Since the 1973 Supreme Court abortion decisions in Roe
v. Wade and Doe v. Bolton there has been a steady stream of noteworthy
legislative developments. The waves of subsequent litigation and legislative
activity show no signs of abating. That is not surprising, since even proponents
of permissive abortion have admitted that the Court's 1973 decisions were
a bit precipitous. Patricia Beyea, director of the American Civil Liberties
Union's "Campaign for Choice," has remarked that the Court's decision "was
too fast and too easy. The grass roots of the country weren't prepared for
it. The issue hadn't developed properly at that level."[1]
Two of the more important forms of response to the Court's decision have
been efforts to restrict or eliminate government funding of abortion, and
proposals for a Human Life Amendment to the U.S. Constitution. Each of these
responses will be considered in turn.
Government Funding of Abortions
On September 30, 1976, the U.S. Congress enacted into law an
End of Page 80 - Begin Page 81
amendment to the Labor-HEW appropriations bill proposed by Representative
Henry Hyde of Illinois. The amendment stated, "None of the funds contained
in this act shall be used to perform abortions except where the life of the
mother would be endangered if the fetus were carried to term." Since the
Hyde Amendment became an integral part of the appropriations bill, the clear
intent of Congress was to eliminate federal subsidies for elective abortions.
Before then the federal government had provided subsidies to the states for
elective abortions through the Medicaid program.
Soon after the Hyde Amendment was passed several pro-abortion
litigants sought injunctions in federal court to have it declared
unconstitutional and to have the federal government directed to pay for elective
abortions. Judge John Sirica dismissed one such case in the Federal District
Court in Washington, D.C., on the grounds that no evidence for irreparable
injury had been shown. The ordinary requirement for a court injunction —
clear evidence that "irreparable injury" would result to the party seeking
the injunction unless an injunction were given — was not, according
to Judge Sirica, satisfied in this case.
At the same time Judge Sirica was hearing this case, the Planned
Parenthood Association of Hudson County, along with a number of physicians
and one "Jane Doe," sought an injunction against the Hyde Amendment in the
Federal District Court for New Jersey. Judge Vincent Biunno dismissed the
case, observing that even should a federal court rule Hyde unconstitutional,
"the Secretary of the Treasury would remain bound to observe the Hyde Amendment
and refuse to draw moneys out of the Treasury for payment of a federal share
to a Medicaid state on account of elective abortions."[2]
Judge Biunno had correctly seen that, irrespective of the question of
constitutionality, the federal judiciary had no authority to compel a federal
agency to spend funds that had not been duly appropriated by Congress. Congress
clearly had not appropriated funds for elective abortions.
What the litigants failed to obtain from two federal courts,
they succeeded in obtaining from a third. Litigants representing Planned
Parenthood, the American Civil Liberties Union, the New York Health and Hospitals
Corporation, one indigent woman, and one
Page 82
doctor sought an injunction against the Hyde Amendment in the Federal
District Court for the Eastern District of New York, in Brooklyn. In October
of 1976, Judge John Dooling granted the plaintiffs' request for an injunction
and issued an order requiring the Secretary of HEW to announce his willingness
to provide reimbursement for elective abortions through the Medicaid
program.
