Pennsylvania lawyer, member of the Continental

Congress, classical scholar, draftsman of the Pennsylvani;

Constitution, and person chiefly responsible for the adop.

tion of the Constitution of the United States by Penn-

svylvania was also a professor of law at the College of

Philadelphia at the same time he served upon the Supreme

Court of the United States. Steeped in the philosophy of

natural law and well-acquainted with the basic concepts of

those revolutionary times, he was in an especiallwv good

position to articulate the meaning of the concept of the

person generally shared by his fellow citizens and woven

into the sinews of the colonial and state Rills of Rishts

and finally into the Constitution of the United States, |

his law lectures delivered in the winter of 1792, Justice

Wilson stated:

"Persons are divided into two kinds — natural a

artificial. Natural persons are *ormed by the

great Author of nature. ._ Artificial persons are

the creatures of human sagacity and contrivance;

and are formed and intended for the purposes of

government and society.''2

lcharles Page Smith, James Wilson: Founding

Father. Chapel Hill: The University of North Carolina

Press, 1956. 87-88, 246-61, 305.

2The Works of James Wilson, James De‘/itt Andreus,

Fd Chicago: Callaghan and Co., 1896. Vol. II, p. 3.

~14-

SELES NS SI REI ARO AE OH

In this statement Wilson was simply reflecting the

non view of the Constitutional Fathers that the person

s not something subject to man's contrivance, like the

tificial person which is the corporation or the state,

t above and apart from and prior to any construction or . x

ntrivance of man. The person was for the makers of our ;

nstitution a datum, a given, a being created "by the

at Author of nature." The status of person was not

thing to be conferred by the state or even all the

ople of the state. A person simply is and has his being

virtue of an act of creation by God himself — this was

e concept of the person for those who wrote and adopted

e Constitution of the United States.

This concept of the person was Christian in its

igin and in its development. Its meaning had been

aborated long before the period of American constitution-

king even if it had never been woven as securely into the

ric of a legal order as it was to be in 18th Century

erica. Man was deemed to be a composite of body and soul,

e latter having been given to him closely consequent upon

e human event of conception in an act of creation hy "the

ly Creator of human souls: God."1 As Doctor John

therspoon, the sixth president of Princeton University

d signer of the Declaration of Independence, observed and

ught his students:

FRE SERIE ORALE FTE KES

CURES RDP AT

é "Considering man as an individual, we discover the

most obvious and remarkable circumstances of his

nature, that he is a compound of body and spirit."

as the great teacher of American statesmen, John Locke, ;

pt it in the best Christian tradition:

oer

letienne Gilson, The Spirit of Mediaeval Philos-

v. London: Sheed 6 Ward, 1950. 203. A

a ok ae PRE

RPE

2John Witherspoon, Lectures on Moral Philosophy.

inceton: Princeton University Press, 1912. 8.

SHORT RL

Tae

~15~

peek:

"God, I say, having made man and the world, ,,,

directed him by his senses and reason...to the up

of those things which were serviceable for his sy

sistence, and gave him the means of his 'presery,. >

tion'...and therefore had a richt to make use of

those creatures (animals) which by his reason o, ¥

sense he_could discover would be serviceable theyf

unto..." é

No man had greater influence upon the minds of the Constj.}7

tutional Fathers than John Locke. His Second Treatise of

Government was characterized by Sir Freder Pollock as }

Whrobably the most important contribution ever made to f

English constitutional law by an author who was not a la.

yer by profession."“ Beyond this it has been generally [

recognized that "the principles of the American Revolution,

were in large part an acknowledged adoption of the ideas :-—

contained."” In Locke's discussion of paternal, or as he }

preferred to call it, "parental" power, he observes that

"Adam and Eve, and after them all parents were, by

the law of Nature, under an obligation to preserv,

nourish and educate the children they had begotten,

, mot as their own workmanship, but the workmanship

“ of their own Maker, the Almighty, to whom they wer

to be accountable."

ljohn Locke, Two Treatises of Government. Book I,

New York: E.M. Dutton & Co. (Everyman Library) 55.

2sir Frederick Pollock, Essays in the Law. 1922,8),

3yW.F. Carpenter, "Introduction to John Locke, "Two

Treatises of Civil Government, vii.

Locke, Two Treatises, p. 143.

fmens?

OE AIEEE ILE a BALE DLA PLD AEE

———

"The power, then, that parents have over their

children arises from that duty which is incumbent

on them, to take care of their offsprine during

the imperfect state of childhood. ...that duty

which God and Nature has laid on man, as. well as

other creatures, to preserve their offsprinz till

they can be able to shift for themselves..."

| Locke pointed out that although the parental duty

after procreation of children to care for them could not b.

put aside until they could shift for themselves, the nane

‘and authority of a father or indeed any parent over a ch 1d

‘could be quickly lost:

tee tet

Locke was simply making the point of the creat concern -*

litical society for children and its insistence upon

heir protection from and after the act of procreation.

e name and authority of the parent could be lost if that

arent disregarded the very precious value borne by the

"So little power does the bare act of bepfett‘ar

give a man over his issue, if all his care end:

there, and this be all the title he hath to th

name and authority of a father,"

> REAPS PL,

ENGR EE PRE AE FREE Ty Be

were

PILI UNE

ild as a person through the soul created for it by God.

Thus, the foster-father.who rescued and then took care of a

hild who had been exposed by its natural father for the

rpose of letting it die gains the title and authority of

ather and the latter loses it.

Again, in order to emphasize the importance of the

hild, because it is a person created by God at all of its

tages of development, Locke states:

7 "14.

3tq, at 147,

-l7-

locke, Two Treatises, pp 144-145,

ATR ERE LOT

rte

NT nk Sadia a

sehetet®

ner

Sr oe al

RET LT CLIN RT ET BN Ne NE ON Re FRET MEER PD Me rat MERC NRT MMS et itt

"Conjucal societv is made by a voluntary connag

between man and woman and thouch it consists

chiefly in such a comnunion and risht in one

another's bodies as is necessary to its chief en:

procreation, vet it draws with it nutual Support.

and assistance, and a communion of interest, toc,

as necessary not only to unite their care ane

affection, but also necessary to their cormor

offsprine, who have a right to be nourished an¢

maintained by them till they are able to provice

for themselves.

"For the end of conjunction between male and fe.

male being not barely procreation, but the con-

tinuation of the species, this conjunction betuwiy

male and female ought to last, even after procre:.

tion, so long as is necessarv to the nourishnent

and support of the youne ones. ...This rule,,,ty

infinite wise ‘faker hath set to the works of His

hands..."

_foreover, a person, whether a child or an adult, was deene’

superior, ~in a very basic sense to the state and to its la

even its most fundamental law, the constitution. Not only

was the person not a creation of man or of his state, but

the person was before and above the state and its consti-

tution. Locke stated the principle that

“len being,... by nature all free, equal, and in-

dependent, no one can be put ot of this estate

and subjected to the political power of another

without his own consent, which is done by azreein:

with other men, to join and be united into a con

munity for their comfortable, safe, and peaceable

living..."

» at 155i

at 164,

sch of the principal American constitutions and bills of

ishts made this conception of the person and of his rela-

Bon of the person to the state abundantly clear. . The

~erican Declaration of Independence states:

"Ye hold these truths to be self-evident, that all

men are created equal, that they are endowed by

their Creator with certain inalienable rights,

that among these are Life, Liberty, and the pur-

Suit of Happiness....That to secure these rights

Governments are instituted among “en, deriving

their just powers from the consent of the governed,

..."1 [Emphasis added]

e principal American constitutions and bills of rights

so made it clear that while the adult persons were the

rsons from whom the just powers of government were

tually derived by their consent, these adults relative to

eir children, unborn or born, were performing an act not

ly for themselves but also for their children, as

ustees or guardians for their lives, futures, and happi-

eses, according to the Lockeian doctrine. Thus, we see

at the Virginia Bill of Rights states:

"1, That all men are by nature equally free. and

independent, and have certain inherent rights, of

which, when they enter into a state of society,

they cannot, by any compact, deprive or divest

their posterity: namely, the enjoyment of life and

liberty..." | Meer added]

d, as especially pointed out by Alexander Hamilton in his

er No. 84, the preamble of the Constitution of the

ited States states:

Donald Barr, July 4, 1776. New York: Crown

blishers, 1958. 138.

“Robert Allen Rutland, The Birth of the Bill of

site: 1776-1791. Chapel Hill: The University of North

rolina Pre-s, 1955. 231.

-l]9-

a i

~ LAPL LE IIO TR IEERY

SN STL he LEN it LTR EOE A LARD ES ETN

"We THE PLOPLE of the United States,...to secu,

the blessing of liberty to ourselves and our

posterity, do ordain and estgblish this Constit,

tion for the United States."

It is not without significance that Hamilton quoted the

preamble precisely in the form above set out. He was

arguing in this paper that there was no necessity for

inclusion of a Bill of Rights in the original Constituti,§

to safeguard the persons constituting the people of the [|

United States against their representatives in governnen:}

His argument was that these persons, both individually a}

collectively, were the source of the authority and power

their representatives and the latter had been granted no

authority to abridge the fundamental rights of the perso,

such as life, liberty, or property. Thus he states:

"Here, in strictness, the people surrender nothi:

and as they retain everything, they have no nee

of particular reservations (of rights)."? [pare

thesis added]

Thus, by his quotation, Hamilton indicates that he is thiy

ing of the rights not only of adults but also children,

both born and unborn, their "posterity." It is these

rights, he contends, that are not surrendered to the rep-

resentatives of the people.

Richard Henry Lee, who was closely associated wit

Patrick Henry and Thomas Jefferson and introduced the res.

lution in the second Continental Congress for declaring

independence on July 2, that was adopted two days later,

worked vigorously for the addition of a Bill of Rights to

the proposed Constitution. An orator whose associates

compared with Cicero, he perhaps articulated better than

lTfhe Federalist. New York: The lieritage Press,

1945, 575-576.

Td. at 575.

Ee LEA AER IRR Ae A TONER O REE IT

ost of the Constitution Fathers the sense of what thev

ere about when he said on October 12, 1787 in a popular

amptlet widely read in the states:

",..when we are making a constitution, it is to be

noped, for ages and millions yet unborn, whv not

establish...essential rights, which we have justlv

understood to be the rights of \freemen..."1

ali

Dy. John "itherspoon in some of his lectures at

binceton at least as early as 1772:

"Some nations have given paréots the power of life

: and death over their children, and Hobbs insists

that children are the soods and absolute property

of their parents, and that they may alienate them

and sell them either for a time, or for life. But

both these seem ill founded, because they are con-

2 LESAGE HARE GE LONE LEIS

trary to the end of this right, viz. instruction

and protection. Parental right seems in most

cases to be limited by the advantage of the

children,"

BN MEE TG SPIE TELE

re Dr. Witherspoon carries through to the constitution-

taking times, to which he contributed much, the basic

loctrine of Locke about the duty of parents and the right

their children vis-a-vis each other.

