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Responses on the Ethics of Abortion

#1) “Guilty? Yes. No matter what the motive, love of ease, or a desire to save from suffering the unborn innocent, the woman is awfully guilty who commits the deed. It will burden her conscience in life, it will burden her soul in death; But oh, thrice guilty is he who drove her to the desperation which impelled her to the crime!” Susan B. Anthony, 1 The Revolution 4, 4 (July 8, 1869).

#2) “[T]here were certain crimes where requests for leniency merely made me angry. Such crimes were, for instance, rape, or the circulation of indecent literature, or anything connected with what would now be called the “white slave” traffic, or wife murder, or gross cruelty to women and children, or seduction and abandonment, or the action of some man in getting a girl whom he had seduced to commit abortion. I am speaking in each instance of cases that actually came before me, either while I was Governor or while I was President. In an astonishing number of these cases men of high standing signed petitions or wrote letters asking me to show leniency to the criminal. In two or three of the cases, one where some young roughs had committed rape on a helpless immigrant girl, and another in which a physician of wealth and high standing had seduced a girl and then induced her to commit abortion – I rather lost my temper, and wrote to the individuals who had asked for the pardon, saying that I extremely regretted that it was not in my power to increase the sentence.

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I then let the facts be made public, for I thought that my petitioners deserved public censure. Whether they received this public censure or not I did not know, but that my action made them very angry I do know, and their anger gave me real satisfaction. The list of these petitioners was a fairly long one, and included two United States Senators, a Governor of a State, two judges, an editor, and some eminent lawyers and businessmen.” THEODORE ROOSEVELT, AN AUTOBIOGRAPHY, 305 (1913) (emphasis added).

#3) “[I]t seems to me as clear as daylight that abortion would be a crime.” M. GANDHI, ALL MEN ARE BROTHERS: THE LIFE AND THOUGHTS OF MAHATMA GANDHI AS TOLD IN HIS OWN WORDS 165 (1958).

#4) “It is to be deeply regretted that the American people have been denied the deliberative role in shaping public policy on this issue that has been played by the citizens of other developed democracies. The American people are capable of rising above partisanship on a matter of this gravity. Their voice can and must be heard, through the normal procedures of democracy. For like the practice of slavery, and like Jim Crow laws of the not-so-distant past, the abortion issue raises the most fundamental questions of justice – questions that cannot be avoided, and that cannot be resolved by judicial fiat.” Eunice Kennedy Shriver (founder of the Special Olympics) and Sargent Shriver (1972 Democratic Vice-Presidential Nominee), et al., A New American Compact: Caring About Women, Caring for the Unborn, New York Times, July 14, 1992 at A23.

#5) “Twenty-five years and nearly 30 million abortions after the Supreme Court’s landmark Roe v. Wade decision, the American public still largely supports legalized abortion but says it should be harder to get and less readily chosen, the latest New York Times/CBS News Poll shows. At base, the country remains irreconcilably riven over what many consider the most divisive American issue since slavery, with half the population considering abortion murder, the poll found . . . . Public support for legal abortion plummets from 61 percent if it is performed in the first three months of a woman’s pregnancy to only 15 percent in the second three months. . . . Nearly 80 percent of respondents supported both parental consent and waiting periods . . . . Sixty-one percent said they thought abortions should be permitted during the first three months of pregnancy, up from 50 percent in 1982; but that support dwindled to 15 percent in the second three months and just 7 percent in the third.” Goldberg & Elder, Public Still Backs Abortion But Wants Limits Poll Says, N.Y. Times, January 16, 1998, at A1 (emphasis added). In a “Times Poll, 65% of respondents said abortions in the second trimester should not be legal. Female respondents feel more strongly about the issue: 72% believe second-trimester abortions should be illegal, compared with 58% of men.” Rubin, Americans Narrowing Support for Abortion, L.A. Times, June 18, 2000, at 1 (emphasis added). See also Saad, “Americans Walk the Middle Road on Abortion,” The Gallup Poll Monthly (April 2000) (The poll question was: “Do you think abortion should generally be legal or generally illegal during the second three months of pregnancy?” 65% said illegal in July of 1996, and 69% said illegal in March of 2000).

