Abortion And Public Policy
By John M. Swomley
John Swomley is a native of Harrisburg, Pennsylvania. He is a graduate of Dickinson College and has an M.A. and S.T.B. from Boston University and a Ph.D. in Political Science from the University of Colorado. He is a member of Phi Beta Kappa and Tau Kappa Alpha honorary societies. From 1960-1984 he was Professor of Christian Social Ethics, Saint Paul School of Theology in Kansas City, Missouri, and is now Professor Emeritus.
My purpose in this article is to demonstrate that abortion per se is not morally wrong, but should be left to private decision and medical judgment. The alternative to private decision and medical judgment would be compulsory pregnancy if the government should adopt laws prohibiting or restricting abortion prior to the third trimester when there is evidence of viability. In stating the case for the right of a woman to terminate an unwanted pregnancy, it is essential first to define abortion and examine the claim that a human being exists at conception, responding to the question, "When does human life begin?" Thereafter, I shall examine the claims made on behalf of fetal life as over against the rights of existing persons, public policy with respect to women, the issue of covert violence against women inherent in compulsory pregnancy, questions of conscience, and finally, some specific legislative proposals.
The current anti-abortion movement in the United States began with the Pro-Life Pastoral of the Catholic bishops in 1975.1 It is therefore appropriate to accept the official Roman Catholic church definition that any intentional termination of a pregnancy after the moment of conception is an abortion.2
It is misleading, however, to speak of "a moment of conception" when sperm meets egg following sexual intercourse. Conception is not complete or viable until the fertilized egg is implanted in the uterus, which generally occurs about ten days to two weeks after ovulation.3 Up to fifty percent of fertilized eggs do not implant, and in those cases it is not possible to speak of conception.4 Except in cases of in vitro fertilization, it is impossible to know that fertilization has taken place until implantation occurs.5
Charles Gardner, who did his doctoral research on the genetic control of brain development at the University of Michigan Medical School's Department of Anatomy and Cell Biology, writes, "The 'biological' argument that a human being is created at fertilization . . . comes as a surprise to most embryologists . . . for it contradicts all that they have learned in the past few decades."6 Gardner notes that
in humans when two sibling embryos combine into one . . . the resultant person may be completely normal. If the two original embryos were determined to become particular individuals, such a thing could not happen. The embryos would recognize themselves to be different . . . and would not unite. But here the cells seem unaware of any distinction between themselves .... The only explanation is that the individual is not fixed or determined at this early stage.7
Gardner also writes, "The fertilized egg is clearly not a prepackaged human being .... Our genes give us a propensity for certain characteristics, but it is the enactment of the complex process of development that gives us our individual characteristics. So how can an embryo be a human being?"8 He further states, "The information required to make an eye or a finger does not exist in the fertilized egg. It exists in the positions and interactions of cells and molecules that will be formed only at a later time."9
Such research and discoveries lead to the conclusion that a developmental process taking about nine months produces a human being. Therefore the idea that a human exists at conception is a theological statement rather than a medical or scientific fact. Gardner concludes that "[f]ertilization, the injection of sperm DNA in the egg, is just one of the many small steps toward full human potential. It seems arbitrary to invest this biological event with any special moral significance .... It would be a great tragedy if, in ignorance of the process that is the embryo, state legislators pass laws restricting individual freedom of choice and press them upon the people. The embryo is not a child. It is not a baby. It is not yet a human being."10
The use of the term "baby" or "child" or "human being" to describe an embryo or fetus is a propaganda device known as prolepsis which Webster's Dictionary, defines as "an anticipating, especially the describing of an event as if it had already happened," when in fact it may be months away or may never happen. For example, no one who eats a fertilized hen egg says he has just eaten a chicken, nor is the crushing of an acorn the destruction of an oak tree.