Sree Wiat, 7 aad

Thomas Jefferson introduced a bill concerning

ines and punishments in 1779 in the Virginia Legislature.

is interesting that he provided for the penalty of

nging and dissection of the body for the murder of a

ild by its parent, ? In view of the usual Founding Father ‘

pamphlets on the Constitution of the United

ates, Paul Leicester Ford, ed, 314,

2Dr. John Witherspoon, Lectures on ‘ioral Philosophy,

inceton: Princeton University Press, 1912. 84,

3Saul K. Padover, The Complete Jefferson, ilew

rk; Duell, Sloan & Pearce, 1943, 92,

oD»

Ta a eae a ah aaa

: SPREIL YOLEN ES NN GNIS ET SR RNY HER, TONNE i MRR * tote, I

Lick RNS .

view of the child as a being a person from the very momy

of its procreation or begetting by its parents, one woulg

assume that this bill was directed against abortion at an

stage of the development of the child in the womb. Jef.

ferson also showed that he was quite familiar with the ly

of England with respect to abortion as far back as the

Laws of King Alfred. He noted that this law penalized t.

killing both of a pregnant woman and of her child and thy

that law required the payment or weregild not only for th FE

killing of the mother but also for the killing of the

child. He also took the position that despite his es-

pousal of a constitutional safequard for religious free.

dom, the state could not permit churches in their sacred

rites "to murder a child."

Life on’the colonial frontiers involved raids upm §

the early settlements by hostile Indians. The unborn

child was a special target of these raids. The Rev. Jos.

eph Doddridge reported upon the Indian attacks in Westem

Virginia in the latter part of the 18th Century. He

stated that children were the special victims of Indian

vengeance because they could either become warriors or

reproduce the species. With respect to the unborn child,

he reported upon its treatment by the hostile Indians and

showed the special concern of the colonists for such

treatment and what their reaction was: —

"The Indian kills indiscriminately. His object is

the total exterminmaticn of his enemies. It is not

enough that the fetus should perish with the mr-

dered mother, it is torn from her pregnant womb,

and elevated on a stick or pole, as a trophy of

victory and an,object of horror to the survivors

of the slain."

lid. at 935, 945.

2naniel J. Boorstin, The Americans: The Colonial

Experience. New York: Vintage Books, 1958. 347-348.

-22=

e Indian forays and attacks in which these and other

trocities were committed were not isolated instances sel-

repeated. As Boorstin reports:

"The Indian was omnipresent; he struck without

warning and was a nightly terror in the remote

silence of backwood cabins....Every section of the

seacoast colonies suffered massacres. The bloody

toll of the Virginia settlements in 1622, and

again in 1644, was never forgotten in the colony.

..-such nightmares shaped the military policy of

settlers until nearly the end of the 18th century.

...-The apprehension of another visit from the In-

dians, and of being driven back to the detested

fort, was painful in the highest degree, and the

distressing apprehension was frequently realized.

In such colonial warfare all were soldiers be-

cause all lived on the battlefield. ...among

Colonial Americans...war was the urgent defense

of the hearth by hg” Net against an omnipresent

and merciless enemy."

e loss of children in warfare was an especially drastic

ss in colonial America. The colonials placed a very

gh value upon children not only because, according to

eir religion they were persons, but also because they

re badly needed in the emerging nation. As Boorstin

ports:

“Labor and skills were scarce in colonial America;

men had to do many things for themselves simply

because they could not hire others to do them."

jamin Franklin indicated that it was easy for poor

lies to get their children instructed in a trade:

“for the Artisans are so desirous of Apprentices,

lid. at 348-352. [Citing The Rev. Joseph

idridge ]

Te NES AY

that many of them will even give Money to the

Parent, to have Boys from Ten to Fifteen Years

of Age bound Apprentices to them till the Age o;

Twenty-one; and many poor Parents have, by the

means, on their Arrival in the Country, raised

Money enough to buy Land sufficient to establis,

themselves, and to subsist the rest of their

Family by Agriculture."

Thus, colonial Americans generally down through the Perio

of the making of the Constitutuion not only revered ang §

respected the unborn child as a person created by God by §

saw in the unborn an addition to the family who, after

birth, could be the way to meet the labor scarcity on th

farm and frontier and to enable the family, particularly

the poor one, to establish itself firmly in the cities,

The English law concerning abortion discussed by

Jefferson as previously noted, had existed since at least

the time of King Alfred with both secular and ecclesiasti.

cal laws being directed at the problem although by dif-

ferent kinds of sanctions. The Leges Henrici of the tim

of Henry I reveals that the ecclesiastical, laws provided

for a lighter penalty if a woman deliberately destroyed

her unborn child within the first forty days following

conception and/’a heavier one if she destroyed her unborn

child after that period. The common law courts also

handled cases of abortion although they exercised a less

extensive jurisdiction than that of the ecclesiastical

courts. The rule applied by the former was primarily con

cerned with abortion of a child that was quick or able to

stir in the mother's womb. Blackstone in 1765 observed

in his Commentaries:

"l.Life. This right is inherent by nature in

every individual, and exists even before the

lid. at 194.

oDite

the child is actually born.

Rights of Unborn Child. The offence of abortion

of a quick child is not murder, but homicide or

manslaughter. An infant in ventre sa mere is

supposed in law to be born for many purposes. It

is capable of having a legacy made to it. It may ie

have a guardian assigned to it, and may have an é

estate limited to its use, and to take afterwards s

by such limitation, as if it were then actually :

born." §

‘this recognition of the unborn child as a person before é

the law is highly significant in view of the fact that as *

‘RBoorstin reports, *

" .oey Tio 3

"Blackstone's Commentaries had sold nearly as e

many copies in America as in England...he had

provided for the first time the means by which

any literate person could grasp the large out- ;

lines of his legal tradition. ...was a godsend to 3

the rising American, to the ambitious backwoods- :

man and sets scot politician."2 ;

Min 1803, only a little over a decade after the adoption of é

the Constitution of the United States and its first amend- £

ents, the English Parliament adopted a statute which ‘

haracterized as felonies abortions performed either be- 3

ore or after a woman was “quick with child", 43 Geo. é

III c. 58. The former type of abortion was made punish- e

ble by fine, imprisonment, and other lesser penalties. ;

Nhe latter type was made punishable by death. The enact- 3

ent of this statute may have been a part of the movement z

1 ¢

Blackstone's Commentaries on the Law. Bernard

.Gavit, Ed. Washington: Washington Law Book Co., 1941. 70

PeQ NEO Hoe

Boorstin, supra, at 202. *

~-25—<

ALIS PD TNE EEE SS IS

LOS CLEA ARE PALL NOSE REL DDE BLES, “PA OLE BS i ade

of replacing the jurisdiction of the ecclesiastical cour,

which covered the offense of abortion in a similar way,

by enactment of statutes defining crimes to be handled by

the common law courts.

We have established that the unborn child or

foetus was considered by the Founding Fathers and their

fellow citizens to be a person; a subject of rights a-

gainst its parents from and after their act of begetting

or procreating the child until it was born and thereafter

until it could shift for itself; a person who was create

by the act of God in infusing it with a soul consequen:

upon the act of procreation; a person, like its parents,

endowed by God with unalienable rights to life, liberty

and pursuit of happiness and the qualities of being free,

equal, and independent; and a person who could not be

deprived of these rights and qualities by their parents

through a compact or constitution or any other means,

This concept of the person was drawn by colonial American;

from their predominantly Christian background; from polit.

ical philosophers and especially from their principal

mentor in political philosophy, John Locke; from minister;

and educators like Dr. John Witherspoon of Princeton

University; from legal scholars like Blackstone; and

especially from their intuition as reinforced by their

difficulties and opportunities in dealing with a hostile

but bountiful environment.

Since this was the colonial concept of the person,

the Founding Fathers who framed the Constitution and their

fellow citizens who adopted it must be understood to have

employed the word "person" in the constitutional safe-

guards of the person in what was for them its eminently

"natural sense" so as to include the unborn child or

foetus. This sense reinforces and supports their goal

of wanting to ordain and establish a Constitution not

only for themselves but also for their posterity and to

lSee, Bernard M. Dickens, Abortion and the Law,

Bristol: MacGibbon & Kee, 1966. 22.

-2?6=

ecure from the action of wilful men "certain inherent

ights, of which, when they enter into a state of society,

they cannot, by any compact, deprive or divest their pos-

tority: namely, the enjoyment of life and liberty." It

gas the “original right" of the Founding Fathers to adopt

uch a meaning for the term "person" and to impress it on

ithe Constitution. If effect is to be given to the foun-

Hstional criterion, established by Marbury v. Madison,

supra, for assigning meaning to a constitutional provision-

e natural sense in which words are employed and the

lgense that will promote the objects expressed in the Con-

stitution itself - this Court must hold that the unborn

*hild or foetus is a person within the constitutional safe-

wards of the person.

Similarly, if effect is to given to the pre-

ymption for constitutional interpretation established

' Boyd v. United States, supra, that a constitutional

rovision for the security of the person should be lib-

rally construed, then the term "person" should certainly

B extended to cover the unborn child or person, there

being so many other good reasons for this construction.

Finally, if effect is to be given to the third

sic principle for constitutional interpretation, also

ticulated in the Boyd case, supra, that contemporary

onceptions of personal freedom are to be regarded and

articularly those framed in the leading expositions of

hose conceptions, then the term "person" in the Con-

itution must clearly be held to cover the unborn child

foetus. The leading expositions were contained in

pcke's Second Treatise of Civil Government, supra,;

ackstone's Commentaries on the Law, supra; the Virginia

ll of Rights, and Hamilton's Paper No. 84 in the

deralist, supra. All of these highlighted the position

the unborn child as a person and the duty of parents

ni political society to provide for its care. The

tter two expositions extended this duty to those who

ke and administer constitutions.

C. Regard for the Context of the Constitution, in

the sense of its whole framework in relation to

Br, Yo

NORRIE APONTE LLELPMAEIY OET IIE, SARL IS ENE INN LEAS PEAS SILL AE SHALE II

* SPE

SORPTION ARE

NATE EES

So RRR aks gS

sey

ee eet et Sa eee

LEGON MSL AIT PREYS Paar

its various parts and especially those PLOVision,

providing safeguards for the person, such as the

Fourth, Fifth, Ninth and Fourteenth Amendments,

argues strongly for holding that an unborn chi},

or foetus is a person within the meaning of

those safeguards.

1. The concept of context in constitutional ip.

terpretation.

The value of an examination of the context in

which a statutory provision is set for determining the

appropriate meaning to be assigned to it has long been

recognized. Justice Frankfurter, in a dissenting opinion,

in United States v. Monia, 317 U. S. 424 at 431, (1942),

gave classic formulation to this value:

"A statute like other living organisms, derives

significance and sustenance from its environment,

from which it cannot be severed without being

mutilated. Especially is this true where the

statute, like the one before us, is part of a

legislative process, having a history and a pur-

pose. The meaning of such a statute cannot be

gained by confining inquiry within its four cor-

ners. On the historic process of which such leg.

islation is an incomplete fragment--that to which

it gave rise as well as that which gave rise to

it-- can yield its true meaning."

Since McCulloch v. Maryland, 4 Wheat. 316, it has been

well established that the context in which a term is used

in the Constitution must be closely regarded in assigning

meaning to it. In construing the word "necessary" in the

"necessary and proper" clause of Article I, section 8 of

the Constitution, Chief Justice Marshall stated that;

"...in its construction, the subject, the context

the intention of the person using them, are allt

be taken into view."' 4 Wheat. at 407.

recent example of the context of the Constitution for,

this purpose was provided in Duncan v. State of Louisiana,

91 U. S. 145 (1968), where this Court pointed out that,

‘n construing a particular constitutional safeguard of

he person, such as the Due Process Clause of the Four-

eenth Amendment, "it has looked increasingly to the Bill

of Rights for guidance..." rl

demonstrated by Chief Justice Marshall's opinion for

the Court in the McCulloch case, the concept of context

includes not only the immediate context of a provision

ose meaning is drawn in question but also the more re-

mote context of the whole Constitution, including other

rts likely to throw light upon the usage in that pro-

ision.