It now appears that Judge Dooling's ruling was based on a mistaken
assumption. The judge mistakenly thought that money for elective abortions
had actually been appropriated by Congress, and that only the "use" of this
money was being restrained by the Hyde Amendment.[3] But,
in fact, not a dime had been appropriated for such use. And Article 1, section
9, clause 7 of the U.S. Constitution reads, "No money shall be drawn from
the Treasury, but in Consequence of Appropriations made by Law." The funds
for elective abortion drawn from the Treasury as a result of Judge Dooling's
ruling between October 22, 1976, and August 4, 1977, when the injunction
was lifted, had not been appropriated by law. Thus the spending of that money
represented a serious violation by the federal judiciary of the constitutionally
mandated authority of Congress over the purse. John T. Noonan, Jr., a professor
of law at the University of California at Berkeley and a well-known authority
on constitutional law, called for a congressional investigation of the
constitutional violations committed during the litigation surrounding the
original Hyde Amendment. [4]
On June 21, 1977, the U.S. Supreme Court decided three cases
that bore directly on government funding of abortion. The decisions rendered
in Maher v. Roe, Beal v. Doe, and Poelker v. Doe hinted at
a retreat from the position taken by the Court in 1973. In Maher v. Roe,
a case involving the administration of the Medicaid program in Connecticut,
the Court ruled that a state participating in the joint federal-state Medicaid
program under Title XIX of the Social Security Act need not pay for elective
abortions when it pays for childbirth. In delivering the opinion of the Court,
Justice Lewis F. Powell, Jr., held that:
Roe did not declare an unqualified "constitutional right to an abortion," as the District Court seemed to think. Rather the right protects the woman from unduly burdensome interferencePage 83
with her freedom to decide whether to terminate her pregnancy. It implies no limitation on the authority of a state to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds. . . .Our conclusion signals no retreat from Roe or the cases applying it. There is a basic difference between direct state interference with a protected activity and state encouragement of an alternate activity consonant with legislative policy. [5]
Acknowledging the sensitive and controversial nature of the issue, Justice Powell also made the following significant statement:
When an issue involves policy choices as sensitive as those implicated by public funding of non-therapeutic abortions, the appropriate forum for their resolution in a democracy is the legislature. [6]
Critics of the Court's original 1973 abortion decisions had contended
for some time that these decisions represented an unwarranted intrusion by
the federal judiciary into the legislative prerogatives of the states. Justice
Powell's remarks seem a tacit acknowledgment of the force of these
criticisms.
While the majority opinion of the Court, represented by justices
Powell, Burger, White, Rehnquist, Stewart, and Stevens, held that the new
decision "signals no retreat from Roe [v. Wade] or the cases applying
to it," the Justices in the minority saw it otherwise. In their dissenting
opinion, Justices William Brennan, Thurgood Marshall, and Harry Blackmun
wrote that "it cannot be gainsaid that today's opinion seriously erodes the
principles of Roe and Doe announced to guide the determination of what
constitutes an unconstitutional infringement of the fundamental right of
pregnant women to be free to decide whether to have an
abortion."[7] The minority Justices correctly discerned
a retrenchment of the Court's position on abortion in the face of the storm
of controversy created by the Court's 1973 rulings.
In the companion case Beal v. Doe, from the state of
Pennsylvania, the question was likewise whether Title XIX of the Social Security
Act, which established the joint federal-state Medicaid program, required
participating states to pay for elective abortions. Pennsylvania had limited
funding to abortions certified by physicians as
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"medically necessary." In delivering the majority opinion of the Court, Justice Powell stated:
We therefore hold that Pennsylvania's refusal to extend medicaid coverage to nontherapeutic abortions is not inconsistent with Title XIX. We make clear, however, that the federal statute leaves a state free to provide such coverage if it so desires. [8]
While relieving the states of any obligation to fund elective abortions,
the Court left open the possibility that they might choose to do so.
Justices Brennan, Marshall, and Blackmun expressed displeasure
with the decision in their minority opinion, partly out of financial
considerations:
The State cannot contend that it protects its fiscal interests in not funding elective abortions when it incurs far greater expense in paying for the more costly medical services performed in carrying pregnancies to term, and, after birth, paying the increased welfare bill incurred to support the mother and the child. [9]
The dissenting Justices here viewed abortion in utilitarian terms, according
to the calculus of a cost-benefit ethic. In other words, since it is cheaper
to eliminate the unborn offspring of the poor than to provide them with the
necessities of life, it is expedient for the state to promote a policy of
active abortion for the poor.
