# Amicus Curiae Brief — Roe v. Wade > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0097%3A27 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1973 - **Citation:** 410 U.S. 113 ## Text 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 Ee 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 -- 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- 63 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 -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 | ee Lg 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, oa 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=) ® a 3 =] u“ @ ct ° ct sz o BP a et ae et be ° =) 7] se “a ° fe) 3 et @ 3 et be oO r= “ ct = @ Q ° Cc " et imply stated: SOT tt "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 re 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 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 te 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 ES 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. a 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 2 PeQ NEO Hoe Boorstin, supra, at 202. * NS ~-25—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 AG : : i bs ' t & = % CRS RAPER TES ee HEL i 4 i, > % be 2 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. E i i ; i N : 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 & = Ps 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." yp 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.,, ; 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 f 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 a aS : y g 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. de e 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 OEE AEE OEE EL LEP ETL LY ] Ry MS - ae BP ty Spe RR Pa eS | VreNe ae eee > SYRE GEN AERA BATE IN REAR ee agen se RSR SR aE OE CPL ED IY ¥ q ENT ANLLEL NNII ES EEE os CAROL ADEE OSG NICER ALS CPST ARR NE IR HSIN 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 ; i ACRE ihe PS EY cat gtih PORN TA ES Pg UIA AEA: & 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 SEIT 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." t 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. ~-52- 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 +5 i * 2 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. -55- 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. -56- 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, ) | -57- 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. -58- 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." | oe 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. -59- 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. 1305, respectively. When these laws were modified on January 8, 1971, so as to strike their coverage of the same matter relative to "the prevention of conception", Congress continued in- tact their policy relative to "unlawful abortion". Pyb, Law 91-662. Thus, for nearly a hundred years Congress has directed two major statutes against vital avenues for effectuating "unlawful abortions" in areas subject to exclusive federal regulation. The Court of Appeals for the Seventh Circuit in Bours v. United States, 22 Fe. 960 (C.A. 7, 1915) held that the word "abortion", as use in the predecessor to Title 19, section 1305, U.S.C., “must be taken in its general medical sense. . Therefore a physician may lawfully use the mails to say that if an examination shows the necessity of an operation to save life he will operate, if such in truth is his real position. If he uses the mails to give information that he elects, intends, is willing to perform abortions for destroying life, he is guilty, irrespective of whether he has i: eames or impliedly bound hin- self to operate." Thus, for nearly a hundred years, Congress has directed two major statutes against vital avenues for effectuating “unlawful abortions", the latter being construed to mean any abortion not performed due to the necessity of, an operation to save life. This action in regulating the use of the mails and the importation of goods into this lid. at 964. # -60- BLEED THR OUGH country constitutes a third long-continued construction by Congress that the unborn child is a person within the meaning of the Constitution having a right to life which congress has. the authority to act to protect. A more recent construction of the Constitution by Congress is represented by the Federal Tort Claims Act, Title 28, Sections 2671 et seq., U.S.C., which was enacted in 1948. This act gives the unborn child the right to recover for injuries inflicted upon them as a result of the negligent acts of federal officers and employees generally and of the uniformed services, in- cluding physicians when the latter are rendering medical care to them and to their mothers. In Sox v. United States, 187 F.Supp. 465 (D.C.S.C., 1960) the Government stipulated that it was liable for any injuries sustained as a result of the negligence of a military policeman by an unborn child during the sixth month of its mother's pregnancy and the child recovered the sum of $260,000 for those injuries which left her "completely helpless and entirely dependent upon others". In Rewis v. United States, 369 F. (C.A. 5, 1966) the Court held that in a tort action brought by the parents of a child for causing her wrongful death as a dependent treated by an Air Force Medical Officer that it was not necessary for the plaintiffs to adduce specific testimony, as the trial court had rules was necessary, that "to a reasona- ble degree of medical certainty" the child's life could have been saved. This child