2. The unborn child has a @istitutional right

to application of state common law in

diversity of citizenship actions at common

law under Article III and to a jury trial

under the Seventh Amendment.

As construed by this Court Article III, Section 2

f the Constitution, which extends the jurisdiction con-

erred upon the courts of the United States to contro-

ersies between citizens of different states, necessarily

rovides extensive protection for the unborn child or

oetus. In Erie Railroad Co. v. Tompkins, 304 U. S. 64

1938), this Court held that Article III of the Constitu-

ion required federal courts exercising jurisdiction in

iversity of citizenship cases to apply as their rules of

cision the law of the state in which they sit, un-

itten as well as written, except in matters governed by

e Federal Constitution or by Acts of Congress. Mr.

stice Brandies, in the opinion for the Court, stated

t the prior practice of the courts in disregarding

e decisional law established by a state's highest court

favor of a federal general common law, was quoting

Dickens, Abortion, pp 148.

o20.

PEE FRR FINS Ga tT |

WEEAY

eee 1 ee ee ee ee ee ee

Ry ee EAP PR OEE PEI ip A GM NIE

Mr. Justice Holmes:

"an unconstitutional assumption of powers by

courts of the United States which no lapse of

time or respectable array of opinion should

make us hesitate to correct."

As a result of\this decision, the interpretation of tha

Rules of Decision Act of 1789 established by Swift v.

Tyson, 16 Pet. 1,.to the contrary was overruled and the

constitutional required interpretation substituted for

it. While Erie did not involve a plaintiff who was an

unborn child or who was representing an unborn child at

the time of the injury which occasioned the suit, it set

the stage for application by federal courts of the exten.

sive state tort law, property law, and other law pro-

tecting the rights of unborn children. This law, as wil]

be seen in Point one, provides extensive protection for

the rights of unborn children. Thus, Article III of the

Constitution of the United-States, the Rules of Decision

Act of 1789, and the decision in Erie, supra, now operate

together to provide the unborn child with the constitu-

tional status of a person in trials at common law in

federal courts in cases where state law in applicable be-

cause state law accords that status to that child and that

law, whether common law or statute law, is constitutionally

required to be applied by these courts.

It would be a strange and bizarre constitutional

doctrine that would provide protection for the unborn

child as a person for the purpose of applying state law

in its behalf in diversity of citizenship cases in federal

courts under Article III of the Constitution but would

deny protection for that same child in the same courts

for the purpose of applying the Fifth, Fourteenth, and

Ninth Amendments of the same document in a case in which

a state asserted the constitutional validity of a statute

under those Amendments designed as a reasonable protection

of the constitutional right of that child, as a person,

~,,

Aid. at 79.

, its life vis-a-vis its mother or parents. This Court

ould avoid an interpretation of the concept of person

wich would create such a violent conflict within the

pnstitution between Article III and the consitutional

nfeguards of the person contained in the federal Bill

f Rights, particularly the Fifth and Ninth Amendments,

gin the Fourteenth Amendment. It has refused to reach

nterepretations. As indicated in the McCulloch, Monia,

,d Duncan cases, supra, this Court has avoided such

sesults and read the provisions of the Constitution as

sonstituting one harmonious whole, with the purpose and

saning of one part being treated as providing illumina-

4on for the construction of its other parts.

Indeed, once this Court reached its decision in

He Erie case, it became clear that one of the essential

ovisions of the federal Bill of Rights, the Seventh

endment, must be construed to accord the unborn child or

s representative an important procedural right at common

sw. This Amendment provides:

"In suits at common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved,

and no fact tried by jury shall be otherwise

re-examined in any Court of the United

States, than according to the rules of the

common law."

t, in Erie, this Court decided that there was no federal

eral common law but that in diversity of citizenship

ses the rules for decision were constitutionally required

>be the law of the state in which its sits, including both

e statutory law and the decisional law of state courts.

us, where, as is universally the case, the unborn child

given various substantive rights under the common law

statutes of a state and that child invokes the diversity

citizenship jurisdiction of a federal court, it would

eminently clear that not only must that court apply

e state common or statute law in question under Article

1, but also where the protection of state common law is

-3l-

8 SBI LE IN It PRPC BML TN RE SRY EEL I Ot “ > YOGA ABE Ly V0 SSD AEA

BE LRRIT POOLE OEE EME ED SLL AE RLWC I LTTE LI ENO RL FREE IPE

CRS RAPER TES ee

HEL

BFP UES (RATE DR DAL. TERE aM hE EEL

invoked, it must accord the right of trial by jury to that

child or its representatives under the Seventh Amendment,

Both that Amendment as a matter of explicit requirement a,

Article III as construed by this Court in Erie make "the

rule of the common law" the rule for decision-making

purposes by federal courts, where the suit is at common

law. Thus,*the decision in Erie necessarily implies, iy

light of state common law according substantive rights t

unborn children, that these unborn children must be reco. f

nized to be persons within the meaning of the constitutio.}

al safeguard of the person contained in the Seventh Amenj.

ment guaranty of a jury trial in suits at common law.

In view of this Court's decisions in the Duncan

case, supra, and like cases, the fact that the unborn chij

must be recognized to be a person within the meaning of ty

Article III guaranty of the application of state common lx

in diversity of citizenship cases and within the meaning ¢

the Seventh Amendment guaranty of a jupy trial in such

cases must surely mean that this Court will give the sam

scope to the concept of person, as including the unbom

child, in administration of the Due Process and Equal

Protection Clauses of the Fourteenth Amendment. Moreover,

since the unborn child must be treated as a person within

the meaning of the Seventh of the ten Amendments contained

in the federal Bill of Rights as well as within the meaniy

of the Due Process and Equal Protection Clauses of the

Fourteenth Amendment, it seems clear that this Court mst

also hold that the unborn child must be treated as_a pers

within the meaning of any other Amendment of the Bill of

Rights in which the protection provided is relevant to the

protection of the interests of the unborn child. This

would obviously include the Due Process Clause of the

Fifth Amendment, the Ninth Amendment, and probably also,

the Fourth Amendment protection of "persons against

unreasonable . . . seizures."'" Construction of the concept

of person in all of these Amendments must be the same sinc

the federal Bill of Rights was adopted, as previously

indicated, as an integral package proposed by. the

Federalists for the better protection of many fundamental

rights of the person after the framers recognized that

adoption of the Constitution had become doubtful due to it

lack of any guaranteés of these rights.

ETD DE TEPER ADEE SP OR PS 2 teegghwer. a tee ay An og tana

In light of the above considerations it must be

concluded that the Fourth, Fifth, Ninth, and Fourteenth

Amendments must be construed to provide guarantees for the

protection of the unborn child as a person. Any other

holding would be so to sever them from their environment

in the whole Constitution and from historical development

of the concept of the person at the time of its adoption as

to mitilate their “significance and sustenance."

3. The Citizenship Clause of the Fourteenth

Amendment recognizes the unborn child as

a person, who, when born, obtains the

further status of a citizen. The unborn

child has the right to protection of its

’ prospective status as a citizen under the

Citizenship Clause of the Fourteenth

Amendment.

;

The first sentence of Section 1 of the Fourteenth

- Amendment provides :

"All persons born . . . in the United States, ;

and subject to the jurisdiction thereof, are i

citizens of the United States and of the

State wherein they.reside."

Section 1 of the Fourteenth Amendment was drafted by

Representative John A. Bingham of Ohio.* The debates

concerning the adoption of the Fourteenth Amendment

demonstrates the continuity in the conception of the person

as between the times of, the American Revolution and those :

of the post-Civil War period. The view of the person as an ‘

act of creation by God when he infuses a soul into the

unborn child or foetus upon its being conceived is expressed

by the draftsman of Section 1:

er aig 97a al a acl

"By that great law of ours it is not to be :

inquired whether a man is 'free' by the laws é

of England; it is only to be inquired is he

Ithe Reconstruction Amendments' Debates. Alfred &

Avins, Ed. Virginia, Richmond: Virginia

+- Commission on Constitutional Government, 1967...

760. . '

. ny &

LEO ETERS RT TE, EET TED ER oT ee NS -.

a man, and therefore free by the law of

that creative energy which breathed into

his nostrils the breath of life, and he

became a living soul, endowed with the

rights of life and liberty. ... Every

man is entitled to the protection of

American law, because its divine spirit

of equality declares that all men are

created equal ".1

Representative Andrew J. Rogers of New Jersey

emphasized the two types of right being spoken to by the

Civil Rights Bill under discussion in March 1966:

"There are only two kinds of right: one

is that which a man acquires from the

municipal laws. There is another right ~«

which God gives us, the right of self-

defense, the right to protect our lives

from invasion by others. There are no

other rights but the rights of nature

and the great civil rights. wn

One of the central purposes of the Citizenship

Clause of Section 1 of the Fourteenth Amendment was to make

it certain that members of the Negro ethnic group as well

as every other class of person obtained the political right

of citizenship when born in the United States to add to

their natural rights that they were considered to have

received at conception from God. A common view of the

members of Congress in 1866 was expressed by Representative

William Lawrence of Ohio:

"This clause is unnecessary, but neverthe-

less proper, since it is only declaratory

lid. at 274.

2id. at 166.

ETE rere Ase Te

of what is the law without itl

The most significant. aspect of Section 1 of the

Fourteenth. Amendment was to reinforce the rights of the

yerson by conferring upon the "person born . . . in the

inited States" the political right of citizenship and by

aking it incumbent upon the states to respect the natural

ights of the person. In reinforcing the natural rights

f the-person vis-a-vis the states, the overriding purpose

as to give the concept of person the widest possible

Fcoverage. As stated by Senator Arthur I. Boreman of West

; irginia:

"This, you will see, sir, is not confined

to citizens of the United States, but it

includes every person that is found within

these States, and guarantees to all life,

liberty, and property, and equal protec-

tion of the laws."" .. . So that while,

before this amendment, any class of persons

in this country over whom the protection of

the Constitution of the United States was

not extended, there cannot now be any

_ longer any question on that subject."

The above extracts from the debates concerning the

ourteenth Amendment and Civil Rights legislation in the

ost-Civil War period, which are typical, demonstrate not

ly the continuity of those times with the times of the

merican Revolution so far as the concept of the person as

cluding the unborn child is concerned, but also manifest

purpose to confer citizenship upon any person upon his

irth and to give the concept of person the widest possible

pplication in the event there "was any question whether

here were any class of person in this country over whom

he protection of the Constitution of the United States was

ot extended . . ."" particularly, in applying to the states

bill of rights comparable to that applicable to the

ederal government.

Pelt 3

SPL PLE LEE PEEL ODI |

ARTO NLS ELON SPE SELLY LELIVEDI IL LOE

SANT : POLI AEA EN MRE OEY PELE po SONU A AE DS —

Due to its origin and purpose, the Citizenship

Clause of Section 1 of the Fourteenth Amendment must be

viewed as referring to unbor children, among others, when

it speaks of "[A]1l1 persons born . .. in the United States

and subject to the jurisdiction thereof. . . ."- The unbom

child is the "person" before birth who, by virtue of being

"born" in the United States, becomes a citizen of the United

States. In what sense could an unborn child be in any

substantial sense less a "person" 8 minutes, 8 weeks, or 8

months before birth than at the moment of birth or some

equivalent time thereafter? The child was, in the view of

the person generally accepted at the time of the adoption

of the Constitution and of the Fourteenth Amendment, as

much a person before birth as after. Its natural right to

life came to it, as again expressed by the draftsman of

Section 1, by virtue of the fact of creation of its soul by

God.