In a third companion case, Poelker v. Doe, the Court
dealt with the decision of John H. Poelker, mayor of St. Louis, to prohibit
abortions in the public hospitals of that city except when there was a "threat
of grave physiological injury or death to the mother."[10]
The city hospitals drew their staffs for the obstetrics-gynecology clinics
from the faculty and students of the St. Louis University School of Medicine,
a Roman Catholic institution opposed to abortion. The U.S. Court of Appeals
for the Eighth Circuit had ruled that the city's policy and the hospital's
staffing practice constituted a "denial of equal protection to indigent pregnant
women" and mandated that St. Louis public hospitals perform abortions. In
its review of the case, the Supreme Court held as follows:
In the decision of the Court of Appeals and in the briefs supporting that decision, emphasis is placed on Mayor Poelker's personalPage 85
opposition to abortion. . . . Although the Mayor's personal position on abortion is irrelevant to our decision, we note that he is an elected official responsible to the people of St. Louis. His policy of denying city funds for abortions such as that desired by Doe is subject to public debate and approval or disapproval at the polls. We merely hold. . . that the Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth as St. Louis has done. [11]
The Justices thus overturned the decision of the lower court, ruling
that the city of St. Louis was under no obligation to provide for elective
abortions in its public hospitals. This decision, which merely acknowledges
the possibility on a "preference" by state and local governments for childbirth
over abortion, again bypasses the more fundamental question of the
rights of the unborn.
The decisions rendered in Maher, Beal, and Poelker
do represent something of a retreat, in the face of widespread public opposition,
from the Court's 1973 position. Nonetheless, these decisions touch simply
on the public financing of abortion; they do not restore to the unborn the
basic legal protection removed by the Court in 1973. They did, however, open
the way to a renewed and even more widespread public policy debate at the
federal, state, and local levels of government.
After the rulings in Maher, Beal, and Poelker were handed
down, Judge John Dooling of Brooklyn lifted his injunction on the 1976 Hyde
Amendment at the mandate of the United States Supreme Court. On the same
day, however, he issued a temporary restraining order that further prevented
the Hyde Amendment from taking effect. Finally, on August 4, 1977, on the
motion of lawyers for Americans United For Life Legal Defense Fund, Judge
Dooling lifted his restraining order, and the 1976 Hyde Amendment was for
the first time in effect.[12] Thus, as Professor Noonan
has pointed out, from October 22, 1976, to August 4, 1977, for nearly 10
months out of the normal 12 months of the life of an appropriations act,
"the quick decision of a federal judge in Brooklyn had ruled the entire country
with the force of law, commanding that Hyde not be
observed."[13] Prior to the lifting of Judge Dooling's
injunction, Representative
Page 86
Henry Hyde himself had pointed to the key constitutional question: "The
Supreme Court has, in effect, given a District Court Judge in Brooklyn the
continuing power to frustrate the clearly expressed Congressional will in
a matter of appropriating tax funds. This turns the doctrine of separation
of powers on its head. Any concern we had about an Imperial Presidency pales
into insignificance before the Imperial Judiciary."
[14]
Meanwhile, debate on the 1977 Labor-HEW appropriations bill
had already begun. After a six-month struggle between the House and the Senate
over the Hyde provisions, a compromise that pleased neither side was reached
on December 7, 1977. The resulting congressional language, as interpreted
and administered by HEW Secretary Califano, provided federal funding for
abortions under the Medicaid program: (1) when it was believed that the woman's
life would be endangered by continuation of the pregnancy; (2) when, in the
opinion of two physicians, continuation of the pregnancy would cause "severe
and long-lasting physical health damage"; (3) when the pregnancy resulted
from an act of rape or incest reported within 60 days.[15]
This compromise language was more permissive than that desired by the House,
which supported only the first of the provisions above, and less permissive
than the language desired by the Senate. It now appears that members of the
House, who stand for re-election more often than do Senators, were more in
accord with the growing mood of opposition to the permissive abortion policies
of the Supreme Court. Critics of the compromise language were quick to point
out that these provisions were open to widespread abuse, since "severe and
long-lasting physical health damage" could be interpreted within the very
elastic definition of "health" adopted by the Court, and the 60-day reporting
period for alleged cases of rape made immediate confirmation of the crime
less likely to obtain. The Carter Administration was later reported to have
doubts about the second provision, wanting Congress to consider reducing
the reporting time for rape and incest. [16]
The third round of the congressional struggle over federal funding
of abortion began on June 13, 1978, when the House of Representatives voted
to keep the original 1976 version of the Hyde language in the current $58
billion Labor-HEW appropriations bill.