Since the driving forces to make abortion a public policy issue are a few Christian groups, including the Catholic bishops and followers of some Protestant Fundamentalist leaders,11 it is worth citing Biblical answers to the key question in the abortion controversy: "When does human life begin?" The Bible's clear answer is that human life begins at birth with breathing. In Genesis 2:7, God "breathed into his nostrils the breath of life and man became a living being" (in some translations, "a living soul.") The Hebrew word for a human being or living soul is nephesh, the word for breathing. "Nephesh" occurs hundreds of times in the Bible as the identifying factor in human life. This is consistent with modern medical science, as a group of 167 distinguished scientists and physicians told the Supreme Court in 1988, "the most important determinant of viability is lung development," and "viability has not advanced to a point significantly earlier than 24 weeks of gestation" because critical organs, "particularly the lungs and kidneys, do not mature before that time."12
In the Christian scriptures, the Incarnation, or the "Word made Flesh"13 was celebrated at Jesus' birth, not at a speculative time of Mary's conception. The biblical tradition is followed today as we count age from the date of birth rather than from conception, a date people do not know or seek to estimate. The state issues no conception certificates, only birth certificates. It issues no death certificates for fertilized eggs that do not implant or for miscarriages. The 167 scientists stated,
Fetal brain development is obviously a long and incremental process. Brain cells in the neocortex, the portion of the brain in which the processes we call thought, emotion and consciousness occur, must be sufficiently developed to permit this kind of neurological activity to take place. At about 28 weeks of gestation, brain development is marked by the sudden emergence of dendritic spines in the neocortex. Dendritic spines are essential components in the brain's cellular circuitry.14
The brain is crucial in human life. Michael V. L. Bennett, chair of the Department of Neuroscience, Albert Einstein College of Medicine, wrote that "personhood goes with the brain and does not reside within the recipient body....There is none, not heart, kidney, lung or spleen, that we cannot transplant, do without, or replace artificially. The brain is the essence of our existence.15 It cannot be transplanted.
One recent study showed that fifty-one percent of all abortions in the United States occur before the eighth week of pregnancy; more than ninety-one percent by the twelfth week, in the first trimester, and more than ninety-nine percent by twenty weeks,16 which is about four weeks before the time of viability when ten to fifteen percent of fetuses can be saved by intensive care.17 This means that there is no brain or neocortex for the developing embryo to sense pain or pleasure.
Up to fifty percent of fertilized eggs do not implant.18 Of those that do, between twenty percent and fifty percent miscarry.19 Of all implantations, only about ten percent are successful pregnancies.20 If there is objection to the prevention of implantation as a method of abortion, on the assumption that this is the taking of life, then nature or God would be the greatest killer, because there are more spontaneous preventions of implantation than those performed medically. In other words, there is no natural or divine evidence that every conception should eventuate either in implantation or in birth. This is consistent with the previous assertion that a fetus, as well as a fertilized egg, is a potential rather than an actual human being.
Public policy in the United States is and should be guided by scientific considerations rather than theological claims that are inconsistent with medical research. The Constitution of the United States is a secular document which gives no authority to government to legislate theological assertions or to prefer the theological doctrines of one or several religious groups over others.21 A large number of religious groups in the United States do not accept a "moment of conception" theology or view a fetus as a person or human being.22
Public policy must defend the rights of existing living persons as over against religiously based claims made on behalf of fetal life. There are generally three claims made for fetal life other than the claim of human being or personhood, which has been discussed above.23 The first claim is that society should protect innocent human life that is unable to protect itself. The term "innocent," originally used by various popes, refers to fetal life which has committed no sin.24 Yet the Roman Catholic Church has proclaimed only one person, Mary, the Mother of Jesus, as having an "immaculate" conception and hence free from original sin.25 In any event, public policy cannot be founded on theological claims to innocence.
There is another meaning of "innocence" which comes from two Latin words, in (not) and nocere (to harm), and therefore means "not harmful or dangerous."26 However, it is precisely the fact that some pregnant women (and their physicians) view the fetus as harmful or threatening to their health or welfare and hence leads them to consider abortion.27
A second claim made on behalf of fetal life is that there is a right to life that takes precedence over the life or health or welfare of the pregnant woman. In discussing this claim we must distinguish between a virtue, that is, doing something that may be considered desirable, and a right. If I am walking along the bank of a river or lake and someone who cannot swim falls or jumps in, we could argue that I ought also to jump in, to rescue the drowning person, even if my own life is at stake. But the person who jumps or falls in cannot claim that I must jump in because he/she has a right to life. The mere fact that I ought to rescue another does not give that person a right against me.28
The common law rule is that we have no duty to save the life of another person, unless we voluntarily undertake such an obligation as a lifeguard does in contracting to save lives at a swimming pool.29 Neither is there a biblical mandate that each of us is morally required to risk our lives to save the life of another. Jesus treated as highly exceptional and an evidence of great love the act of a person who would "lay down his life for his friends."30 No woman should be required to give up her life or health or family security to save the life of a fetus that is threatening her well being. At the very least she is entitled to self-defense.31 On the other hand, many women are willing to sacrifice their health and future in order to have one or more children. The community that respects the autonomy of women must respect equally their freedom of choice.