But if the unborn child is a person included within

the concept of the person utilized in the Citizenship Clause

of the Fourteenth Amendment, surely the unborn child must

be recognized under this clause to have the right to claim

protection from the federal courts for its prospective

status when born, of citizenship. Surely, also, the state

in which it is present must have the right to enact statute

law designed to protect that prospective status of the

unborn child also. The Citizenship Clause speaks of two

forms of citizenship: a citizenship of the United States

and a citizenship of the State where the person resides.

The State wherein an unborn child resides has a very special

reason, aside from its general interest in protecting

persons in the enjoyment of their fundamental rights, for

protecting the life of the unborm child. That child is a

prospective citizen of that State. It is greatly needed by

the State and the child greatly needs the State.

If the unborn child cannot obtain the protection of

its prospective status as a citizen under the Fourteenth

Amendment from federal an@ state courts and the state

legislatures, citizenship of the United States and of a stat

is a very precarious right. Next to the right to life, the

right to citizenship ranks very high in the hierarchy of

- 36-

rights of the person. That was the judgment of the common

law and it was the judgment of those who drafted and adopt-

ed the Fourteenth Amendment. In general, there can be no

itizenship attained by birth unless the right to life of

the unborn child is protected. No unborn child can attain

its citizenship unless its life is protected from and after

the moment of its conception until the moment of birth

gainst action that will certainly destroy it. Thus,

otection of the right of the "person born" in the United

States to be a citizen of the United States surely cannot

be confined only to the period beginning with birth. If

that right is to be effectively protected, the unborn child

st be recognized to possess a prospective right to citi-

zenship, a right contingent only upon successful completion

of the process of birth from a mother living in the United

States.

- The matter may be viewed in another light. We are

ccustomed to speaking of the prospective jurisdiction of

ourts and the necessity they are sometimes under of acting

to preserve that jurisdiction. We also speak of the pros-

ective jurisdiction of administrative agencies and the

ecessity for seeking the aid of courts to preserve the

tatus quo or rights pending the completion of an admini-

trative action. See, e.g., Scripps-Howard Radio, Inc. v.

cC, 316 U.S. 4 (1942); Board of Governors of Federal

eserve System v. Transamerica Corp., 184 F.2d 311

(C.A. 9, 1950) cert. denied, 340 U.S. 883 (1940); West

india Fruit and Steamship Co. v. Seatrain Lines, 170 F.2d

75 (C.A., 1948); Public Utilities Commission of District

e-w¥ EC ee . -

1954). If courts can act to preserve their prospective

jurisdiction over such matters as proceedings before ad-

inistrative agencies and to preserve the jurisdiction of

dministrative agencies over the subject matters committed

o their care, they can and ‘should act to protect their

wn prospective jurisdiction over unborn children who,

en born, are entitled to ask the courts to vindicate

heir rights to citizenship, e.g., their privileges or

immunities as citizens of the United States against state

-37-

of Columbia v. Capital Transit Co., 214 F. 2d 242 (D.C. Cir.

ATER Up RE RN

laws that abridge them as protected by the Fourteenth

amendment and their entitlement to all privileges and

immunities of citizens of the several states as pro-

tected by Section 2 of Article IV.

4. The concept of property utilized in the Due

Process Clauses of the Fifth and Fourteenth

Amendments has reference primarily to the

concept of property in state law. Thus, to

the extent that state law of property recog.

nizes that the unborn child has property

rights, the Due Process Clause of these

Amendments protects the unborn child as a

person. Similar protection for the life

and liberty of the unborn child cannot

rationally be denied under these Amendments,

As demonstrated in Sterling v. Constantin, 287 U5

378 (1932), the concept of property contained in the Due

Process Clause of the Fourteenth Amendment has primary

reference to the law of states under which rights to

property are created. The Court observed in this case:

"The existence and nature of the complainants’

rights are not open to question. Their owner-

ship of the oil properties is undisputed." Id. at

396.

The complainants in this case were owners of interests in

oil and gas leaseholds in the State of Texas, interests

that had been acquired pursuant to the law of property of

this state. The same principle must necessarily govern

administration of the Due Process Clause of the Fifth

Amendment with respect to property rights arising under

state law.

The common law in England and in this country has

long since recognized the right of an unborn child or

foetus to take by inheritance, subject to the event of

subsequent birth:

RSP LAT AALS METIS IP 0 PRAIA he AOU cw = Bred ite ee ee ee 74

"An intestate's posthumous child is considered in

being and will inherit just as if he had been

born in the intestate's lifetime ...(T)his was

: the common law rule with respect to both realtv

| ‘and personalty...(A) posthumous child may recover

his share of the father's land from a bona fide

| purchaser obtaining title through a judicial part:-

tion sale."

BAF

—

SRT

In Texas a child en ventre sa mere is held in-

cluded among those children in being at the death of the

testatrix who are to take under her will. See James v.

ames, 174 S.W. 47 (Tex. Civ. App., 1914. ) By statute in

exas, when a posthumous child is unprovided for by

ettlement and pretermitted by his father's last will and

estament, he succeeds to the same portion of the father's

state as he would have been entitled if the parent had

ied intestate.

Sie c a

As early as 1795, English courts recognized the i

gights of the unborn chi ld in property law. In Doe v. &

larke, 2 H.B1. 399, 126 Engl Rep. 617 (1795), the court

ld that the description in a devise to "children living

t the time of his (the life tenant's) decease" included

born children. American courts utilized the same ap-

roach. In Hall v. Hancock, 15 Pick, 255 (Mass., 1834,

ief Justice Shaw held that an unborn child fell within

e meaning of a bequest to grandchildren "living at

decease." In the case of La Blue v. Specker, 358 Mich.

8, JOON. W. 2d 445 (1960), an unborn illegitimate

ild was held to be a child or "other person" having

tanding to bring suit under a dram shop act, for the

ath of his father, which had occurred before the child's

irth. The Court stated:

‘Atkinson on Wills (2nd ed. 1953) 75

4 -

“See, Vernon's Annotated Texas Statutes, Probate

de, Section 66.

~39~

property at this point to remember the admonition Justig

Gray addressed to other members of: the New York Court of

Appeals in his dissent filed in the case of Roberson vy,

Rochester Folding Box Co., 171 N.Y. 538 (Ct. App. N.Y.,,

; <r. NE iirngte SB < einai

"For certain purposes, indeed for all beneficja)

purposes, a child en ventre sa mere is to be cg.

sidered as born.... It is regarded as in esse |

for all purposes beneficial to itself, but not yf

another....Formerly, this rule would = be ap-

plied if the child's interests would be injured

thereby, ...but, for purpose of the rule against

perpetuities such a child is now regarded as a

life in being, even though it is prejudiced by

being considered as born.... Its civil rights ar,

equally respected at every period of gestation,"!

It is important in considering the concept of

1902).

He stated:

"Property is not, necessarily, the thing itself,

which is owned; it is the right of the owner in

relation to it. The right to be protected in one’

possession of a thing, or in one's privileges,

belonging to him as an individual, or secured

to him as a member of the commonwealth, is proper.

ty, and as such entitled to the protection of the

law. The protective power of equity is not exer-

cised upon the tangible thing, but upon the right

to enjoy it; and, so, it is called forth for the

protection of the right to that which is one's

exclusive possession, as a property right ."2

The majority's forgetting of this fundamental concept of

the person as being at the center of even the concept of

ly Bouvier, Law Dictionary, p. 1038

254.

wtOn

eee SE OV AM AE TELE A OPE SETAC ABBE AON whew eA ae ALI DE ROGER NT ME I

"An intestate's posthumous child is considered in

being and will inherit just as if he had been

born in the intestate's lifetime ...(T)his was

the common law rule with respect to both realty

and personalty...(A) posthumous child may recover

his share of the father's land from a bona fide

purchaser obtaining title through a judicial part:-

tion sale."

| In Texas a child en ventre sa mere is held in-

cluded among those children in being at the death of the

testatrix who are to take under her will. See James v.

ames, 174 S.W. 47 (Tex. Civ. App., 1914.) By statute in

exas, when a posthumous child is unprovided for by

Settlement and pretermitted by his father's last will and

testament, he succeeds to the same portion of the father's

estate as he would have been entitled if the parent had

died intestate.

As early as 1795, English courts recognized the

sights of the unborn chi 1d in property law. In Doe v.

larke, 2 H.BlL. 399, 126 Engl Rep. 617 (1795), the court

eld that the description in a devise to "children living

t the time of his (the life tenant's) decease" included

born children. American courts utilized the same ap-

roach. In Hall v. Hancock, 15 Pick, 255 (Mass., 1834,

ief Justice Shaw held that an unborn child fell within

he meaning of a bequest to grandchildren "living at

decease."" In the case of La Blue v. Specker, 358 Mich.

58, 100 N. W. 2d 445 (1960), an unborn illegitimate

ild was held to be a child or "other person" having

tanding to bring suit under a dram shop act, for the

eath of his father, which had occurred before the child's

irth. The Court t d:

Istkinson on Wills (2nd ed. 1953) 75

2See, Vernon's Annotated Texas Statutes, Probate

pde, Section 66.

-39~-

’

eet

ERAN ELLA NL ETL LY

ae Oy a bi tale nceass hake iiaded ined al

property at this point to remember the admonition Justice

Gray addressed to other members of the New York Court of

Appeals in his dissent filed in the case of Roberson v,

Rochester Folding Box Co., 171 N.Y. 538 (Ct. App. N.Y.,

"For certain purposes, indeed for all beneficia)

purposes, a child en ventre sa mere is to be cop.

sidered as born.... It is regarded as in esse

for all purposes beneficial to itself, but not to

another....Formerly, this rule would not be ap.

plied if the child's interests would be injured

thereby, ...but, for purpose of the rule againgt

perpetuities such a child is now regarded as a

life in being, even though it is prejudiced by f

being considered as born.... Its civil rights ar, §

equally respected at every period of gestation,"!

It is important in considering the concept of

1902).

The majority's forgetting of this fundamental concept of

the person as béing at the center of even the concept of ©

He stated:

"Property is not, necessarily, the thing itself,

which is owned; it is the right of the owner in

relation to it. Thevright to be protected in one!

possession of a thing, or in one's privileges,

belonging to him as an individual, or secured

to him as a member of the commonwealth, is proper-

ty, and as such entitled to the protection of the

law. The protective power of equity is not exer-

cised upon the tangible thing, but: upon the right

to enjoy it; and, so, it is called forth for the

protection of the right to that which is one's

exclusive possession, as a property right ."'2

1} Bouvier, Law Dictionary, p. 1038

214,

-40Q-

tear LL an A aidan adel sehen Ree kon oleae

"An intestate's posthumous child is considered in

being and will inherit just as if he had been

born in the intestate's lifetime ...(T)his was

the common law rule with respect to both realty

and personalty...(A) posthumous child may recover

his share of the father's land from a bona fide

purchaser obtaining title through a judicial part:-

tion sale." ,

}

;

‘

In Texas a child en ventre sa mere is held in-

luded among those children in being at the death of the

testatrix who are to take under her will. See James v.

anes, 174 S.W. 47 (Tex. Civ. App., 1914.) By statute in

exas, when a posthumous child is unprovided for by

ettlement and pretermitted by his father's last will and

estament, he succeeds to the same portion of the father's

state as he would have been entitled if the parent had

ied intestate.