Page 87
The language in question provides that "none of the funds provided for
in this act shall be used to perform abortions except where the life of the
mother would be endangered if the fetus were carried to
term."[17] After protracted debate between House and Senate
conferees, a weaker compromise bill, essentially similar to the 1977 one,
was passed by Congress during the closing days of the session.
On November 20, 1979, both houses of Congress agreed on the
following compromise language: "None of the Federal funds provided in this
act shall be used to perform abortions except where the life of the mother
would be endangered if the fetus were carried to term; or except for such
medical procedures necessary for the victims of rape or incest when such
rape or incest has been reported promptly to a law enforcement agency or
public health service."
On January 16, 1980, this annual abortion restriction to the
Labor/HEW appropriation bills was held unconstitutional by Judge John Dooling
of the federal district court in Brooklyn, New York. Judge Dooling ruled
that all "medically necessary" abortions must be funded. On June 30, 1980,
however, the U.S. Supreme Court, in Harris v. McRae, overturned Dooling,
ruling that neither under the Constitution nor under Title XIX of the Social
Security Act (Medicaid) is there an obligation to fund abortions even when
deemed "medically necessary." "Nothing in Title XIX as originally enacted,"
read the majority opinion," or in its legislative history, suggests that
Congress intended to require a participating state to assume the full costs
of providing any health services in its Medicaid plan."
Harris v. McRae clearly represented a victory for the
pro-life position. As a result of this ruling and the conservative political
trends reflected in the November, 1980, election, on May 21, 1981, the Senate
voted to ban all federal funding of abortion except in cases where the life
of the mother would be endangered by the continuation of the pregnancy. This
Senate vote signaled the end of virtually all federally funded abortions,
and was symptomatic of the growing influence of the pro-life movement in
the U.S. Congress.
Human Life Amendments
Opponents of the Supreme Court's 1973 abortion decisions
have
Page 88
concluded that only a Human Life Amendment to the U.S. Constitution
can effectively restore legal protection for the unborn in this country.
A complete reversal of the decision by the present court seems very unlikely,
and the problem is too urgent to wait for a reversal by a Court with a different
membership. Other means of redress short of an actual constitutional amendment
also appear inadequate. It has been pointed out, for example, that Article
III, Section 2 of the Constitution gives Congress the authority to regulate
the jurisdiction of all federal courts, including the Supreme Court. The
Congress, it is argued, could by normal legislative action withdraw federal
jurisdiction from all abortion cases, leaving the state supreme courts with
final jurisdiction. Even if this were workable, given existing legislation
restricting Congress' power to control judicial jurisdiction, it would be
an unsatisfactory remedy, since all the prior federal decisions would remain
as precedents, and state courts might be influenced to follow the reasonings
and conclusions of the Supreme Court.[18] This approach
would have the further disadvantage of lacking uniformity, since rights of
the unborn recognized in one state could be denied in another. This "half
slave and half free" approach would be unworkable in the long run. Nevertheless,
such a proposal might still be considered as a first, temporary step toward
saving unborn human lives.
It has also been pointed out that Congress has the power to
enforce the Fourteenth Amendment by appropriate legislation. The Fourteenth
Amendment provides that "no person shall be deprived of life, liberty, or
property without due process of law." Hence it has been suggested that Congress
could remedy the abortion decisions by simply enacting a law defining the
term "person" in the Fourteenth Amendment to include the child in the womb.
Such a "Human Life Bill" has been proposed by Senator Jesse Helms (R-NC)
and Representative Henry Hyde (R-IL).
This proposal, however, may still be subject to judicial veto.
The Supreme Court may, for example, declare such a law unconstitutional on
the theory that a child in the womb is inherently incapable of personhood
with respect to the Fourteenth Amendment. [19]
For the foregoing reasons, it appears that a constitutional
amendment is necessary to restore protection to unborn human lives. It is
a
Page 89
difficult and time-consuming process, but it seems well justified by
the importance of the issue and the gravity of the current situation. It
would represent a definitive and uniform statement of national policy on
an issue that ultimately, like slavery in the nineteenth century, must be
brought to a decisive conclusion. Such an amendment would be consistent with
the general trend in American legislation and political concern that has
through history extended basic human rights to more and more previously
disenfranchised groups of people.