was fifteen months old. These cases indicate that Congress is as concerned with protecting the unborn child as a person as it is with pro- tecting other children from injuries inflicted by the negligent action of its own officers and employees. Even more recently, Congress has show its concern with the efforts of some states to promote family plan- ning by abortion. Section 1008 of the Family Planning Services and Population Research Act of 1870, signed by the President on December 24, 1970, provided: . "None of the funds appropriated under this title -61- CPOY BOUND CLOSE IN CENTER shall be used in programs where abortion is a method of family planning."' Pub. Law 91-572, 84 Stat. 1504. Thus, from 1825 to the present Congress has created not less than six major statutory policies al] of which are directed toward treating the unborn child as a person and protecting its right to life and to freedom from invasion of its bodily integrity or privacy, All of these policies are still in force today. Some of the oldest of these have been reaffirmed as late as 197], Others are newer policies that widen the area of pro- tection for the unborn child such as those concerned with health care and redress for tortious invasions of its interests. One of these policies, that of health care for dependents of uniformed services' personnel origi- nated in the Executive Branch of government and was later codified by an act of Congress. Taken together, this long-continued Congressional and Executive construction of the Constitution as contemplating the unborn child as a person and as authorizing these branches of government to provide protection of the life and other interests of the unborn child would seem to foreclose this Court from taking any other view in construing the constitutional safeguards of the person. The fact that since 1967 several states have enacted abortion laws in basic conflict with this long- standing federal policy against abortion except for the necessity of preserving the life or. avoiding a grave peril to the health of the mother does not, by operation of the federal Assimilative Crimes Statute, supra, under- cut that policy. This Court in United States v. Sharpnack, specifi- cally reserved decision upon the point of the effect of the Assimilative Crimes Act "where an assimilated state law conflicts with a specific federal criminal statute, cf. Williams -62- i = ee ee v. United States, 327 U.S. 711, or with’a federal policy. Cf. Johnson v. Yellow Cab., 321 U.S. 383; Stewart & Co. v. Sadrakula, 309 U.S. 94; Hunt v. United States, 278 U.S. 96; Air Terminal Services, Inc. v. Rentzel, 81 F. te 4 611; Oklahoma City v. Sanders, 94 F. 2d 323." ithe position of amicus is that because of the long- standing and current pervasive federal policy against ‘abortion as evidence in six major federal statutory areas and in the Constitution itself the Assimilative Crimes ‘Statute does not operate to assimilate a state statute going beyond the grounds for abortion approved in ‘federal statutes and policy. F. Judged from the standpoint of what it is in itself, the unborn child is a person and justice demands that government recognize this fact and treat the unborn child for what it is. Up to this point, the argumentation of amicus has been directed to application of the well-established riteria for interpretation of the Constitution. The final argument that the unborn child is a person focuses upon what the unborn child is in itself. The relevance of this fergumentation is that all law, and especially constitu- tional law, is a method of accomplishing "justice accord- ing to the law". For this reason, it is important to de- ermine what the child is itself. If the unborn child st be acknowledged to be a person, the Austice demands hat this Court construe the Constitution, especially with egard to the constitutional safeguards of the person, so hat all government, both state and federal, is required 0 treat the unborn child for what it is. Justice has lways been recognized to involve action, whether by an ndividual or private or public group, that accords to lid.at note 9, p. 296. -63- Set Oy a Be SoS as an other or others what is their due, what is due is whe respects the dignity and needs of the person upon whom th, action bears. The classic definition of the person is that pro. vided by St. Thomas Aquinas in his Summa Theologica, He defined the person 7s being "the individual substan, of a rational nature." By the notion of "individual substance" Aquinas meant that the person has an existeng § that is peculiar to itself and different and distinct fr the existence of anything else, an existence that is not a part of the existence of another but an existence whic belongs to it alone: e.g. we refer to "this particular man''. By “rational nature'' Aquinas had in mind "a reality of human nature. With reference to human being, the reality of human nature is the nature or principle within man that moves us to recognize man as being a different kind of being from other animals. Aquinas hag in mind by this principle the cognitive and appetitive rational powers of man, which he discusses in the first part of the second part of his principal work .2 The unborn child at every stage of its develop- ment satisfies sufficiently the concept of the person. The unborn child is an individual substance, differing from its mother and having a life that is remarkably sep- arate from, although obviously dependent upon, its en- vironment even as the child who has just been born and lgasic Writings of St.-Thomas Aquinas. New York: Random House, 1945. Vol. 1, p. 291 (Part I, Question XXIx, Article IL). 