A third claim for fetal life is that no fetus should be denied the right to be born and make the most out of life. Let us take the case of in vitro fertilization, a process whereby male sperm fertilizes a female egg in a test tube or dish. It has been argued that such a fertilized egg has all the rights of a living person. Does it have the right to be implanted in a woman's uterus, without which there could be no expectation of childbirth? In vitro fertilization is forbidden by the Vatican statement, "Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation."32 Fr. Donald McCarthy of the Pope John XXII Medical, Moral and Educational Center in St. Louis has called for the endowment of civil rights to every fertilized egg, including the right not to be created at all except as a consequence of "personal, self-giving and conjugal love."33 Here two fictional legalisms conflict: a human being exists at "conception," but that human being has a right not to be implanted. Who makes that decision? Certainly not the fertilized egg. Why is this any different from saying that an unwanted fetus has a right not to be born?
There are at least two rights which must be considered in answering the question whether the fact of sexual intercourse implies the right of the fetus to be born. The first is the right of a community, such as a state, to ensure its survival. A community following a devastating war or a plague that had virtually destroyed all human life might expect a pregnant woman to bear the child. By the same logic, any community, whether a family or a state, which already had more people than it could furnish with food and water, could restrict the number of childbirths.34 There are already children dying by the thousands in some parts of the world because of too little water and food and no foreseeable prospect of change.35 What is the inherent right of thousands of fetuses to be born if they will jeopardize the existence of those already born?
The shortage of water in the southwestern United States is a familiar and serious problem.36 Predictions for the Mideast are that Jordan's natural water supply will be exhausted by 2010. "Jordan then will be totally dependent on rain water and will revert to desert. Its ruin will destabilize the entire region .... All Middle East economies must be restructured away from agriculture because of a lack of water."37
The second right that takes precedence over claims that a fetus has a right to be born is that of the individual rights of existing human beings. The moral foundation of democracy is individual liberty: the freedom to choose what to believe, what to say, what to read, and what to do, free from government interference. The exception to this is that such freedom must not interfere with the freedom or rights of others.
The government has no moral right to compel its citizens to do anything unless the failure to do so would endanger the community or the security of the state, such as fighting a forest fire that threatened a town or accepting vaccination against a rapidly spreading contagious disease. However, there would be no moral right to compel only certain classes of citizens-for instance, women, racial minorities, or those over sixty-five to engage in such activity.
The government, for example, even by majority vote of the legislature, has no moral right to tell a married couple that they must bear children or must never bear children. There is no moral right to tell a woman, married or unmarried, that she must become or remain pregnant against her will. Compulsory pregnancy is a form of slavery, just as compulsory labor, referred to in the Constitution as involuntary servitude,38 is contrary to human freedom. Compulsory pregnancy may aggravate a woman's serious health problems, drastically affect her work and income, and hence endanger the stability of her family and the well-being of existing children.
The fact that a woman has had sexual intercourse with her spouse or partner is not a contract for pregnancy. The Roman Catholic hierarchy doctrine that every sexual act must be open to procreation assumes that a sexual relation is an implied contract for pregnancy.39 If that, for Catholics, is enforceable by church action, it certainly should not be applied to non-Catholics who do not accept that teaching, and therefore it should not directly or indirectly become government law. Sometimes overzealous "right to life" advocates compare Dred Scott and the Supreme Court case40 bearing his name with a similar lack of rights accorded to fetal life.41 This is a faulty analogy. A fetus has never been a person in Anglo-Saxon law.42 Persons exist only at birth. The issue in the Dred Scott decision was whether a slave recognized as property in slaveholding states could become a citizen of the United States if a free state conferred its citizenship upon the slave.43 The Court said not. However, this judgment did not apply to all blacks for the Court said, "And if persons of the African race are citizens of a State, and of the United States, they would be entitled to all of these privileges and immunities in every State and the State could not restrict them."44
The similarity or parallel between the Dred Scott decision and the Court's abortion decision is this: The abolitionists who wanted to end human slavery fought against the Dred Scott decision. Those who want women to be enslaved by laws requiring childbirth if a woman is impregnated by rape, incest, failure of contraception, etc. are fighting against the Supreme Court decision legalizing abortion. The abolitionists fought for the freedom and right of self-determination of black slaves. The pro-choice movement fights for the right of women legally to determine their own destiny and to control their bodies. Dred Scott symbolized the inequality of black slaves with free whites and free blacks. The problem today is that "right to life" political and religious leaders want to take millions of women and make them as a class not only unequal to men but subordinate to the fetuses they carry in their wombs.