The Process of Amending the Constitution
According to Article V of the Constitution, amendments may be
proposed in either of two ways: by two-thirds of both houses of Congress
or by a convention called by Congress in response to the application of
two-thirds (34) of the state legislatures. Proposed amendments, if then ratified
by three-quarters (38) of the states, become part of the Constitution. A
number of proposed Human Life Amendments have already been offered by members
of Congress, and the Senate Subcommittee on Civil and Constitutional Rights
has held extensive hearings on many aspects of the issue.
[20]
Although the Constitution has never been amended through the
convention method, the viability of this option should not be discounted.
During the 1960s Congress received 32 state petitions calling for a
constitutional convention in response to the Supreme Court rulings in Baker
v. Carr and Reynold v. Sims, which required that both houses of
bicameral state legislatures be apportioned strictly on a population
basis.[21] In all likelihood it was only the untimely death
of Senator Everett Dirksen, the key leader in the drive for a constitutional
convention, that prevented its eventual convocation. The history of debates
surrounding Article V of the Constitution at the original Philadelphia Convention
indicates that the framers of the Constitution clearly intended the "convention
option" at state initiative to have parity with the method of proposing
amendments at the initiative of Congress. [22]
Page 90
Proposed Amendments
Amendments already proposed by members of Congress have been
of two forms: so-called "states' rights" amendments, which would restore
to the states the power to protect, within their jurisdictions, the lives
of the unborn, and amendments of a more inclusive nature, which would make
the right to life of the unborn an explicit part of the Constitution. We
will examine the respective merits of each type of amendment in turn.
On September 17, 1975, Senator Quentin Burdick (D-ND) introduced
the following proposal in the Senate's Subcommittee on Constitutional
Amendments:
The Congress within federal jurisdictions and the several States within their respective jurisdictions shall have power to protect life including the unborn at every stage of biological development irrespective of age, health, or condition of physical dependency.
This "states' rights" amendment would return to the states the power
to regulate or prohibit abortions at each stage of pregnancy. In federal
jurisdictions such as the District of Columbia the Congress would exercise
such powers.
Some believe the states' rights approach has the advantage of
reflecting the pluralistic values of the American
people.[23] At present a national consensus on abortion
has yet to emerge, it is argued, and thus the issue would best be left to
the workings of the legislative processes of the several states. It is also
argued that the dynamics of congressional politics would give such an amendment
a better prospect of securing congressional approval than other types of
Human Life Amendments. Any amendment on which the state legislatures had
to vote would have the effect of bringing the issue before the general public.
Placing a Burdick type of amendment before the states would accomplish the
goal of making the debate nationwide and inescapable, and this in itself
would be a considerable gain.
On the other hand, a states' rights amendment has the disadvantage
of not ensuring a uniform national policy on so fundamental an issue as the
protection of unborn human life. Very protective laws in one state could
be effectively negated by very permissive
Page 91
laws in a bordering state. And there would be the further disadvantage
of not guaranteeing uniformity within a given state. The rights of the unborn
recognized in one legislative session could be removed in the next. That
would place the unborn at the mercy of shifting legislative majorities and
bitter political campaigns.[24] For these reasons, the
states' rights option is not the best means for securing the rights of the
unborn.
On June 28, 1983, the Senate voted on such a states' rights
amendment, the "Human Life Federalism Amendment" sponsored by Senators Orrin
Hatch (R-UT) and Thomas Eagleton (D-MO). This proposal, which simply stated
that "a right to abortion is not secured by this Constitution," would not
have directly outlawed abortions, but would have allowed the states, and
possibly Congress, to restrict access to abortions. The Senate voted 50-49
against the measure, 18 votes short of the two-thirds majority needed to
send an amendment to the states for ratification.
Other proposed Human Life amendments have sought to make a uniform
policy on the rights of the unborn an explicit and integral part of the
Constitution. During the Ninety-fourth Congress, Senate Joint Resolution
6 was introduced by Senator Jesse Helms of North Carolina, and Senate Joint
Resolution 11 by Senator James Buckley of New York. The pertinent parts of
these resolutions are as follows:
S.J.R. 6: Section 1. With respect to the right of life guaranteed in this constitution, every human being, subject to the jurisdiction of the United States, or of any state, shall be deemed, from the moment of fertilization, to be a person and entitled to the right of life.