2part II-I, Questions VI-XVII, Summa Theologica: Basic Writings of St. Thomas Aquinas Id. Vol. II. pp. 225-316. -64- nan in all his stages is dependent upon his physical and social environment. The unborn child also possesses 2 rational nature in the sense that all that is to be pre- sent in him when born is already formed at an early per- iod in the womb. Professor R. Ashley Montagu of Columbia University has referred to this latter in saying: "Te basic fact is simple: Life begins, not at birth, but at conception. , "This means that a developing child is alive, not only in the sense that he is composed of living tissue, but also in the sense that from the moment of conception, things happen to hin, even though he may be only two weeks old, and he looks more like a creature from another world than a human being--he reacts. In spite of his newness and his appearance, he is a living striving human being from the very beginning. a It ig undisputed that the conceptus, or new fetus, poss- esses at the moment of its formation the so-called genetic code, the transmitter of all the potentialities that make nen human, something that is not present in either their spermatoozoon or ovum. 2 "Mus it might be said that in all essential respects the individual is whoever he is going to become from the moment of impregnation. He already is this while not knowing this or any- thing else. Thereafter, his subsequent develop- ment cannot be described as his becoming some- one he now is not. It can only be described as lg. Ashley Montagu, Life Before Birth, New York: New American Library, 1964, P. 2 °Frederick J. Gottleib, Developmental Genetics (1966) p. 17. -65- VE RAPR Te a Sali art a ak Shit aad angey Sn a hs hte edd ise ae ntnmuaprnerepenecris SER. ee ee a a process of achieving, a process of becoming the one he already is. Genetics teaches that we were from the beginning what we essentially sti): are in every cell and in every generally human attribute and in every individual attribute," ] With respect to the separateness of the unborn child fro, its mother, it has been observed: "The child may be parasitic and dependent, but it is a functioning unit, an independent life, However visceral may be its temporary residence, however dependent it may be before birth--and for some years after birth--it is a living being, with its separate growth and development, with i: separate nervous system and blood circulation, with its own skeleton and musculature, its brai; and hearing and vital organs." 2 Following the implantation of the fertilized egg in the uterus seven or eight days after ovulztion, the develop- ment into the human fetus and embryo is extraordinarily rapid. This development has been described by Dr. Andre Hellegers as follows: "After this second week of pregnancy the zygote rapidly becomes more complex and is now called the embryo. Somewhere between the third and fourth week the differentiation of the embryo will have been sufficient for heart pumping to occur, although the heart will by no means yet have reached its final configuration. At the dpau2 Ramsey, "Reference Points in Deciding About Abortion" in The Morality of Abortion: Legal and Historical Perspectives, John T. Noonan, Jr., K (Harvard Press, 1970) p. 66. David Granfield, The Abortion Decision, Garden City, Doubleday & Co., 1969, p.o5. ~-66- a ppels etd ac eee DAD AP PME Re ON LS SG RRA EAE end of six weeks all of the internal organs of the fetus will be present, but as yet in a rudi- mentary stage. The blood vessels leading from the heart will have been fully deployed, although they too will continue to grow in size with growth of the fetus. By the end of seven we2ks tickling of the mouth and nose of the developing embryo with a hair will cause it to flex its neck, while at the end of eight weeks there will be readable electrical activity coming from the brain. The meaning of the activity cannot be in- terpreted. By now also the fingers and toes will be fully recognizable. Sometime between the & ninth end tenth week local reflexes appear such as swallowing, squinting, and tongue retraction. By the tenth week spontaneous movement is seen, independent of stimulation. By the eleventh week thumb-sucking has been observed and X rays of the fetus at this time show clear details of the skeleton.. After twelve weeks the fetus, now 3-1/2 inches in size, will have completed its brain structure, although growth of course will continue. By this time also it has become poss- ible to pick up the fetal heart by modern elec- trocardiographic techniques, via the mother."1 i [ i = is x, d x & BS br. H.M.I. Liley, the pioneer of the medical science con- cerning the human fetus, which is called Fetology, has recently written concerning his observations of the un- born child through closed circuit ex-ray television: "Te fluid that surrounds the human fetus at 3, 4, 5 and 6 months is essential to both its growth and its grace. The unborn's structure at this lor, Andre Hellegers, "Fetal Development,’ Theo- logical Studies, Vol. 31, No. 1 (March, 1970) a67= ci. sige eid de NE MRO Oe I TD Ae Oe LOS ae ee =e Mi ASE AREY he ee) Tepid. ‘ % res early stage is highly liquid, and although his organs have developed...(t)he head, housing the miraculous brain, is quite large in proportion to the remainder of the body and the limbs are sti) relatively small. ...