This is well illustrated by an August 19, 1988 New York Times editorial, which said of the 1988 Republican Party platform that when "given a choice between saving the fetus or the mother, the mother must die."45 Marjorie Bell Chambers, platform committee member from New Mexico, moved to amend the proposed platform language "that the unborn child has a fundamental right to life which cannot be infringed" by dropping the last four words.46 She argued that in the conflict between saving the fetus or the life of woman, the phrase "cannot be infringed" meant "that men and fetuses have a right to life at all times, but women lose that right when they become pregnant."47 Those opposing Ms. Chambers' amendment unequivocally argued that a fetus took precedence over a woman's life.48 The platform committee defeated her amendment fifty-five to thirty-three with eleven abstentions.49
The political problem involved in all public policy discussion of abortion is the status of women in our society. Only in this century have women had the right to vote.50 Only recently have women had access to contraceptives and family planning.51 Women have to struggle against church and state to gain equality with men: The Roman Catholic Church's official position determined by Papal doctrine is quite specific about the role of women in that "a woman is by nature fitted for home work . . . not suited for certain occupations."52 Pope John Paul II said that paid work outside the home is the abandonment of the role of motherhood, which includes "taking care of her children" and "is wrong from the point of view of the good of society and of the family when it contradicts or hinders these primary goals of the mission of a mother."53
The Pope failed to realize that many families including actual children could not exist in modern society without both parents working outside the home, to say nothing of women who head single-parent families. These factors may lead a woman who cannot otherwise hold her family together, sometimes with the additional care of an invalid husband or parent, to choose an abortion. The root of the problem is not in modern economics, but in stereotyping of women and in assigning different treatment to them than to men.
Women, whose lives and freedom have been largely at the mercy of men for centuries, must make or be involved in decisions that affect their lives, their futures, their families. To refuse on principle to permit a woman to consider her life or welfare when it seems threatened by pregnancy is to say that only men are the recipients of political freedom and responsibility. It is also to say that the primacy of the right to bodily life of the fetus places all other considerations, including the health, worth, and dignity of women, on a lower level.
The pro-life position is really a pro-fetus position and the pro-choice position is really pro-woman. Those who take the pro-fetus position define the woman in relation to the fetus. They assert the rights of the fetus over the right of a woman to be a moral agent or decision maker with respect to her life, health, and family security.54
What right does a woman have to an abortion? One answer is that the rights of living persons take precedence over any rights of potential persons, just as immediate or present needs take precedence over probable future or potential needs. This question can also be stated as: What right does anyone have to impose mandatory pregnancy on a woman? The ethical question is not whether abortion can be justified, but whether we focus on an embryo or fetus as the object of value or whether we focus on the woman who as a free moral agent must have freedom of choice.
In addition to the fact that, like Dred Scott, women have not received equal treatment with men, women experience violence in our macho or male-dominated society. The overt type of violence includes such acts as rape, spousal abuse, and sexual harassment.55 The covert type, frequently hidden behind the myth that motherhood and care of children define a woman's role, has been institutionalized in religious, economic, and political systems and enforced by legislation and custom.56 One illustration of this covert violence against women is inherent in what is, in fact, compulsory pregnancy. A woman made pregnant through incest or rape (and rape can take place inside as well as outside of marriage) has no choice; others have controlled her body and well-being. Another no-choice situation involves women compelled to remain pregnant because of a failed contraceptive. During the three-year period 1979-1982, "there were 1.61 million contraceptive failures per year" and "the typical woman would experience 0.81 failures during her lifetime."57
Today almost half of the women seeking abortions do so because of a failed contraceptive.58 The failure rate of barrier methods is in the ten to eighteen percent range; of birth control pills, one to four percent; of Norplant, .04%; and of natural family planning, which, like the rhythm method, is based on periodic abstinence from sexual relations, twenty to thirty-five percent.59
There is violence also in the idea embodied in some legislation that a poor woman may have a publicly funded abortion only if the pregnancy endangers her life.60 This means that any damage to a woman's health short of death is "acceptable" violence; suffering brought by exacerbation of existing health problems such as diabetes or heart disease and the shortening of her life thereby are "acceptable" violence. The imperiling of a woman's mental health is also a type of violence.
