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Reverend LOVETT. That statement includes a full description of the process through which the adopted statement was reached.

In our free church tradition, it is important to recognize the amount of grassroot participation in formulating a statement which, although it represents the views fully of the decisionmaking body involved and in this case our Eighth General Synod held in 1971, the statement is nevertheless influenced by the recorded responses of 2,804 persons from many different States.

And in the document there is greater detail as to how we come to these opinions.

The statement itself in 1971 prior to the Supreme Court decision called for the repeal of restrictions on physician-performed abortions.

This would take abortions out of the realm of penal law and make voluntary and medically safe abortions legally available to all women. Simultaneously we ask that adequate protection be given to both conscientious objectors against abortion, including physicians, nurses, and prospective mothers.

The central part of the position of this denomination is for the repeal of all legal prohibitions on physician-performed abortions. Both of the proposed amendments, 119 and 130, would in effect nullify our beliefs. It would make it illegal for our members to practice freedom of conscience, which emerges out of the first amendment.

That is basically the route that we follow in terms of providing for our concerns for citizen's conscience and responsibility and freedom.

I would hope that this record could be added to your volumi

Senator BAYH. Yes, without objection the full statement by Dr. Moss and Dr. Spragg will be placed in the record along with a copy of Social Action, "Let's look at Abortion" which is referred to in their statement.

We extend our appreciation to Dr. Moss and to Dr. Spragg and to Reverend Lovett and to Mr. Dudley and appreciate your patience in staying with us at this late hour. Glad to have your contribution for the record.

We will recess now pending the call of the Chair and the compiling of other witnesses who desire to be heard.

[Whereupon, at 5:15 p.m., the subcommittee recessed subject to the call of the Chair.]

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ABORTION-PART 1

WEDNESDAY, APRIL 10, 1974

U.S. SENATE,
SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to recess, at 10:15 a.m., in room 1202, Dirksen Senate Office Building, Senator Birch Bayh (chairman of the subcommittee) presiding.

Present: Senators Bayh and Cook.

Also present: J. William Heckman, Jr., chief counsel; and Abby Brezina, chief clerk.

Senator Bayu. We will reconvene our hearing.

The first witness today is our distinguished colleague from Oklahoma, Senator Dewey Bartlett. Senator, we appreciate your taking the time to be with us this morning.

STATEMENT OF HON. DEWEY F. BARTLETT, U.S. SENATOR FROM

THE STATE OF OKLAHOMA

Senator BARTLETT. Thank you, Mr. Chairman, Senator Cook. Thank you both very much.

Mr. Chairman, may I proceed?
Senator BAYH. Please.

Senator BARTLETT. Mr. Chairman, I appreciate very much the opportunity of appearing before this committee to testify in behalf of Senate Joint Resolution 119, a proposed constitutional amendment to prohibit abortion on demand offered by the distinguished Senator from New York, Senator Buckley. I have joined Senator Buckley as a cosponsor of this proposed amendment.

The importance of the abortion question is profound. Few persons are without an opinion on the moral, social, and legal implications of abortion. Even the results of public opinion polls vary on this issue. Additionally, and adding confusion to the entire matter are the emotions which are intense on both sides. Intelligent informed people have come to different conclusions on abortion.

But the issue of abortion is so important that we cannot afford the luxury of hiding the problem. The importance of the issue can best be demonstrated by the gruesome fact that as a result of the Supreme Court's decision in Rowe v. Wade, permitting abortion on demand, there are thousands of fetuses whose lives have already been snuffed out. Fetuses who otherwise, although infants, would now be members of our society.

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To discuss the issue it is important that we start with the ascertainable facts.

Though Chief Justice Burger says, “plainly the Court today rejected any claim that the Constitution requires abortion on demand," the first and most important point to be observed is that the decission does pave the way for abortion on demand for the first 6 months of pregnancy or until viability. In the first 3 months, or first trimester, according to the Court, the abortion question is totally up to the woman and her attending physician. In the second trimester, the State may regulate, but not proscribe, the abortion procedure—and so for the second trimester, the decision of the pregnant woman and her physician is compelling. In the final trimester, the State suddenly takes on a compelling interest in the matter, and may proscribe except "where it is necessary for the preservation of the life or health of the mother." But the Court then accepts a definition of health which includes "psychological as well as physical well-being"; that is, "all factors—physical, emotional, psychological, familial, and the woman's age, relevant to the well-being of the mother.

In other words, Mr. Chairman, a woman now has a constitutional right to pursue the abortion of her unborn child if giving birth would be socially inconvenient, or would make her emotionally upset. The right to life is no longer a right, but is now dependent on the comfort and well-being of the mother. A human being is reduced to an expendable social convenience.

How did the Court arrive at such a position? It did so by a gross distortion of history, of the Constitution, and of the nature of man. Basically, the Court based the decision on its conclusions that (a) abortion is historically neither wholly uncommon nor unlawful; (b) the right of privacy includes the decision of a woman to terminate her pregnancy as she and her doctor desire; and (c) the fetus, regardless of potential human status, is not a legal person and thus is not entitled to human rights.

Now it is true that abortion has been practiced, legally and illegally, throughout history. But slavery has been practiced throughout history, too. Should we therefore repeal the laws which proscribe slavery?