(H)e is quite beautiful a, perfect in his fashion, active and graceful, is neither an acquiescent vegetable nor a witles, tadpole as some have conceived him to be in the past, but rather a tiny human being as independ. ent as though he were lying in a crib with a blanket wrapped around him instead of his mother! An eminent child psychologist concluded as early as thir, years ago that the development of the human fetus reflec, a mental growth as early as the fourth week.* In the sixth to seventh weeks, the nerves and muscl¢s of the uw. born child work together for the first time.~ By eight and a half weeks the child's eyelids and palms of the hands become sensitive to touch.? By the end of the twelfth week, each unborn child shows a distinct indi- ‘viduality in his behavior due to the difference in in- herited muscle structure from one child to the next, #is facial expressions for this reason are already similar t the facial expressions of his parents. > By the end of li M.I. Liley and B.F. Day, Modern Motherhood: Pregnan Childbirth, and the Newborn Baby, New York: Panton House (1967) pp. 26-27, 2arnold Gesell, The First Five Years of Life, New York: Harper Bros. (1940) 1l. 3Leslie B. Arey, Development Anatomy, Philadel- phia: W.B. Saunders Co. eC) II, VI. 4g,L. Flannagan, The First Nine Months of Life, Simon and Shuster (1962). arnold Gesell, Embryology of Behavior, Harper Bros. (1945) Ch. IV-VI, X. -68- ~~~ LAS LIB PED FELIS Fo LING RENAE ODER CONC RE Nar Me, F “oa CL met ARRON ED BIE APES, RIO the twelfth week, the child can also kick his legs, turn his feet, curl and fan his toes, make a fist, move his thumb, bend his wrist, turn his head, squint, frown, open hig mouth, press his lips tightly together,! At this point also "we may assert that the orzanization of his gsycho-somatic self is now well under way."“ From the twelfth to the sixteenth week, the child grows very rapidly, his weight increasing six times and his height to eight or ten inches as a result of his consumption of ; oxygen and food received from his mother through the pla- cental attachment which is part of the child. In the fifth month, the baby's weight in to one pound and his height to one foot. Hair be grow on his head, eyebrows, and eyes, his skeleton h : ens, and his muscles become much stronger.+ The baby sleeps and wakes just as it does after birth.’ The child lpavenport Hooker, The Prenatal Origin of Be- havior, University of Kansas Press (1952), 2arnold Gesell, The First Five Years of Life, Yew York: Harper Bros. (1940) 65, SLM, Hellman, et al: "Growth and Development of the Human Fetus Prior to the 20th Week of Gestation," timer. J. Obstetrics and Gynecology, Vol. 103, No. 6 (Yar. 15, 1969) pp. 789-800 and Bradley “, Patten, men Embryology, 3d ed. New York: ‘McGraw-Hill (1968), Ch. VII. “Arey, Supra, Ch. II, VI. *Petre-Quadens, O. et al.: "Sleep in Pregnancy: tvidence of Fetal Sleep Characteristics," J. Neurologic Science, Vol. 4, (May-June, 1967), pp. 600-605. «69~ RAR YO ADR? LOSE. A RN ARR MOP IOUY A BL GEY hears and recognizes his mother's voice.+ In the sixth month, the child develops a stron, muscular grip with his hands, starts to breathe regularly and can maintain respiratopy response for twenty-four ’ hours if born prematurely.“ He has about a 10 per cent chance of surviving at this point. The human fetus or unborn child is just as much, patient of the physician as is the mother.” With New op. tical equipment, a physician can look at the amniotic fluid through the cervical canal and predict life- threatening problems that are reflected by a change in the fluid's color and turbidity.° The blood of an RH wy. born baby can now be exchanged through use of a new image intensifier X-ray equipment and the placement of a needle throygh the abdominal wall of the mother into the abdoni- nal cavity of the child. This not only makes it possible to save the life of the child but it also reveals that the child experiences pain and protests it just as vio- lently as a baby in a crib and for this reason must be given sedation and pain relieving medication, © Recent lyood, Carl. "“Weightlessness: Its Implications for the Human Fetus," Obstetrics and Gynecology of the British Commonwealth. Vol. 77 (1970) pp. 333-336; Albert W. Liley, "Aukland MD to Measure Light and Sound Inside Uterus," Medical Tribune Report, May 265 3087: 2Flannagan, Supra. . 3andre Helligers, National Symposium on Abortion, May 15, 1970, Prudential Plaza Auditorium, Chicago, I1l, 4Henry, G. R. "The Role of Amnioscopy in the Prevention of Ante Partum Hypoxia of the Fetus," J. of Obstetrics and Gynecology of the British Commonwealth, Vol. 76 (1969 pp. 790-794, SLiley and Day, Supra, p. 50. wI0e t tase 7 PE AAI ® RAE ELS AILS I ROR TES be DE 16 D> “ wt tad sine hy ad wrk indicates thet the unborn child who is diagnosed as failing to get ade.vaete nutrition may be fed by the phy- sician through introducing nutrients into the amniotic fIvid being swallowed by the child.” The amniotic fluid surrounding the unborn child offers the physician a con- yenient anc assessable fluid thet he can now test in forder to diagnose a long list of diseases, just és he ‘tests the urine and blood of his adult patients.* Some of these diseaces cen be treated before birth.3 Tne new science has now developed to the point thet the fetus can nov be partially delivered and, after giving it an ey- chenge blood trznsfusion, the surgeon can return the un- worn child to the amniotic cavity so tht it can continue its intrauterine growth. This development during the pest eight years indicates that “surgery on the fetus in utero is quite feasible, even.in early pregnancy" anc tht "(p)renatal surgery may soon be tried agcinst a vae [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0097%3A27. Public record. Not legal advice.