When it is assumed that a woman, by the fact of intercourse, "asks for" pregnancy, there is an element of puritanical punishment or revenge in the idea that once pregnant she must be compelled to remain so. The man, who is equally responsible for the pregnancy, is not similarly "punished." In effect this would mean that a woman who does not want a child, but who becomes pregnant from rape, incest, failed contraception, or ignorance about her reproductive processes, must serve as a surrogate mother without pay for the benefit of another person or couple, since the major proposed alternative to abortion is adoption. Forcing women to bear children they do not want and cannot support or care for, and then go through the trauma of giving them away is a form of violence.
The New York Times on July 27, 1984, reported that there were more than 50,000 legally available children in the United States who had not been adopted.61 An official of the National Adoption Exchange said there was no problem "when it came to healthy white babies . . . [but] [w]e have children who have emotional, physical or developmental disabilities . . . and a large number are black or Hispanic."62 The unwanted fetus whom the right-to-life advocates say should not be aborted is often unwanted by parents seeking an adoption and must therefore be cared for by the state.63
What about fetal deformity? Legislators considering banning of abortions do not generally consider this an exception, however severe.64 Yet such a birth, besides being a serious psychological blow to a woman, might involve full-time child care for her many decades.
Violence occurs in the requirement of parental notification by teenagers before they can get an abortion. Most teenagers who seek an abortion do consult at least one parent, but some feel unable to do so for various reasons, such as fear of being beaten or killed, exiled from the family, or psychologically rejected.65_ At least one teenager, to my knowledge, committed suicide in the mistaken notion that she could not face her parents. In most of these cases there is a different standard for the female, who has been made pregnant by a male who walks away and bears no legal responsibility. The violence is borne solely by the teenage girl or her family.
Incest is one of the reasons for teenagers not consulting parents about pregnancy. The National Center for Child Abuse and Neglect states that there are at least 100,000 cases of such sexual abuse each year.66 Some estimates are as high as 250,000.67 Between twelve and twenty-four percent of incest victims become pregnant.68_ Exposing abuse within one's own family bring both trauma and reprisals. So the insistence on laws requiring parental consent is a form of violence against young women.
A proposal that has some influence with those who seek nonviolent solutions is the "consistent life ethic," linking opposition to abortion, the death penalty, and war.69 At first glance this seems a logical unity against violence. It is, however, not consistent in respecting the lives of women faced with a dangerous pregnancy. Like other absolute rules, there is no recognition of a conflict of life with life. Therefore, embryonic life is given priority over the life of the existing woman. Moreover, this idea, which originated with a member of the Catholic hierarchy, Cardinal Bernadin, treats women who have abortions differently from those who participate in war or in the death penalty.70 Women who have abortions are automatically excommunicated; judges, juries, and executioners who inflict the death penalty, and CIA agents or military personnel who kill again and again are not excommunicated or held up to scorn.71 Thus, the "consistent life ethic" is chiefly directed against pregnant women, and is a form of covert violence.
The complexities of the abortion controversy have kept many religious groups and conscientious individuals from condemning abortion.72 This is true even in churches with dogmatic positions against abortion. One peace-minded group that has historically opposed killing is the Society of Friends (Quakers).73 The General Committee of the Friends Committee on National Legislation in 1975 recognized the dilemma in the abortion controversy in adopting the following statement:
Members of the Religious Society of Friends (Quakers) have a long tradition and witness in opposition to killing of human beings, whether in war or capital punishment or personal violence. On the basis of this tradition, some Friends believe that abortion is always wrong.
Friends also have a tradition of respect for the individual and a belief that all persons should be free to follow their own consciences and the leading of the Spirit. On this basis, some Friends believe that the problem of whether or not to have an abortion, at least in the early months of pregnancy, is one primarily of the pregnant woman herself, and that it is an unwarranted denial of her moral freedom to forbid her to do so.
We do not advocate abortion. We recognize there are those who regard abortion as immoral while others do not. Since these disagreements exist in the country in general as well as within the Society Of Friends, neither view should be imposed by law upon those who hold the other.
Recognizing that differences among Friends exist, nevertheless we find general unity in opposing the effort . . . to say that abortion shall be illegal.74
On the other hand, some religious groups, notably the Catholic Church, have sought and received public funds for their extensive system of hospitals.75 So long as abortion is legal, physicians in those hospitals ought not to deny a woman an abortion. Yet here conscience also should prevail. No physician conscientiously opposed to performing an abortion should be forced to do so. By the same token, women whose conscience tells them to have an abortion should not be forbidden by church or state.