Section 2. Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.
S.J.R. 11: Section 1. With respect to the right of life, the word 'person' as used in this article and in the fifth and fourteenth articles of amendment to the Constitution of the United States, applies to all human beings, irrespective of age, health, function, or conditionPage 92
of dependency, including their unborn offspring at every stage of their biological development.
Section 2. No unborn person shall be deprived of life by any person: Provided, however, that nothing in this article shall prohibit a law permitting only those medical procedures required to prevent the death of the mother.
Section 3. Congress and the several states shall have the power to enforce this article by appropriate legislation within their respective jurisdiction. [25]
These proposals have the distinct advantage of enunciating, as a uniform
national policy, the fundamental right to life of all human beings. As we
have seen, Christians, who recognize the intrinsic sanctity of human life
created in the image of God, have a clear biblical mandate to affirm these
principles. Such amendments would lift the basic right to life of the unborn
out of the shifting tides of political opinion and legislative compromise.
Numerous criticisms have been raised against such proposals.
It is often said, for example, that one cannot "legislate morality" and that
a Human Life Amendment attempts to do precisely that. As noted in the previous
chapter, this objection fails to perceive the indispensable relationship
between law and morality. Unless laws are grounded in moral principles, they
amount to the arbitrary imposition of the will of the strong upon the weak.
Laws protecting human life and property in all cultures have not been based
on mere expediency, but on the moral conviction that it is inherently
right to accord such protection. Our own generation has witnessed
efforts by the civil rights movement and environmentalists to have their
moral commitments realized with the force of law in national policy. Shared
moral principles inevitably become embodied in the legislation of a society.
That was certainly the case in the struggle to abolish slavery in the nineteenth
century.
While the distinctive tenets of a given religious group may
not be appropriate for civil legislation (e.g., mandatory baptism and church
attendance), the larger moral issues are not confined to a particular sect
and are therefore relevant to civil law. Respect for innocent human life
is not a peculiar sectarian belief. It is a necessary premise for any rational
and just society. Since, in the current
Page 93
situation, passage of a Human Life Amendment would require a
national and not merely Christian consensus, objections concerning
the separation of church and state are not even relevant. Passage would reflect
a general recognition, among believers and unbelievers alike, of the sanctity
of life.
While the First Amendment bars the legislation of narrowly sectarian
tenets, it does not bar the enactment of generally held moral principles.
Certainly arguments for the sanctity of human life should not be disqualified
from public discussion simply because they are offered on religious grounds;
they are also offered by many on secular or "natural law" grounds. Otherwise
it would be impossible to legislate against murder and stealing, since these
acts are prohibited by religious as well as secular teaching.
In recent years evangelical Christians have been victims of
a popular misunderstanding of the separation of church and state. It seems
most people now take that principle to mean the de facto separation
of all Christian influence from matters of public policy. Such a separation
amounts to active discrimination against biblical values, and the virtual
establishment of secular humanism as the official creed of the United States.
Christians must recognize that such discrimination against their values is
warranted by neither the Constitution nor the Bible. Once that is clearly
understood, evangelical Christians can again become powerful and effective
agents of righteousness in American public life, as salt and light in the
midst of a morally dark and decaying culture.
Other critics have argued on pragmatic grounds that a Human
Life Amendment, like Prohibition, would simply prove unworkable. This objection
overlooks a basic difference between Prohibition and such an amendment.
Prohibition was basically negative, did not touch basic rights, and in fact
negated a preexisting right. A Human Life Amendment would be positive in
its orientation and would affirm the most basic of all rights, the right
to life itself.[26] It would naturally and logically extend
to the unborn protections successively accorded to other disadvantaged groups
during our nation's history. And it would require introducing no legal principles
foreign to American legislative history. In fact, it would help restore the
legal protections accorded the unborn prior to the
Page 94
Court's 1973 decisions, and would further make such rights more explicit
and nationally uniform.