As early as 1795, English courts recognized the

ights of the unborn child in property law. In Doe v.

larke, 2 H.B1. 399, 126 Engl Rep. 617 (1795), the court

eld that the description in a devise to "children living

t the time of his (the life tenant's) decease" included

born children. American courts utilized the same ap-

roach. In Half v. Hancock, 15 Pick, 255 (Mass., 1834,

ief Justice Shaw held that an unborn child fell within

he meaning of a bequest to grandchildren "living at

decease." In the case of La Blue v. Specker, 358 Mich.

58, 100 N. W. 2d 445 (1960), an unborn illegitimate

ild was held to be a child or “other person" having

tanding to bring suit under a dram shop act, for the

ath of his father, which had occurred before the child's

irth. The Court stated:

latkinson,on Wills (2nd ed. 1953) 75

2See, Vernon's Annotated Texas Statutes, Probate

de, Section 66.

~39-

—

e AEF SEI i i a a

eG) To Rar ee *

BRS ap ES TROT

SOM ALES YAN MOODLE te) RD TERIA: ohh rie ates iad

"For certain purposes, indeed for all beneficja)

purposes, a child en ventre sa mere is to be cq.

sidered as born.... It is regarded as in esse

for all purposes beneficial to itself, but not y

another....Formerly, this rule would not be ap.

plied if the child's interests would be injured

thereby, ...but, for purpose of the rule against

perpetuities such a child is now regarded as a

life in being, even though it is prejudiced by }

being considered as born.... Its civil rights a, f

equally respected at every period of gestation,"

It is important in considering the concept of

property at this point to remember the admonition Justicg

Gray addressed to other members of the New, York Court of

Appeals in his dissent filed in the case of Roberson v,

Rochester Folding Box Co., 171 N.Y. 538 (Ct. App. N.Y,,

1902). He stated:

"Property is not, necessarily, the thing itself,

which is owned; it is the right of the owner in

relation to it. The right to be protected in one'

possession of a thing, or in one's privileges,

belonging to him as an individual, or secured

to him as a member of the commonwealth, is proper.

ty, and as such entitled to the protection of the

-law. The protective power of equity is not exer-

cised upon the tangible thing, but upon the right

to enjoy it; and, so, it is called forth for the

protection of the right to that which is one's

exclusive possession, as a property right ."'2

The majority's forgetting of this fundamental concept of

the person as being at the center of even the concept of

ly Bouvier, Law Dictionary, p. 1038

-40-

"An intestate's posthumous child is considered in

being and will inherit just as if he had been

born in the intestate's lifetime ...(T)his was

the common law rule with respect to both realty

and personalty...(A) posthumous child may recover

his share of the father's land from a bona fide

tion sale."

: In Texas a child en ventre sa mere is held in-

rluded among those children in being at the death of the

estatrix who are to take under her will. See James v.

anes, 174 S.W. 47 (Tex. Civ. App., 1914.) By statute in

exas, when a posthumous child is unprovided for by

ettlement and pretermitted by his father's last will and

estament, he succeeds to the same portion of the father's

state as he would have been entitled if the pateet had

ied intestate.

As early as 1795, English courts recognized the

fights of the unborn chi ld in property law. In Doe v.

larke, 2 H.B1. 399, 126 Engl Rep. 617 (1795), the court

id that the description in a devise to "children living

t the time of his (the life tenant's) decease" included

born children. American courts utilized the same ap-

oach. In Hall v. Hancock, 15 Pick, 255 (Mass., 1834,

ief Justice Shaw held that an unborn child fell within

e meaning of a bequest to grandchildren "living at

decease." In the case of La Blue v. Specker, 358 Mich.

8, JOON. W. 2d 445 (1960), an unbern illegitimate

ild was held to be a child or "other person" having °

anding to bring suit under a dram shop act, for the

ath of his father, which had occurred before the child's

irth. The Court stated:

latkinson on Wills (2nd ed. 1953) 75

2See, Vernon! 's -Annotated Texas s Statutes, Probate

de, Section 66.

purchaser obtaining title through a judicial part:-

at NASER

5 IPN IST

PEASE FN SE

PARP

PAROLES EO MORRIS IST

LIGNANS ee ‘ a ork ny iste ORI RA SPN eS A TE A ETE TT ONT

"For certain purposes, indeed for all beneficia) F

purposes, a child en ventre sa mere is to be em. >

sidered as born.... It is regarded as in esse q

for all purposes beneficial to itSelf, but not to q

another....Formerly, this rule would not be ap.

plied if the child's interests would be injureg

thereby, ...but, for purpose of the rule against

perpetuities such a child is now regarded as a

life in being, even though it is prejudiced by

being considered as born.... Its civil rights ay, }

equally respected at every period of gestation,"!

It is important in considering the concept of

property at this point to remember the admonition Justicg —

Gray addressed to other members of the New York Court of

Appeals tm his dissent filed in the case of Roberson v,

Rochester Folding Box Co., 171 N.Y. 538 (Ct. App. N.Y.,

1902). He stated:

"Property is not, necessarily, the thing itself,

which is owned; it is the right of the ownerin }

relation to it. The right to be protected in one

possession of a thing, or in one's privileges,

belonging to him as an individual, or secured

to him as a member of the commonwealth, is proper.

ty, and as such entitled to the protection of the

law. The protective power of equity is not exer-

cised upon the tangible thing, but upon the right

to enjoy it; and, so, it is called forth for the

protection of the right to that which is one's

exclusive possession, as a property right ."'2:

The majority's forgetting of this fundamental concept of

the person as being at the center of evel’ the concept of

ly Bouvier, Law Dictionary, p. 1038

254

geen nA WARE HRs TO ACERS NE ON

"An intestate's posthumous child is considered in

being and will inherit just as if he had been

born in the intestate's lifetime ...(T)his was

the common law rule with respect to both realty

and personalty...(A) posthumous child may recover

his share of the father's land from a bona fide

purchaser obtaining title through a judicial part:-

tion sale."

| In Texas a child en ventre sa mere is held in-

cluded among those children in being at the death of the

estatrix who are to take under her will. See James v.

ames, 174 S.W. 47 (Tex. Civ. App., 1914.) By statute in

exas, when a posthumous child is unprovided for by |

ettlement and pretermitted by his father's last will and

testament, he succeeds to the same portion of the father's

estate as he would have been entitled if the parent had

tied intestate. .

“4

: As early as 1795, English courts recognized the

tights of the unborn child in property law. In Doe v. .

larke, 2 H.Bl. 399, 126 Engl Rep. 617 (1795), the court

eld that the description in a devise to "children living

t the time of his (the life tenant's) decease" included

born children. American courts utilized the same ap- ;

roach. In Hall v. Hancock, 15 Pick, 255 (Mass., 1834,

ief Justice Shaw held that an unborn child fell within

e meaning of a bequest to grandchildren "living at

decease." In the case of La Blue v. Specker, 358 Mich.

58, 1OO N. W. 2d 445 (1960), an unborn illegitimate

ild was held to be a child or “other person" having

tanding to bring suit under a dram shop act, for the

ath of his father, which had occurred before the child's

irth. The Court stated:

latkinson on Wills (2nd ed. 1953) 75

2See, Vernon's Annotated Texas Statutes, Probate

de, Section 66.

-39-

% ss al SEE AREER ARRE RSIS BF a

property at this point to remember the admonition Justic¢

Gray addressed to other members of the New York Court of

Appeals in his dissent filed in the case of Roberson vy,

Rochester Folding Box Co., 171 N.Y. 538 (Ct. App. N.Y,,

LIE OES DIE ST NIM EE ERI PN NE ANGIE AEE 0 i Ratna ae th Aa ce cneitictinttiiniaiai

"For certain purposes, indeed for all beneficja) 4

purposes, a child en ventre sa mere is to be em. >

sidered as born.... It is regarded as in esse :

for all purposes beneficial to itself, but not yf}

another....Formerly, this rule would not be ap-

plied if. the child's interests would be injureq

thereby, ...but, for purpose of t rule against

perpetuities such a child is now’regarded as a

life in being, even though it is prejudiced by

being considered as born.... Its civil rights ay,

equally respected at every period of gestation."| F

It is important in considering the concept of

1902).

The majority's forgetting of this fundamental concept of

the person as being at the center of even the concept of.

He stated:

"Property is not, necessarily, the thing itself,

which is owned; it is the right of the owner in

relation to it. . The right to be protected in on’

possession of a thing, or in one's privileges,

belonging to him as an individual, or secured

to him as a member of the commonwealth, is proper.

ty, and as such entitled to the protection of the

law. The protective power of equity is not exer-

cised upon the tangible thing, but upon the right

to enjoy it; and, so, it is called forth for the

protection of the right to that which is one's

exclusive possession, as a property right ."'2

1) Bouvier, Law Dictionary, p. 1038

254.

-4Q-

a RACIAL TT cok ETAL EAR ARI

: "An intestate's posthumous child is considered in

: being ‘and will inherit. just as if he had been

born in the intestate's lifetime ...(T)his was

the common law rule with respect to both realty

and personalty...(A) posthumous child may recover

his share of the father's land from a bona fide

purchaser obtaining title through a judicial part:-

tion sale."

In Texas a child en ventre sa mere is held in-

cluded among those children in being at the death of the

testatrix who are to take under her will. See James v.

games, 174 S.W. 47-(Tex. Civ. App., 1914.) By statute in

exas, when a posthumous child is unprovided for by

ettlement and pretermitted by his father's last will and

estament, he succeeds to the same portion of the father's

state as he would have been entitled if the parent had

died intestate.

As early as 1795, English courts recognized the

rights of the unborn chi id in property law. In Doe v.

tlarke, 2 H.Bl. 399, 126 Engl Rep. 617 (1795), the court

eid that the description in a devise to "children living

t the time of his (the life tenant's) decease" included

mborn children. American courts utilized the same ap-

roach. In Hall v. Hancock, 15 Pick, 255 (Mass., 1834,

ief Justice Shaw held that an unborn child fell within

e meaning of a bequest to grandchildren "living at

y decease." In the case of La Blue v. Specker, 358 Mich.

58, 100 N. W. 2d 445 (1960), an unborn illegitimate

fhild was held to Be a child or "other person" having

tanding to bring suit under a dram shop act, for the

eath of his father, which had occurred before the child's

yirth. The Court stated:

latkinson on Wills (2nd ed. 1953) 75

2See, Vernon's Annotated Texas Statutes, Probate

, Section 66.

SNE IRL RVR PORTE TSS NE ET PET OS LT HILO PIT e H asda PE EORME TRS LEST

Co nt SP BE ISS Nig S79: OOS. bo sted sh anaayEty

"For certain purposes, indeed for all beneficia}

purposes, a child en ventre sa mere is to be og,

sidered as born.... It is regarded as in esse

for all purposes beneficial to itself, but Not ty

another....Formerly, this rule would not be ap-

plied if the child's interests would be injureg

thereby, ...but, for purpose of the rule against

perpetuities such a child is now regarded as a

life in being, even though it is prejudiced by

being considered as born.... Its civil rights ay,

equally respected at every period of gestation."!