#6) In 1997, approximately 45% of all abortions in the United States occurred after eight weeks’ gestation, and 12% after the first trimester. Alan Guttmacher Institute, Facts in Brief; Induced Abortion (2001). 71% of women surveyed said that one reason for their having an abortion after sixteen weeks was merely not recognizing the pregnancy sooner, or misjudging its gestation. Torres & Forrest, Why Do Women Have Abortions? 20 Family Planning Perspectives 169, 174 (1988). Only about 1% of abortions are related to rape or incest.

Id at 170. The legalization of abortion led to an approximately ten-fold increase in the total number of abortions. See Syska, Hilgers & O’Hare, An Objective Model for Estimating Criminal Abortions and Its Implications for Public Policy, in New Perspectives on Human Abortion 178 (Hilgers, Horan & Mall eds. 1981). For a review of the dispute over pre-legalization statistics, see Daniel Callahan, Abortion: Law, Choice and Morality 132 (1970); Stephen Krason, Abortion: Politics, Morality, and the Constitution 301(1984).

#7) “At two months of age, the human being is less than one thumb’s length from the head to the rump. He would fit at ease in a nutshell, but everything is there: hands, feet, head, organs, brain, all are in place. His heart has been beating for a month already . . . . With a good magnifier the fingerprints could be detected.” The Human Life Bill, S. 158: Hearings Before the Subcommittee on Separation of Powers of the Committee on the Judiciary, United States Senate, 97th Cong., 1st Sess. 7-10 (1981) (testimony of Dr. Jerome Lejeune, Professor of Fundamental Genetics, University Rene Descartes). “Lively activities [are] observed by ultrasound in the tenth week when babies rarely pause for more than five minutes.” Geraldine Lux Flanagan, Beginning Life 62 (1996).

At eight weeks, “the danger of a miscarriage . . . diminishes sharply.” Lennart Nilsson, A Child is Born 91 (1990). Integrated brain functioning has been verified about seventy days after conception. Peter Steinfels, Scholar Proposes ‘Brain Birth’ Law, N. Y. Times, Nov., 8, 1990 at A28. Nine weeks after conception, the baby is well enough formed to bend her fingers around an object in the palm of her hand; in response to a touch on the sole of her foot, she will curl her toes or bend her hips and knees to move away from the touching object. Valman & Pearson, What the Fetus Feels, British Medical Journal, (January 26, 1980). “Until the 9th week there is no apparent difference in the external genitals of boys and girls. . . . [but] in boys in the 9th week . . . the testis releases a burst of male hormones . . . and the phallus stays.” Christopher Vaughan, How Life Begins: the Science of Life in the Womb 74 (1996). By nine weeks, a developing fetus can hiccup and react to loud noises. Hopson, Fetal Psychology, 31 Psychology Today 44 (October 1998).

#8) “[B]efore ‘viability . . . the woman has a right to choose to terminate her pregnancy.'” Stenberg v. Carhart, 530 U.S. 914, 921 (2000)(citations omitted). “Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Roe v. Wade, 410 U.S. 113, 160 (1973).

#9) “[T]he lines between lawful and unlawful abortion will be marked by the fact of having sensation and being alive.” ARISTOTLE, POLITICS bk. 7, ch. 6 at 294 (T.A. Sinclair trans. 1962) (325 B.C. or thereabouts). “In the case of male children the first movement usually occurs on the right-hand side of the womb and about the fortieth day, but if the child is a female then on the left-hand side and about the ninetieth day.

However, we must by no means assume this to be an accurate statement of fact, for there are many exceptions, in which the movement is manifested on the right-hand side through a female child becoming, and on the left-hand side through the infant be a male. And in short, these and all suchlike phenomena are usually subject to differences that may be summed up as differences of degree.”