Episcopal Bishop George Leslie Cadigan stated the case for conscience:
It is at once the glory and the burden of each of us that we are called upon to make such difficult personal decisions according to our conscience. When we deny that liberty to any one of our number, we give away a part of our own birthright. When, more specifically, we condemn a woman for making an independent judgment according to her own conscience, relating to her reproductive life, we denigrate her personhood.
The "rightness" or "wrongness" of abortion as the solution of a problem pregnancy is not the critical issue here. The issue is the larger ethical one: can any one of us stand in the role of judge for the personal decisions of others? What robes shall we wear? Greater than the debatable immorality of terminating an undesired pregnancy is the immorality of refusing a woman access to medical help when she has determined that she needs it."76
A study by a Canadian psychiatrist, Dr. Paul K. B. Dagg, in the May 1991 American Journal of Psychiatry provides objective confirmation of the consequences if abortion is denied.77 Children born after their mothers were denied abortions suffer profound social and psychological problems well into adulthood, and women who are denied abortions experience similar problems.78 Dr. Dagg reviewed much of the literature available in English, including studies conducted overseas. He indicated in general terms that open abortion (chosen freely by women) is received as a positive experience by most women. He stated, "Longer term studies, over months and years show . . . the majority of women express positive reactions to the abortion, and only a small minority express any degree of regrets."79 His study also found that "legal abortion of an unwanted pregnancy in the first trimester does not pose a psychological hazard for women"80 But when abortion is denied, he reported, among children of unwanted pregnancy "a more insecure childhood, more psychiatric care, more childhood delinquency" and other problems.81
Before outlining specific public policy proposals it is necessary to ask the question I asked students in my biomedical ethics classes: "If there were no unwanted pregnancies, would there be a significant abortion problem?" They generally concluded that the real problem is unwanted pregnancies. However, the anti-abortion movement will not deal with unwanted pregnancies by advocating sex education in the public schools or contraceptive birth control or economic measures to minimize abortions for working mothers or those with low income. They simply want to pass laws against abortion.
If the United States had declared yellow fever to be illegal and had ignored the mosquitoes that were causing it, the United States would have made the same mistake as the "right-to-lifers": neglecting the cause and concentrating on the result. In short, the anti-abortion movement concentrates on the result instead of the cause and would result in punishing women and physicians instead of dealing with the problem.
Public policy in the United States should include the following:
There should be mandatory sex education in the public schools, taught by competent and specially-trained teachers so that pregnancy from reproductive ignorance may be avoided or minimized.
The United States government should encourage and if necessary subsidize the development of safe and effective contraceptives so as to support the prevention of unwanted pregnancies. This should include the availability of effective contraceptives utilized in other countries, such as RU-486.82
Since women whose family income was less than $11,000 were almost four times as likely to have an abortion as women with family incomes of more than $25,000,83 there should be a guaranteed health care program, including free contraceptives.
There should be no legislation criminalizing or restricting abortion before the third trimester or the viability of the fetus. Thereafter states should be able to regulate abortions except when the life or health of the woman is threatened or the fetus is diagnosed as having a serious disease or lack of an organ or brain that threatens its future.84
If churches or states are insistent that women with deformed or retarded fetuses should not have an abortion, they should provide institutions for the care of deformed or retarded children whose parents cannot or will not provide for them.
Conscience as an integral part of religious liberty should be protected for health care workers who do not want to participate in providing abortion or contraceptives. Likewise, the consciences of women who seek or have an abortion should be respected. This means that physicians, clinics, and women visiting them should be free from intimidation and harassment by groups like Operation Rescue. Likewise, such anti-abortion groups should have the right of peaceful picketing on public property so long as unrestrained access to clinics by those who want to use them is permitted.
Finally, public policy must conform to constitutional guarantees of separation of church and state. Theological definitions of "human being" and "personhood" or religious rules about sex, the status of women, or reproduction ought not to be written into law unless scientifically validated and required for the health or safety of the state or its citizens.
Public policy in the United States should not be guided by theological claims that may well be inconsistent with scientific facts and medical research. The Constitution of the United States is a secular document which gives no authority to government to legislate theological assertions or to prefer the theological doctrines of one or several religious groups over others. A large number of religious groups in the United States do not accept the current Roman Catholic dogma that "at the moment of conception" a fetus is a person or human being.