It is important in considering the concept of

property at this point to remember the admonition Justicg

Gray addressed to other members of the New York Court of

Appeals in his dissent filed in the case of Roberson vy,

Rochester Folding Box Co., 171 N.Y. 538 (Ct. App. Matis

1902). He stated:

"Property is not, necessarily, the thing itself,

which is owned; it is the right of the owner in

relation to it. The right to be protected in one’:

possession of a thing, or in one's privileges,

belonging to him as an individual, or secured

to him as a member of the commonwealth, is proper-

ty, and as such entitled to the protection of the

law. The protective power of equity is not exer-

cised upon the tangible thing, but upon the right

to enjoy it; and, so, it is called forth for the

protection of the right to that. which is one's

exclusive possession, as a property right.'"'2

The majority's forgetting of this fundamental concept of

the person as being at the center of even the concept of

ly Bouvier, Law Dictionary, p. 1038

214.

-4Q-

—-

eee _

"An intestate's posthumous child is considered in

being and will inherit just as if he had been

born in the intestate's lifetime ...(T)his was

the common law rule with respect to both realty

and personalty...(A) posthumous child may recover

his share of the father's land from a bona fide

purchaser obtaining title through a judicial part:-

tion sale."

)

In Texas-a child en ventre sa mere is held in-

cluded among those children in being at the-death of the

testatrix who are to take under her will. See James v.

James, 174 S.W. 47 (Tex. Civ. App., 1914.) By statute in

Jexas, when a posthumous child is unprovided for by

settlement and pretermitted by his father's last will and

testament, he succeeds to the same portion of the father's

estate as he would have been entitled if the parent had

died intestate.

As early as 1795, English courts recognized the

rights of the unborn child in property law. -In Doe v.

Clarke, 2 H.Bl. 399, 126 Engl Rep. 617 (1795), the court

eld that the description in a devise to "children living

at the time of his (the life tenant's) decease" included

pnborn children. American courts utilized the same ap-

‘Pproach. In Hall v. Hancock, 15 Pick, 255 (Mass., 1834,

Chief Justice Shaw held that an unborn child fell within

the meaning of a bequest to grandchildren "living at

y decease." In the case of La Blue v. Specker, 358 Mich.

38, lOO N. W. 2d 445 (1960), an unborn illegitimate

child was held to be a child or "other person" having

tanding to bring suit under a dram shop act, for the

eath of his father, which had occurred before the child's

irth. The Court stated:

latkinson on Wills (2nd ed. 1953) 75

;

“See, Vernon's Annotated Texas Statutes, Probate

Section 66.

ode,

«G0

“For certain purposes, indeed for all beneficj,)

purposes, a child en ventre sa mere is to be em.

sidered as born.... It is regarded as in esse

for all purposes beneficial to itself, but not t,

another....Formerly, this rule would not be ap-

plied if the child's interests would be injure

thereby, ...but, for purpose of the rule againgt

perpetuities such a child is now regarded as a

life in being, even though it is prejudiced by

being considered as born.... Its civil rights ay,

equally respected at every period of gestation,"!

It is important in considering the concept of

property at this point to remember the admonition Justi

Gray addressed to other members of the New York Court of

Appeals in his dissent filed in the case of Roberson v,

Rochester Folding Box Co., 171 N.Y. 538 (Ct. App. N.Y,,

1902). He stated:

"Property is not, necessarily, the thing itself,

which is owned; it is the right of the owner in

relation to it. The right to be protected in one'

possession of a thing, or in one's privileges,

belonging to him as an individual, or secured

to him as a member of the commonwealth, is proper.

ty, and as such entitled to the protection of the

law. The protective power of equity is not exer-

cised upon the tangible thing, but upon the right

to enjoy it; and, so, it is called forth for the

protection of the right to that which is one's

exclusive possession, as a property right ."'2

The majority's forgetting of this fundamental-concept of

the person as being at the center of even the concept of

1} Bouvier, Law Dictionary, p. 1038

tg.

EPP MALLE LINN LLP AMEE EGO AI BIE TAB NINE

roperty led to the rejection of its decision shortly

pereafter by the people and the Legislature of the

tate of New York. (New York Laws, 1903, c. 132, N. Y.

ivil Rights Law ss 50, 51.)

: Thus, when the state recognizes that the unborn

ehild mey take real or personal property under a will or a

Mratute of descent and distribution, it is not only de-

slaring what is "property" that is within the meaning of

the Due Process Clause of the Fourteenth Amendment. It is

also declaring that the unborn child is a person to be

brotected with respect to its property right. The very

oncept of property, as Justice Gray long ago pointed out,

i; a corcept of the person and of the right of the person.

ris the state's definition of the person and of the

rights of the person relative to property that is referred

b>) by the term "property" in the Due Process Clause of the

fourteenth Amendment . ;

_If the unborn child is a person protected as to

me clauses for the purpose of the protection of its

ife an¢ liberty. It would be a strange and bizarre

ntrine that protected the property of the unborn child

der these Amendments, as is clearly the case, but not

ts life and liberty. As to life, we are dealing with a

stter that is less dependent upon the state for its being

han prcperty is. Life is the product of natural pro-

esses, although with the Founding Fathers many of us

sy affirm that it is not wholly so, whereas property

wholly the product, as a concept, of legal processes.

he life of the person does not depend for its being so

ch upcn the state as the state depends upon the life of

he persons composing it. It is for this reason that

re Fourding Fathers recognized it to be the foundational

ight tc all other rights. It was perhaps not without

ignificance that they mentioned it before "iiberty" and

property” in the Fifth Amendment. Thus, if any lesser

ats

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right of the unborn child is protected by the Due Proces,

Clauses of the Fifth and Fourteenth Amendments, the fouyp.

dational right to life of the unborn child must also nee.

essarily be protected by them.

In determining upon the propriety of protecting 4,

unborn child as a person, with respect to its life and

liberty, under the Due Process Clauses of the Fifth and

Fourteenth Amendments and under other constitutional safe.

guards of the person, this Court should be as guided by

decisions of state courts at common law with respect to

the protection of the unborn child's life and liberty as

it is necessarily controlled by their decisions with

respect to the unborn child being a person who may ow

property when administering the protection of property

contained in Due Process Clauses. The Constitution, after

the decision in the Erie case, supra, and as applied in

the actual administration of the Due Process Clauses, must

be taken as at least establishing a principle requiring

this Court to give strong consideration, if not a prima

facie effect, to state decisional law and statute law in

determining who is a person for purposes of the constitu-

tional safeguards of the person. A regard for state de-

cisional and statute law indicates that states have long

since determined that the unborn child's liberty and life

are to be as much protected at common law and by statutes

as the unborn child's property is.

In the area of tort law, the unborn child has com

into his own as a person since World War II. In Scott v.

McPheeters, 33 Cal.App.2d 629, 92 P. 2d 678 (1939), re-

hearing denied, 93 P.2d 562 (1939), the court held that

a child might sue for injury to her in delivery before

birth. The District of Columbia courts reached the same

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

Since 1946, this result has been generally reached:

".,.(A) series of more than thirty cases, many of

them espressly overruling prior holdings, have

brought about the most spectacular abrupt reversal

of a well-settled rule in the whole history of the

alu

I ian EATER HR EMRE A RIEL OD LI AE GIVEN ve ot ne ee « AD LD POI SANS

law of torts." 1

e Supreme Court of Texas in 1967, in overruling a prior

oiding, likewise held that the parents of a viable child

‘no had been injured in the sixth or seventh month of its

sother's pregnancy as a result of the defendant's negli-

sence could recover damages for its death after birth due

to these injuries. Leal v. C. C. Pitts Sand and Gravei,

-. Tex. , 419 S.W.2d 820 (1967). On October C,

971, the same court extended the new principle of pro-

tection to an unborn child injured prior to its having

hecome viable. Delgado v. Yandell, Tex. , (1971)

e majority of jurisdictions now recognize that a wrongful

path action may be brought far negligently inflicted in-

ry to the unborn child resulting in its death, whether

rnot it was viable at the time of the injury, and whether

om alive or still born. Torigian v. Watertown News Cc.,

52 Mass. 446, 225 N.E. 2d 926, 927 (1967).

In the area of family law, the courts have recog-

ized the right of the unborn child as a person to support

shis parents. Kyne v. Kyne, 38 Cal.App2d 122, 100 P.2d

06 (1940), involved a suit for support brought by the

wardian ad litem of a six month's old unborn child against

he natural father. The court held that under Section 29

f the Civil Code the father of an unborn child could be

mpelled by that child, acting through a guardian ad

iten, to support it. This section provided that an un-

om child "is to be deemed an existing person", so far

s may be necessary for its interests..."" The court also

lorosser on Torts, (3rd ed.,1964) p. 355, 356.

iso see, Gordon, The Unborn Plaintiff, 63 Mich. L. Rev.

19 at 627 (1965).

2uarper and James, Torts, Sec. 18.3 (1956); David

. louisell and John T. Noonan, Jr., "Constitutional Bal-

nce" in The Morality of Abortion (Harvard Press, 1970)

B) at 226-230.

wl 30

;

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referred to a provision of the California criminal lay

having an even broader reach in protecting the unborn

child as "an existing person."" Section 270 of the Ca}j.

fornia Penal Code, as amended in 1925, St. 1925, p. 544.

The Supreme Court of Colorado has recently held that ap

unborn child is within the concept of "child" utilized ;, §

a paternity statute and that a juvenile court may issue §

temporary orders for support of that child pending adjuq.f

cation or disposition of the child's case. People v,

Estergard, Colo. » 457 P.2d 698 (1969). Other.

wise, said the Court, "the father of an unborn child ,,,

(could) evade his responsibility for support by leavi

the state at any time prior to the birth of the child,"

The unborn child tias been recognized as a person

to have a right to life that is superior to his mother's

right to free exercise of her religion. In Application

of the President and Directors of Georgetown College, In, —

331 F.2d 1000 (C.A. D.C., 1964), cert. den., 377 U.S. 97%

(1964), Judge J. Skelly Wright issued, after the District

Court for the District of Columbia had refused to do 0,

an order to a hospital to administer blood transfusions

to a mother carrying a seven-month unborn child so far as

necessary to save the mother's life, the mother and her

husband having refused to permit the transfusions on reli.

gious grounds. The Court based his authority for the or-

der upon the lack of right of the parent to forbid the _

saving of his child's life by action of the state, citing

such cases as People ex rel Wallace v. Labrenz, 411 Ill.

618, 104 N.E.2d 769, cert. denied, 344 U.S. 824, 73 S.Ct.

24. It also suggested that the state, in this instance

the United States, may also be under a corresponding duty

to act in behalf of the mother and child:

"Under the circumstances, it may well be the duty

of a court of general jurisdiction, such as the

United States District Court for the District of

Iid. at 699.

lle

Columbia, to assume the responsibility of guardian-

ship for her, as for a child, at least to the ex-

tent of authorizing treatment to save her life.

"The state, as parens patriae, will not allow a

parent to abandon a child, and so it should not

allow this most untimate of voluntary abandon-

‘ments. The patient had a responsibility to the

community to care for her infant. Thus the people

had an interest in preserving the life of this

mother." 1

tn Raleigh Pitkin-Paul Morgan Memorial Hospital v.

anderson, 42 N.J. 421, 201 A.2d 537 (1964) cert. den.,

717 U.S. 985 (1964), the Court held that an unborn child

ag entitled to the Law's protection and thus to obtain a

ourt order directing a blood transfusion for his mother

if necessary to save her life or the life of the child.

the Court referred to its earlier decision in State v.

erricone, 37 N.J. 463, 181 A.2d 751 (1962), in which it

a held that the concern of the state for the welfare of

n infant justified the ordering of blood transfusions for

he child notwithstanding the objections of its parents on

religious grounds. In that case, it cited the opinion of

the Supreme Court of the United States in Prince v.

massachusetts, 321 U.S. 158, 166-167, 64 S.Ct. 438-432..

ee td oe a oe

"Neither rights of religion nor rights of parent-

hood are beyond limitation. ...The right to prac-

tice religion freely does not include liberty to

expose...the child...to ill health or death."

he New Jersey Court pointed out that the facts of the

ase before it:

"clearly evidence a more compelling necessity for

the protection of a child's welfare than those in

lia. at 1008.

lie

SAAT TO

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Petes .* - 18) A.04 at 7572.