ARISTOTLE, HISTORY OF ANIMALS bk. 7, part 3. “If one strikes a pregnant woman or gives her poison in order to procure an abortion, if the fetus is already formed or quickened, especially if it is quickened, he commits homicide.” Henry Bracton, 2 On The Laws and Customs of England, 341 (S.E. Thorne trans., George E. Woodbine ed. 1968) (1250 A.D. or thereabouts). “The third party killing of a fetus with malice aforethought is murder . . . as long as the state can show that the fetus has progressed beyond the embryonic stage of seven to eight weeks”. People v. Davis, 7 Cal. 4th 797, 814, 30 Cal. Rptr. 2d 50, 61, 872 P.2d 591, 602 (1994)).

#10) “The [Roe v. Wade] opinion’s author, Justice Harry A. Blackmun, said in one internal court memo that he was drawing ‘arbitrary’ lines about the times during pregnancy when a woman could legally receive an abortion. In another memo, Justice Potter Stewart, who joined the Blackmun opinion, said the determination in the opinion about these lines was ‘legislative.'” Bob Woodward, The Abortion Papers, Washington Post, January 22, 1989, at D1 (emphasis added).

#11) “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” U.S. Constitution, Art. 1, Sec. 1.

#12) “A bill in Congress that would ban most restrictions on abortion is virtually dead . . . . Proponents have argued that the act would codify Roe vs. Wade . . . .” Freedom of Choice Act Stalls, Chicago Sun-Times, March 21, 1994, at 18.

#13) “Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall ‘deprive any person of life, liberty, or property, without due process of law.'” Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992).

#14) “I have not yet adequately expressed the more than anxiety that I feel at the ever-increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable.” Baldwin v. State of Missouri, 281 U.S. 586, 595 (1930) (Holmes, J., dissenting).

#15) “We are to construe this phrase in the fourteenth amendment by the usus loquendi of the constitution itself. The same words are contained in the fifth amendment. . . . The conclusion is . . . irresistible, that when the same phrase was employed in the fourteenth amendment to restrain the action of the states, it was used in the same sense and with no greater extent . . .” Hurtado v. California, 110 U.S. 516, 534-535 (1884). This has always been common ground. “‘Due process of law,’ within the meaning of the national constitution, does not import one thing with reference to the powers of the states and another with reference to the powers of the general government.” Id. at 541 (Harlan, J., dissenting).

#16) “The words, ‘due process of law,’ were undoubtedly intended to convey the same meaning as the words, ‘by the law of the land,’ in Magna Charta. Lord Coke, in his commentary on those words, (2 Inst. 50,) says they mean the due process of law.” Murray v. Hoboken Land, 59 U.S. (18 How.) 272, 276 (1855) (emphasis added). “Magna Carta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience . . . are unguarded in the British Constitution.” James Madison, Cong. Register, I, 423-37 (1789)(speech introducing the Bill of Rights).

#17) “It was endless to enumerate all the affirmative acts of parliament wherein justice is directed to be done according to the law of the land: and what that law is, every subject knows; or may know if he pleases: for it depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by the authority of parliament.” WILLIAM BLACKSTONE, 1 commentary ON THE LAWS OF ENGLAND: A FACSIMILE OF THE FIRST EDITION OF 1765-1769, 137-138 (1979) (emphasis added). “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . .” U.S. Constitution, Art. VI.

#18) “The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases – that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely – has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.” Ferguson v. Skrupa, 372 U.S. 726, 730 (1963). “For me, the only correct meaning of that phrase [dur process] is that our Government must proceed according to the ‘law of the land’-that is, according to written constitutional and statutory provisions as interpreted by court decisions. The Due Process Clause, in both the Fifth and Fourteenth Amendments . . . in effect states that our governments are governments of law and constitutionally bound to act only according to law.” In re Winship, 397 U.S. 358 (1970) (Black, J., dissenting).

#19) “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). “The words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature.” Alexander Hamilton, New York Assembly. Remarks on an Act for Regulating Elections in 4 The Papers of Alexander Hamilton 36 (H. Syrett ed. 1962) (February 6, 1787) (see item #29 below for another Hamilton quote).

#20) “[T]he party complaining here appeared, and had a full and fair hearing, in the court of the first instance, and afterward in the Supreme Court. If this is not due process of law, then the words can have no definite meaning as used in the Constitution.” Davidson v. New Orleans, 96 U.S. 97, 105-106 (1877).