In fact, the Fourteenth Amendment to the Constitution accepts the physical evidence of birth in its statement, "All persons born or naturalized in the United States . . . are citizens of the United States."85 The exact time and date of conception are at least speculative. Public policy and law cannot be based on an event that may or may not eventuate in childbirth.
1Pastoral Letters of the United States Catholic Bishops (Hugh J. Nolan ed., 1983).
2 See 1993 Catholic Almanac 295 (1993).
3See Dorland's Illustrated Medical Dictionary 369 (27th ed. 1988).
4Henri Leridon, Human Fertility, 79-81 (1977).
5Laboratory tests are available to detect pregnancy "as early as 7 to 9 days after ovulation, very soon after implantation occurs." Robert A. Hatcher, M.D. et al., Contraceptive Technology 1990-1992, at 433 (1992).
6Charles Gardner, Is an Embryo a Person?, Nation, Nov. 13, 1989, at 557.
11See Darrell Holland, Abortion Foes Hold Vigil As Rights Groups Hail Orders Clinton Signed, Plain Dealer, Jan. 23, 1993, at 10A.
12Amicus Curiae Brief of 167 Distinguished Scientists and Physicians, Including 11 Nobel Laureates, at 10-12, William Wester v. Reproductive Health Services, 492 U.S. 490 (1989) (No. 88-605)[hereinafter Amicus Brief].
14Amicus Brief, supra note 12, at 14.
15Michael V.L. Bennett, Personhood from a Neuroscientific Perspective, in Abortion Rights and Fetal Personhood, 77 (Edd Doerr & James W. Proscott eds., 1990).
16Abortion Factbook, Readings, Trends, and State and Local Data to 1988 65 (S.K. Henshaw & J. Van Vort eds., 1992).
17Amicus Brief, supra note 12, at 12-13.
18Dr. Henry Morgentaler, Abortion and Contraception 23 (1982).
19Id. (quoting Porrier et al., Embryologie Humaine (1973).
21U.S. Const. Amend. I.
22Bennett, supra note 15, at xviii-xix.
23Ruth Marcus, Administration Renews Call For Abortion Ruling, Wash. Post, April 7, 1992, at A22.
24See 43 ACTA Apostolicae Sedis 857 (1951); see Loraine Boettner, Roman Catholocism 158 (1962); see Pius XII, Moral Questions Affecting Married Life 26 (1951).
25Kenneth L. Woodward & Rachel Mark, What Mary Means Now, Newsweek, Jan. 1, 1979, at 52.
26Webster's Seventh New collegiate Dictionary 436 (1970).
27Aubrey Milunsky & Leonard H. Glantz, Abortion Legislation: Implications for Medicine, 248 JAMA, 833-834 (1982).
28Restatement (Second) of Torts 314 (1965).
29Id. At 324.
31John F. Dedek, Human Life 43 (1972).
32Kevin Doran, What Is a Person? The Concept and the Implications for Ethics 144-52 (1989).
33Quoted in Kansas City Star.
34See, e.g., Karl Zinsmeister, Let a Dozen Flowers Bloom, Heritage Foundation Policy Rev. 30 (Fall 1989).
35See, e.g., Ford Fessenden, Diseases Adding To Death Rate, Newsday, Dec. 11, 1992, at 39.
36Ed Mendel & Steve La Rue, State raises water-delivery estimate to 55% but environmental restrictions will bar return to pre-drought levels now or ever, officials say, San Diego Union Trib., Feb. 16, 1993, at A3.
37Elias Salameh, founder and former director of University of Jordan's Water Research and Study Center, in Rains Wash Away Some of Mideast's Conservation Urgency, Wash. Post, May 14, 1992, at A16.
38U.S. Const. Amend. XIII.
39See, e.g., D'Arcy Jenish, The Wrate of Rome, Maclean's Feb. 15, 1993, at 50.
40Dred Scott v. Sandford, 60 U.S. 393 (1856).
41See Stephen Chapman, Abortion, Slavery and the Boundaries of the Human Race, Chi. Trib., July 29, 1993, at 19.
42James Tunstead Burtchaell, Rachel Weeping: The Case Against Abortion 239 (1984), and Connie Paige, The Right to Life 47 (1983).
4360 U.S. at 422.
44Id. At 423.
45George Bush's Gender Gap, N.Y. Times, Aug. 19, 1988, at A26.