What about the argument that a Human Life Amendment would not
eliminate abortions, but would simply make those yet performed clandestine
and illegal? The argument is correct as far as it goes. But no law is perfectly
observed in an imperfect and fallen world. If the prospect of complete observance
were a prerequisite for the enactment of a given law, there could be no laws
prohibiting murder and rape. The intrinsic evil of such acts, and the common
sense of justice, however, require that laws prohibit them, notwithstanding
difficulties of enforcement. Even short of eliminating illegal abortions,
a Human Life Amendment would reduce the total number of abortions and therefore
save many unborn human lives.
It is sometimes alleged that such an amendment would discriminate
against the poor. The rich, it is said, would be able to circumvent the law
and secure abortions in any case. This objection is a red herring, in that
it displaces a question of principle with a circumstantial and pragmatic
concern. As Professor Robert Byrn has observed, those who are "genuinely
concerned for the poor let the tail wag the dog when they raise this objection
to a human life amendment. They make the vices and evasions of some of the
rich the norm for our public policy and for the constitutional protection
of our most fundamental rights."[27] The rich usually are
in a better position to circumvent any given law, but that calls for better
enforcement, not abolition of law.
A final objection is that a Human Life Amendment would render
all abortions punishable as murder in the first degree. This, however, is
not true. While taking unborn human life is a form of homicide, the law does
not classify all homicides as murder in the first degree. In drafting such
laws legislatures have the discretion to consider such factors as the degree
of malice, mitigating circumstances, and the requirements of community
security.[28] The last factor, for example, might lead
a given state to punish with severity particular crimes, such as killing
a police officer in the line of duty. Judges also take mitigating circumstances
into account in imposing sentences. All these factors would apply in drafting
and enforcing laws on abortion.
Chapter 5 || Epilogue || Table of Contents
1. Quoted in "Abortion Under Attack," Newsweek,
June 5, 1978, p. 37.
2. Cited in John T. Noonan, Jr., "Should Congress Investigate
the Treasury's Funding of Abortion?" Human Life Review 4, no. 2 (1978):
15. The present chapter is indebted to this very helpful article for information
concerning the litigation pertaining to the Hyde Amendment.
3. Ibid., p. 17.
4. Ibid., pp. 11-21.
5. Maher v. Roe No. 75-1440, cited in Legal Defense
Fund Newsletter no. 6, June, 1977, p. 1.
6. Ibid., p. 2.
7. Ibid.
8. Ibid., p. 3.
9. Ibid.
10. Ibid., p. 4.
11. Ibid., p. 5.
12. Lex Vitae 1, no. 1 (1977): 1.
13. Noonan, "Should Congress Investigate the Treasury's
Funding of Abortion?", p. 19.
14. Quoted in Lifeletter, March 8, 1977, pp. 1,2
15. "Abortion Under Attack," p. 42.
16. Ibid.
17. Lifeletter, June 16, 1978, p. 1.
18. Senator Jesse Helms, "A Human Life Amendment," The
Human Life Review 3, no. 2 (1977): 22.
19. Ibid.
20. Ibid., p. 23.
21. Sam J. Ervin, Jr., "The Convention Method of Amending
the Constitution," Human Life Review 3, no. 2 (1977): 51, reprinted
from the Michigan Law Review 66, no. 5 (1968).
22. Ibid., p. 55.
23. David W. Louisell, "The Burdick Proposal: A Life-Support
Amendment," Human Life Review 1, no. 4 (1975): 10.
24. Robert M. Byrn, "A Human Life Amendment: What Would
It Mean?" Human Life Review 1, no. 2 (1975): 53.
25. Cited in Human Life Review 1, no. 2 (1975): 102,
103. Other amendments have been proposed, but S.J.R. 6 and S.J.R. 11 listed
here display the representative features of such amendments.
26. Robert M. Byrn, "On the Objections to an Amendment,"
Human Life Review 2, no. 4 (1976): 126.
27. Ibid., p. 127.
28. Robert Byrn, "A Human Life Amendment: What Would It
Mean?", Human Life Review 1, no. 2 (1975): 61.