#21) “The constitutions which had been adopted by the several States before the formation of the federal constitution, [followed] the language of the great charter [Magna Charta] more closely [than the fifth amendment does. This is because the]. . . . constitution of the United States, as adopted, contained the provision [in Article III, Section 2], that ‘the trial of all crimes, except in cases of impeachment, shall be by jury.’ When the fifth article of the amendment containing the words [due process of law] now in question was made, the trial by jury in criminal cases had thus already been provided for. By the sixth and seventh articles of amendment, further special provisions were separately made for that [jury] mode of trial in civil and criminal cases. To have followed, as in the state constitutions . . . the words of Magna Charta, and declared [in the fifth amendment] that no person shall be deprived of his life, liberty, or property but by the judgment of his peers or the law of the land, would have been in part superfluous and inappropriate.

To [alternatively] have taken the clause, ‘law of the land,’ without its immediate context, might possibly have given rise to doubts, which would be effectually dispelled by [instead] using those words which the great commentator on Magna Charta [Lord Coke] had declared to be the true meaning of the phrase, ‘law of the land,’ in that instrument, and which were undoubtedly then received as their true meaning. . . . ‘[D]ue process of law’ generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings, yet this is not universally true. There may be, and we have seen that there are cases, under the law of England after Magna Charta, and as it was brought to this country and acted on here, in which process, in its nature final, issues against the body, lands, and goods of certain public debtors without any such trial . . .” Murray v. Hoboken Land, 59 U.S. (18 How.) 272, 276-281 (1855) (emphasis added, citations omitted).

#22) “The same words [due process] are contained in the fifth amendment. That article [furthermore] makes specific and express provision for perpetuating the institution of the grand jury, so far as relates to prosecutions for the more aggravated crimes under the laws of the United States. . . . According to a recognized canon of interpretation, especially applicable to formal and solemn instruments of constitutional law, we are forbidden to assume, without a clear reason to the contrary, that any part of this most important amendment is superfluous. The natural and obvious inference is that, in the sense of the constitution, ‘due process of law’ was not meant or intended to include, ex vi termini, the institution and procedure of a grand jury in any case.” Hurtado v. California, 110 U.S. 516, 534-535 (1884) (emphasis added).

#23) “It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW v. Andrews, 122 S.Ct. 441, 449 (2001)(emphasis added).

#24) “Roe v. Wade, the 1973 Supreme Court decision legalizing abortion, was wrong because it ‘usurped the power of the legislatures,’ Bush said. ‘I felt like it was a case where the court took the place of what the legislatures should do in America,’ he said when asked whether he thought the decision should be overturned. But Bush refused to say how he felt each state should act. Instead, he said that when it comes to legalizing abortion, ‘it should be up to each legislature.'” Boston Globe, January 22, 2000 at A12.

#25) “The Ninth Amendment obviously does not create federally enforceable rights.” Doe v. Bolton, 410 U.S. 179, 210 (1973) (Douglas, J., concurring) (Doe was the companion case to Roe v. Wade). The “law did not violate any provision of the Bill of Rights. . .” Roe v. Wade, 410 U.S. 113, 167 (1973) (Stewart, J., concurring). Justice Stevens would later endorse this view of Justice Stewart (regarding the Griswold case) in Webster v. Reproductive Health Services, 492 U.S. 490, 564 (1989) (Stevens, J., concurring in part and dissenting in part). However, others believe that the Fourteenth Amendment alone is not adequate to justify any right to abortion. “I believe, for example, that there is a right of privacy in the Fourth Amendment . . . the governor would appoint people who would overturn Roe v. Wade.” Al Gore, October 3, 2000 (during the presidential debate).

#26) “Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.” Cong. Globe, App. 1st Sess., 42d Cong., pp. 81, 83-85 (1871) (comments of Representative John Bingham) quoted in Adamson v. California, 332 U.S. 46, 115 (1947) (Black, J., dissenting).