46Republican Platform Plus Fetus Before Mother, N.Y. Times, Sept. 27, 1988, at A34.
50U.S. Const. Amend. XIX.
51Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972).
52The Great Encyclical Letters of Pope Leo XIII 235 (1900); The Papal Encyclicals 1958-1981 318 (1981).
53Pope John Paul II, Laborem Exercens, Sept. 14, 1981, at para. 91.
54See, e.g., Republican Platform Puts Fetus Before Mother, N.Y. Times, Sept. 27, 1988, at A34.
55See, e.g., L.A. Kauffman, Sexual Harassment: How Political is the Personal?, Nation, Mar. 26, 1988.
56See Renita Weems, My Other Me, Essence, Oct. 1993, at 69.
57Hatcher, Stewart, et al., Contraceptive Technology 1990-1992 136 (1992).
58Henshaw & VanVont, supra note 16, at 78.
59Id.; see also, J. Trussell et al., Contraceptive Failures in the U.S.: An Update, Stud, in Fam. Plan. 21 (1) (1990).
60Many states, such as Georgia, Mississippi and Missouri, fund abortions only if life is endangered.
61Sheila Rule, In Search Of Parents For The 50,000 'Other' Children, N.Y. Times, July 24, 1984, at B1.
64Pennsylvania Senate Bill, enacted as Act 64 on November 17, 1984, makes no exception for fetal deformity. Who Decides? A State-By-State Review of Abortion Rights, The Naral Foundation 134 (1991). Thirty-five states do not permit public funding for abortions for fetal deformity. Id. At 184.
65Our Daughter's Decisions, The Alan Guttmacher Institute 22 (1992); Parental Notice Laws-Their Catastrophic Impact on Teenagers' Right to Abortion, ACLU Reproductive Freedom Project 5-6 (1986); Teenagers, Abortion, and Government Intrusion Laws. Planned Parenthood Education of America, Inc. 2 (1992).
66Ellen Weber, Incest-Sexual Abuse begins At Home, Ms., Apr. 1977, at 64-65.
68S. Kirson Weinberg, Incest, in Problems of Sex Behavior 178-79 (Edward Sagarin & Dona E.J. MacNamara eds. 1968).
69See, e.g., Kurt Chandler, Abortion Talks Are Calm Eye of the Storm; Some Activists Looking For Common Ground, Star Trib., Aug. 2, 1993, at 1B.
70See Kenneth A. Briggs, Bishops' Debate, N.Y. Times, Oct. 26, 1984, at A24.
71Andrew J. Cuschieri, O.F.M., Introductory Readings in Canon Law 251 (1988).
72See Mark Weston, Where The World's Major Religions Disagree, Wash. Post. Jan. 23, 1990, at Z12.
73Paul C. French, We Won't Murder 43-45 (1988).
74Friends Committee on National Legislation. Statement to Congressional Committees in Opposition to Constitutional Amendment Preventing Abortion.
75See Gary Born, Church and State and the Family Life Act; U.S. Has History of Supporting Churches' Work, Manhattan Lawyer, May 3-9, 1988, at 32; Bradfield v. Roberts, 20 S. Ct. 121 (1899).
76See, e.g., John M. Swomley, Abortion and the Law, Church & State Vol. 29, No. 10 (Nov. 1976).
77Paul K.B. Dagg, The Psychological Sequelae of Therapeutic Abortion-Denied and Completed, 148 Am. J. Psychiatry 578 (1991).
78Id. At 583.
79Id. At 583.
80Id. At 579.
81Id. At 583.
82See, e.g., Kathleen Day, French Maker of Abortion Pill Shows Reluctance to Enter the U.S. Market, Wash. Post, Jan. 23, 1993, at A9.
83Henshaw & VanVont, supra note 16, at 75.
84When I testified before a Kansas Senate Committee in March, 1992, a young Catholic woman testified following my statement. Between sobs she said she had already given birth to two children and never dreamed she would seek an abortion. When the fetus she was carrying in her third trimester was diagnosed as having only about one-fourth of a heart and would die a painful death, she got no support from her priest and could not get a late abortion in Virginia. When she arrived in Wichita to get a late abortion, fanatical Operation Rescue demonstrators surrounded the bus in which she and others approached the clinic. Demonstrators shouting "Murderer" and "Baby killer" imprisoned her on that bus for 48 hours.
85U.S. Const. Amend. XIV