These decisions should be persuasive to this Cour §

that the unborn child should be considered a person for

the purpose of administering the protection of the life

and liberty of the person provided by the Fifth and Foyr.

teenth Amendments just as other decisions by state court;

are controlling upon this Court for the purpose of adm.

istering the protection of property of the person provide

by these same Amendments.

The result of the argument in subpoint C is that

there are numerous parts of the Constitution which protec

the unborn child as a person. That the unborn child is

so protected in these parts of the Constitution should be

persuasive to this Court that the unborn child should be

held to be a person within the meaning of any constitu-

tional safeguard of the person that is relevant to pro-

tecting its interests.

D. The concept of person must be held as much beyond

the power of the state or nation to define, in the

sense of determining whether or not some child of

human beings is entitled to be treated before the

law as a person, as it is beyond the power of the

state or nation to define the concept of religion,

in the sense of determining whether*‘or not some

group is pursuing a religious cause and entitled.

to solicit support for it, and for the same reasons,

This Court held in Cantwell v. State of Connecti-

cut, 310 U.S. 296 (1940) that the Due Process Clause of

the Fourteenth Amendment was violated by a state statute

that required a person to obtain a-permit as a condition

of soliciting support for the perpetuation of his religious

views where the official passing upon the permit applica-

tion was empowered to determine whether the cause for

which the solicitation was sought to be done was for a

religious cause and to deny the permit if he found the

cause was not a religious one.

Speaking for the Court, Justice Roberts stated:

een |

"His (the official's) decision to issue or refuse

it involves appraisal of facts, the exercise of

judgment, and the formation of an opinion. He

is authorized to withhold his approval if he de-

termines that the cause is not a religious one.

Such a censorship of religion as the means of

determining its right to survive is a denial of

the liberty protected by the First Amendment and

included in the liberty which is within the pro-

tection of the Fourteenth." 310 U.S. at 305.

: [parentheses added]

EL ELOIMEEET

By the Cantwell case, this Court put it completely

yond the authority of the state to define what a reli-

ous cause is and to determine in light of that state

finition whether the activities of a given group of per-

s constituted the pursuit of religion or of a religious

se and thus whether that group would enjoy the right to

rvive or live through the efforts of its members in so-

citing support for perpetuation of its views. The con-

t of religion was by this decision held a concept not

ject to definition by the state but rather as a \concept

ing an integrity and meaning independent of the state

to be respected by it. In effect, the Court held that

Fourteenth Amendment insofar as it contained the pro-

tion of the person set out in the First Amendment

inst any "law respecting the establishment of religion,

prohibiting the free exercise thereof..." took the

inition of the concept of religion out of the hands of

state or nation and elevated it to the level of a con-

tutional concept. The Court was not called upon in that

e to state what the constitutional concept means. é

The recognition of the constitutional immunity and

ependence of the concept of religion by this Court was

dto be necessary for the protection of the free exer-

eof the chosen form of religion by way of giving the

edom to act "appropriate definition to preserve the en-

cement of that protection." 310 U.S. at 304. The

es FURNISSII

FEAL EE ENOL PERLE, IR —————————— Me

RS 0

‘ %

“appropriate definition" of the freedom to act in the

exercise of one's chosen religion was achieved by pre.

venting the state from determining what a religion or,

religious cause is and conditioning one's exercise of

his religion thereby.

Similarly, if the concept of the "person" con-

tained explicitly or implicitly in numerous safeguards

of the person in the Constitution of the United States

one the state or the nation is permitted to define accor.

ing to majority vote, the state can readily control by tf

whim of a capricious majority that looks askance upon’

various types of person, who is entitled to be treated a

a "person" within the state or nation. The concept of

person utilized in the Constitution is an even more fund.

mental concept than the Constitutional concepts of "re-

ligion", "freedom of speech", "freedom of the press",

“right...peacably to assemble, "petition..for a redress

of grievances", "citizen", "right to a speedy and public

trial", and many others. It is more fundamental as a

concept simply because where a being or person is ina

position of claiming that he or she is a "person" within

the meaning of the constitutional safeguards of the per-

son, the decision upon this claim can conclude that being's

or person's right to life and to all the other rights

guaranteed to the person.

The argument just made does not tell us what the

definition is of the constitutional concept of the person

any more than the decision of this Court in the Cantwell

case revealed what the definition is of the constitutional

concept of "religion". It does tell us that if that defi-

nition is necessary, as it seems to be in order to dispose

of this case, it must be made in accordance with the con-

stitutional interpretation criteria that this Court has

applied in previous cases. It also tells us that no

federal court can rationally dispose of the issues in

this case without confronting and resolving the issue of

whether an unborn child is a person under the constitu-

tional concept of the person. It also tells that if the

unborn child is a person within the meaning of the

—S we eee oe ot = 2

constitution then a state has the right to enact a statute

seeking to protect the constitutional right to life of

the unborn child providing it has done so in a reasona-

ble way.

E. The long continued construction of the Constitu-

tion by the Congress and by the Chief Executive

as comprehending the unborn child within its con-

cept of the person bind this Court in administer-

ing the Constitutional safeguards of the person,

particularly the Fourth, Fifth, Seventh, Eighth,

Ninth, and Fourteenth Amendments.

This Court has long since recognized that a Con-

gressional construction of the Constitution of the United

States thro the enactment of statutes of.resolutions

which is either contemporaneous or long continued is

“entitled to the greatest respect ."'1 Indeed, the respect

accorded a contemporaneous or long continued construction

of the Constitution by Congress and followed by the exec-

‘utive department over a period of 73 years was so great

‘that it has been held that construction "fixes the con-

struction to be given its provisions" by this Court so

that Congress may not thereafter depart from the con-

struction it has, as an institution, been responsible for

creating. Myers v. United States, 272 U. S. 52, 175

The Congress of the United States enacted a statute

in 1825 which adopting, among others, state criminal laws

prohibiting abortion for application within federal en-

laves located in the different states. 4 Stat. 115

(March 3, 1825). This statute was modeled upon a section

f bill drawn by Mr. Justice Story. Of the latter bill,

its distinguished author stated:

"The state courts have not jurisdiction of crimes

committed on the high seas, or in places ceded to

lex Parte Quirin, 317 U. S., 42 (1942)

-49-

ptt yeXo

FRONTAL RS a

a the United States. Rapes, arsons, batteries,

and a host of other crimes ser, | in these places be

f now committed with impunity."

The, formula proposed and later adopted for dealing with

this, problem was the following:

\ “where the punishment of which offense is not

specially provided for by any law of the United

States, such offense shall, upon a conviction in

any court of the United States having cognizance

thereof, be liable to, and receive the same

punishment as the laws of the state in which such

.--placed, ceded as aforesaid, is situated, pro-

vide for the like offense when committed within |

the body of any county of such state." |

The statute came to be called the "Assimilative Crimes

Statute." At the time this comprehensive formula was

adopted, Congress did not have any law providing specially

for the punishment of abortion. However, Connecticut had

four years previously enacted an abortion law based upon

the English Statute of 1803 (43 Geo. 3, c. 58.) which |

penalized all forms of abortion whether or not the abortion

occurred before the "quickening" of the unborn child. Com,

Stat. Tit. 22 ssl4, at 152 (1821). New York added an abor-

tion statute in 1828 (N. Y. Rev. S. Vol. 2, ps 578-579

21 (1836) of the type that became traditional in this

country, as was true of Maine in 1840, Ohio in 1841, as

well as of Massachusetts and Illinois in 1845 (Mass. St.

1845, c. 27; Ill. RZS., 1845, p. 158, s. 46); of Califor-

nia in 1850 (Stats, 1850, ch. 99, s. 45, p. 233); of Texas

in 1854 (Tex. Pen. Code, Arts. 531-536; Texas L. 1854,

ch. 49, 58, Texas Penal Code, 1857), Pennsylvania in 1860

(1860, M.L. 382, s. 88), and Colorado in 1861 (L. 1861, p.

296,,s. 42), and Virginia in 1848 (L 1847-8, p. 96, ch. 3

§9).

Ls.W.Story, The Life and Letters of Joseph Story,

Boston, ,ittle & Brown, 1851. Vol. 1, 297.

David Granfield, The Abortion Decision.Garden City

Doubleday & Co.,; 1969. 79.

«$0=

Since the 1825 Federal Act had been held to apply

only'to places that had been ceded to the United States,

prior to its enactment, United States v. Barney, 5

platchf. 294, Fed. Cas. No. 14,524, its coverage was much

less than the extent of the problem to which Justice

Story had sought to direct it. Thus, in 1866, when con-

gress substantially reenacted the 1825 statute it made

the law applicable to “any place which has been or sha‘l

hereafter be ceded." (14 Stat. 13, April 5, 1866). The

effect of this statute was to extend its coverage to all

of tha,states previously mentioned as well as to all

others that theretofore or. thereafter enacted the tra-

ditional form of abortion statutes. All fifty states

eventually proscribed abortion. In all of them abortion

yas pegmitted to save the life of the mother. In Colo-

rado and New Mexico only was abortion to prevent serious

ind permanent bodily injury to the mother permitted, and

mly in Alabama, Oregon, and Massachusetts was abortion

(0 protect the health of the mother permitted.

The policy of The Assimilative Crimes statute

as been continuously in effect in this country since

825 through various reenactments, see United States Vv.

harpnack, 355 U.S. 286 at 291 (1958), and is now codi-

ied in the Revised Criminal Code as 18 U.S.C. s 13.

he effect of the 1825 statute and its subsequent re-

nactments was, prior to 1967, to adopt a substantially

niform state law against abortion for application in

ederal enclaves. All fifty states had proscribed

bortion. In all of them abortion was permitted in

rder to save the life of the mother. Only in Colorado

nd New Mexico was abortion permitted to prevent ser-

ous and permanent injury to the mother, and only in

labama, Oregon, and Massachusetts was it permitted to

rotect the health of the mother.

See David Granfield, Id. at 79.

* a

Thus, through the Assimilative Crimes Statute

of 1825, the United States initiated a policy that made

enforceable a substantially uniform policy directed

against abortion in federal enclaves located within the

fifty states of the nation. That policy by 1967 had

been in existence for a total of 142+years. It was a

policy, like that of the state criminal law for whose

application it proveded in federal enclaves, that in-

volved.

“recognition of the human dignity of the un-

born and the protection of unborn life by crin-

inal sanctions." | _

This congressional protection of the life of the

unborn extending over a period of 142 years without vari.

ation under the Assimilative Crimes Statute constitutes

one of the clearest legislative constructions of the

appropriate use of its powers to protect federal inter-

ests within federal enclaves under the Constitution of

the United States. It is a recognition that the unborn

child is a human person, under the constitution, and

that Congress has the authority under the 17th clause

of Article I, Section 8 to provide forthe protection

of its right to life. The reenactment of the original

Assimilative Crimes Statute on April 5, 1866, during

the period of Congressional consideration of various

civil rights measures and of the proposed Fourteenth

Amendment, in light of the substantial number of

statutes directed against abortion that had been en-

acted since 1825 suggests that the Congress saw this

statute as, in part, a civil rights statute for the pro-

tection of the security of the person. In any event,

this legislative construction of the Constitution was

continued for a period of nearly double the 73 years of

another legislative construction which this Court held,

as previously noted, "fixes the construction" to be

given its provisions."

lyavid Granfield, Id. at 81.