#27) “Repeated references to sources understandable only to a trained physician may obscure matters for persons not trained in medical terminology. Thus it seems necessary at the outset to set forth what may happen during an abortion . . . . As described by Dr. Carhart, the D&E procedure requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina. Dr. Carhart uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the remainder of the body.

The traction between the uterus and vagina is essential to the procedure because attempting to abort a fetus without using that traction is described by Dr. Carhart as ‘pulling the cat’s tail’ or ‘drag[ging] a string across the floor, you’ll just keep dragging it. It’s not until something grabs the other end that you are going to develop traction.’ The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off. Dr. Carhart agreed that ‘[w]hen you pull out a piece of the fetus, let’s say, an arm or a leg and remove that, at the time just prior to removal of the portion of the fetus, . . . the fetus [is] alive.’ Dr. Carhart has observed fetal heartbeat via ultrasound with ‘extensive parts of the fetus removed,’ and testified that mere dismemberment of a limb does not always cause death because he knows of a physician who removed the arm of a fetus only to have the fetus go on to be born ‘as a living child with one arm.’ At the conclusion of a D&E abortion, no intact fetus remains.

In Dr. Carhart’s words, the abortionist is left with ‘a tray full of pieces.’ The other procedure implicated today is called ‘partial-birth abortion’ or the D&X . . . . The fetus’ arms and legs are delivered outside the uterus while the fetus is alive; witnesses to the procedure report seeing the body of the fetus moving outside the woman’s body. At this point, the abortion procedure has the appearance of live birth. As stated by one group of physicians, ‘[a]s the physician manually performs breech extraction of the body of a live fetus, excepting the head, she continues in the apparent role of an obstetrician delivering a child.’ With only the head of the fetus remaining in utero, the abortionist tears open the skull. According to Dr. Martin Haskell, a leading proponent of the procedure, the appropriate instrument to be used at this stage of the abortion is a pair of scissors.

Witnesses report observing the portion of the fetus outside the woman react to the skull penetration. The abortionist then inserts a suction tube and vacuums out the developing brain and other matter found within the skull. The process of making the size of the fetus’ head smaller is given the clinically neutral term ‘reduction procedure.’ Brain death does not occur until after the skull invasion, and, according to Dr. Carhart, the heart of the fetus may continue to beat for minutes after the contents of the skull are vacuumed out. The abortionist next completes the delivery of a dead fetus, intact except for the damage to the head and the missing contents of the skull.” Stenberg v. Carhart, 530 U.S. 914, 957-960 (2000)(Kennedy, J., dissenting)(citations omitted).

#28) “If you don’t know whether a body is alive or dead, you would never bury it. I think this consideration itself should be enough for all of us to insist on protecting the unborn.” Ronald Reagan, Abortion and the Conscience of the Nation, 21 (1983).

#29) “I hold it to be a maxim which ought to be sacred in our form of government, that no man ought to be deprived of any right or privilege which he enjoys under the constitution, but for some offense proved in due course of law.” New York Assembly, Remarks on an Act for Regulating Elections in 4 THE PAPERS OF ALEXANDER HAMILTON 25, 28 (H. Syrett ed. 1962) (January 29, 1787) (emphasis added). Hamilton’s maxim has found a home in the Eighth Amendment. “The substantive limits imposed by the Eighth Amendment on what can be made criminal and punished were discussed in Robinson v. California, 370 U.S. 660 (1962). The Court found unconstitutional a state statute that made the status of being addicted to a narcotic drug a criminal offense.

It held, in effect, that it is ‘cruel and unusual to impose any punishment at all for the mere status of addiction. The cruelty in the abstract of the actual sentence imposed was irrelevant: ‘Even one day in prison would be a cruel and unusual punishment for . . . having a common cold.’ Id., at 667.” Gregg v. Georgia, 428 U.S. 153, 172. There are some significant similarities between Robinson and another, much more horrendous decision: “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.” Dred Scott v. Sandford, 60 U.S. 393, 450 (1856) (emphasis added). The Dred Scott case was the first time the Court ever applied the doctrine of substantive due process, and the property referred to were slaves.

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