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POOR COPY

Surely, if Congress and the Court are not free

after 73 years of a consistent Congressional construction

of the Constitution to change that Construction, several

state governments are not free by enactment of unlimited

or substantially unlimited abortion laws to change a con-

gressional construction of 142 years standing that the un-

born child is a human person deserving protection of its

right to life in the exercise ‘of the power to provide ex-

clusive legislation for places ceded by the states to the

United States. The 142 year old construction should sure-

ly "fix the construction" by Congress for the Congress,

the State Legislatures, and this Court that the unborn

child is a person within the meaning of the Constitution

of the United States.

Congress and the Chief Executive have given

numerous long standing as well as recent constructions

of the Constitution recognizing the unborn child to be

a person deserving protection by the United States for

its life and health.

Prior to the enactment of the Uniformed Services

Dependents’ Medical Care Act of 1956 (70 Stat. 250, Title

10, U.S.C. ss 1071-1085), the dependent wives and child-

ren, both born and unborn, had been receiving medical

care from the uniformed services for over 100 or more

years despite the fact that there was no specific stat-

utory authority for rendering this care until 1884 in the

case of the United States Army and 1943 in the case of the

United States Navy. Congressional Record Statement of

Representative P. Kilday of Texas, Congressional Record,

Yol. 102, 3847 (March 2, 1956). Medical care was pro-

vided dependents of the U.S. Navy and U.S. Marine Corps

by the Navy, of members of the Coast Guard, Public

Health Service, and Coast and Geordetic Survey by the

Public Health Service, and of the U.S. Army and Air Force

?ersonnel by the Army. These statutes gave virtually un-

limited discretion to the Secretaries of the Army, Navy,

dir Force, and the Secretary of Health, Education, and

welfare in providing medical care to members of these ser-

vices and their wives and children.

~536

ROSIE ATALANTA Eg

The Unifermed Services Dependents' Medical Care

Act of 1956 was designed to continue the long standing

policy of providing medical care to dependent wives and

children, both born and unborn, of members of the Uni-

formed services, but also to improve greatly the quality

of medical care available, to make it more uniform in

nature, and to make more readily available to the more

than 40 per cent of all dependents who had not been able

to take advantage ‘of it due to the "shortage of military

doctors, overcrowding of military medical facilities,

(and the fact that)...so many of the military dependents

are located where they cannot take advantage of existing

military care."' Congressional Record. Vol. 102, 3851-

3853 (March 2, 1956).In its section 1072 (Title 10, USC)

the term dependent was defined,to include:

"an unmarried legitimate child who has not passed

his twenty-first birthday ...(or) is incapable of

self-support because of mental or physical in-

capacity."

Section 1077 of Title 10 U.S.C. provided that only the

kinds of health care specified in that section were author.

ized to be provided dependents of a member of a uniformed

service. One of the authorized kinds of health care was

"maternity and infant care."' This phrase was further de-

fined in joint regulations issued by the Secretaries of

Defense and Health, Education, and Welfare who were re-

quired under Section 1076 to issue these regulations in

order to prescribe in greater detain the medical care

available under Section 1077. Joint regulations issued

under the Act provided, by way of further definition of

the statutory phrase "maternity and infant care", that the

phrase include:

"prenatal and postnatal care, and routine care and

examination of the newborn infant." Title 32,

Section 577.64 (e) (7).

Neither the Act nor the joint regulations issued under ther

referred to or authorized the latter but rather referred

to the following health benefits, among others

~-She

"Drégs: Prescriptions written by either uniformed

services or civilian physicians will be filled

at uniformed services facilities...."

Family planning services and supplies, including

counseling and guidance. These services and

supplies will be provided in accordance with

sound medical practice to any eligible depende.t

upon request. Title 32, Section 577. 64(e)(3),(9).

The Congress that enacted this Act obviously was

oncerned with the welfare of mothers and unborn children.

ongressman Paul Kilday, Chairman of the House Committee

n Armed Forces Subcommittee No. 2 which conducted hear-

ussing the right of dependent wives and their unborn

hildren to obtain medical care under the statute from

rivate physicians in private hospitals:

"A woman (military member's wife) expecting a

baby has a number of friends who have recently

had babies who knew the doctor who took care of

them, and they knew everything came out all

right and they naturally want to go to that

doctor in the community...If they (military

personnel) do not have quarters on the base,

they are out in the civilian community where

they meet the people and hear these things

talked about.

",..the woman expecting her baby might go home

in the sixth month of pregnancy. Most Texans

do that. They want their kids born in Texas

and they go home.'' Hearings before Committee

on Armed Services; U.S. House of Representatives,

Comm. Rep. 53, 84th Cong., 2nd Sess. 1956

6029, 6034.

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Clearly, at this point, Congressman Kilday had reference

a new feature of the bill that would permit a servicem;)',

dependent wife to obtain medical care for herself and he,

child in a private hospital under the cognizance of stat,

law. His statement not only reflects the concern of the

legislators for providing medical care for the wife ang

the unborn child but also for the provision of this car,

in the context of a private hospital by a private physi-

cian subject to and controlled by the state law of abor.

tion. In the particular example he gave, that law was

the one now being challenged in this case. Congress at

the time it enacted the Uniformed Services Dependents’

Medical Care Act in 1956 was reaffirming its 100 year

commitment to respect for the unborn child as a human

person and seeking to provide for improved health care

to be made available to it and to its mother. Having ip.

dicated this concern with the unborn child as a dependent

entitled to medical or health care, Congress drove home

the point by providing that no dependent should be denied

equal opportunity for that care through requiring the

Secretaries of Defense and Health, Education, and Wel-

fare to issue joint regulations;

"to assure that dependents entitled to medical

or dental care under this section will not be

denied equal opportunity for that care because

the facility concerned is that of a uniformed

service other than that of the member."1

Throughout the history of the administration of

the 1956 Act the Uniformed Services continued to give

effect to the Assimilative Crimes Statute policy of re-

specting the state law on abortion in federal enclaves.

In July 22, 1970, the Surgeons General of the Depart-

ments of the Army, Navy, and Air Force joined in a mem-

randum addressed to the Assistant Secretary of Defense

(Health and Environment) taking the position that

lIvitle 10, S 1076(d), U.S.C.

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a — : A LN nL LLL B II AR

"Abortions will be performed within the limits

of local state laws."

On July 31, 1970 the Assistant Secretary of De-

fense, Louis M. Rousselot, M.D., F.A.C.S. issued a memo-

randum by way of reply to the joint memorandum of the

Surgeons General of the Armed Forces stating, without

citation of authority for his directive, disapproval of

the above limitation on performance of abortions. He

referred to his Memorandum of July 16, 1970, which also

was without citation of authority, directing that

“Pregnancies may be terminated in military medi-

cal facilities when medically indicated or for

reasons involving mental health and subject to

the availability of space and facilities and the

capabilities of the medical staff."

There was no authorization for this action either in the

(1956 Act or any joint regulation issued by the Secreta-

ries of Defense and Health, Education, and Welfare as re-

quired by that Act with respect to forms of health care

to be available to dependents.

| After the implementation of this new "memorandum"

policy on abortion by the Secretary of the Air Force by

Air Force Regulation 160-13 and its application in Texas

‘at the Willford Hall Air Force Base Medical Center, Lack-

land Air Force Base located in San Antonio, Texas, and

the destruction of more than 100 unborn children without

compliance with the Texas law of abortion, the case of

Paul B. Haring v. Commander Willford Hall Air Force Base,

No. SA 71 CA 11 was instituted on January 15, 1971, be-

fore the United States District Court for the Western

‘District of Texas. This case challenged the validity ,

of these abortions and of the regulation under which

they were being performed by virtue of Fifth, Eighth,

)

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LLL IE FELL LIER LL LAE ELE DIN ERODES ALP PS LER ILE CES AP! GER

_—

and Ninth Amendments to the Constitution of the United

States. A temporary restraining order against further

abortion under the challenged regulation by the Court

‘was, on Defendants’ Motion to Dismiss, permitted to ex-

pire without extension as requested by the Plaintiff ang

the Defendants' Motion was granted on the ground that

the plaintiff had not satisfied the Court on the legal

question of having sufficient standing to bring the suit,

The case is now on appeal before the Fifth Circuit Court

of Appeals, docketed as No. 71-1404.

On April 3, 1971, following institution of and

the decision in the Haring case, supra, the President of

the United States, Richard M. Nixon, issued a directive

overturning the "memorandum policy" of the Assistant

Secretary for Defense (Health and Environment) and the

Air Force Regulation 160-12. He stated:

"T have directed that the policy on abortions at

American military bases in the United States be

made to correspond with the laws of the states

where those bases are located. If the laws in

a particular state restrict abortions, the rule

at the military base hospitals are to corres-

pond to that law."...

"From personal and religious beliefs I consider

abortions an unacceptable form of population

control. Further, unrestricted abortion poli-

cies, or abortion on demand, | cannot square

with my personal belief in the sanctity of

human life-including the life of the yet unborn.

For, surely, the unborn have rights also, recog-

nized in law, recognized even in principles ex-

pounded by the United Nations.

li.s.C. Title 42; Secs. 1981 and 1988; USC.,

Title 10, Section 1077; and Title 18, Sec. 13.

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LGR OS HE BPEL LLL ns i BOTS RIE PP ox er Be FA ae AN SS to Shae Ne IE

"Ours is a nation with a Judeo-Christian heritage.

It is also a nation with serious social problems-

problems of malnutrition, of broken homes, of

poverty and of delinquency. But none of these

problems justifies such a solution.

"A good and generous people will not opt, in my

view, for this kind of alternative to its social

dilemmas. Rather, it will open its hearts and

homes to the unwanted children of its*’own, as

it has done for the unwanted millions of other

lands." |

The action of the President caused the health

licy of the Department of the Air Force to be returned

fter a brief, unauthorized departure therefrom, to the

traditional administration of health care by the armed

orces of the United States in behalf of unborn children,

, policy that had been unbroken in its administration

etween approximately 1856 and 1970, a total of 114 years.

is, too, constitutes a long-continued Congressional and

ecutive construction of the Constitution of the United

tates as authorizing the exercise of federal power to

rotect the unborn child as a person in its right to life.

Congress has consistently between 1873 and 1971

intained a vigorous policy against abortion by statutes

pecifically directed at the practice. One of these

tatutes, the District of Co ta Code provision section

2-201, was recently cxyatied by this Court in United

tates v. Vuitch, 402 U. S. 62 (1971). The Court held

he statute, originally enacted in 1901, was not uncon-

titutionally vague insofar as it excepted from its cov-

rage an abortion "for the preservation of the mother's

ife or health".

lthe New York Times, Sunday, April 4, 1971, p. 1.

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PRB PE?

a Sey SS RPA TREE ASRS RED RH PTE

Congress has since 1873 prohibited the importa.

tion of any drug, medicine, or article for causing

unlawful abortion. 17 Stat. 598-599 (March 3, 1873),

It has also since 1876 prohibited the use of the mailg

for the support of operations to effectuate an abortion

through the mailing of information concerning these

operations. 19 Stat. 90 (July 12, 1876). These two

laws are -now contained in the United States Code, Title

18, sec. 1461 and Title 19, sec. 13

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