Whatever approach has existed, abortion has been introduced without, rather than within, the law. The Court was content merely to list periods in history where abortion was sanctioned, and thus saw only what it wanted to see. Justice Blackmun, for example, was impressed with the fact that "Roman law afforded little protection to the unborn."

Mr. Chairman, our history is the story of a progression, though imperfect and unsteady, from barbarism to civilized society. Though the Romans were more civilized than other ancient cultures, they were barbaric in that they did not understand the sanctity and dignity of human life. And thus Seneca, the Roman philosopher, argued :

Mad dogs we knock on the head; the fierce and savage ox we slay; sickly sheep we put to the knife to keep them from infecting the flock; unnatural progeny we destroy; we drown even children who at birth are weakly and abnormal.

This is the voice of barbarism, and in a society which accepted slavery, crucifixion, and the killing of newborn children, we should not expect the killing of a fetus to seem abnormal.

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The Judeo-Christian philosophy, with its emphasis on human rights and individual freedom, emphasized the basic dignity and sanctity of human life. The Didache, an anonymous Christian writing of the early second century, includes under the second commandment of the teaching the precept, “Thou Shalt Not Procure Abortion.” And this precept has continued as a basic concept of our Western civilization for almost 200 years. The advancement of our culture, measured by the increasing recognition of the rights of the unborn, is evidenced historically in the increasing protection by law of unborn life.

Mr. Chairman, the Supreme Court decision is applauded by some as progressive, but in reality it is regressive, a throwback to the primitive and barbarian past when human life was without innate value. The Court's interpretation of history is one-sided. And this is documented in a comprehensive brief filed by the attorneys in the Byrn versus New York City Health and Hospitals Corporation case which was on appeal to the Court at the time the Court handed down its decision on abortion.

Perhaps an even greater misinterpretation, Mr. Chairman, is found in the Court's discovery of a constitutional right to privacy which includes the right of a woman to destroy her unborn child. Not surprisingly, there was much disagreement among the members of the Court as to where this right of privacy is situated—some found it in the ninth amendment; others found it in the first, fourth, or fifth, even the entire Bill of Rights. However, the majority felt, to use its own language, that this right is contained in the 14th amendment's concept of personal liberty and limited government.

In order to find this right in the 14th amendment, the court has had to totally ignore the expressed intent of the framers. Justice Rehnquist in his dissenting opinion pointed out that at the time of the adoption of the 14th amendment there were 36 laws enacted by State or territorial legislatures limiting abortion, and he declared:

The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the states the power to legislate with respect to this matter.

Obviously, this also applied to the amendments adopted prior to the 14th amendment.

The intent of the framers, as pointed out in the Byrn brief, was clearly to "protect every live human being regardless of age, stage, condition of wantedness.” Congressman John Bigham, who sponsored the 14th amendment in the House, stated that it was universal" and applied to “any human being," and this Senate counterpart noted that the amendment covers “the humblest, the poorest, the most despised of the race.” Even a cursory glance at history shows that the opinion and mood of the age were unquestionably opposed to abortion. Are we to assume, Mr. Chairman, that the framers did not mean what they said? In the words of dissenting Justice White:

The Court simply fashions and announces a new constitutional right for pregnant mothers and with scarcely any reason or authority for its action invests that right with sufficient substance to override most existing state abortion statutes."

Finally, after misinterpreting history and the Constitution, the Supreme Court has thrown both established scientific fact and commonsense out the window by declaring that the fetus is not a legal person and thus not entitled to human rights.

The Court is unequivocal on this matter.

The word “person", as used in the Fourteenth Amendment, does not include the unborn.

And they are aware that the validity of their case hinges on this point.

If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life is then guaranteed specifically by the 14th amendment.

Most people agree with Webster that the preferred meaning of “person" is "human being" and that the preferred meaning of "human being” in “person."

The fetus is obviously human—the joining of the female ovum and the male sperm. The fetus is a being because the fetus exists and

a has life-therefore the fetus is a human being.

The sole purpose of performing an abortion is to deny life and existence to the human fetus for if there is not life in the human fetus, the human fetus aborts naturally.

One would expect the Supreme Court to provide a thorough and cogent analysis. What is evidenced in the decision, however, is a jumble of illogic and confusion. The basic question to be resolved, before one can even begin to consider the rights of unborn children, is the issue of when human life begins.

But the Court chose to totally disregard this matter by saying: When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the an. swer. ... We need not resolve the difficult question of when life begins.

Now, as a matter of fact, there is considerable agreement among scientists, biologists, philosophers, and theologians as to when human life begins. It begins at the moment of conception : when the ovum is fertilized by the sperm-forming that unique genetic organism called the zygote—fetus—which 7 days later implants itself in the womb.

The Supreme Court calls a fetus a "potential human being." Dr. Denis Cavanaugh, chairman of the Department of Gynecology and Obstetrics at St. Louis University School of Medicine, more appropriate says that a fetus, rather than being a potential human being, is a “human being with potential."

But let us assume, for the sake of argument, the Court's uncertainty about when life begins. Now when there is doubt about the possible effects of an action, commonsense dictates that one take the safer course. Thus, if there is a possibility that abortion is the taking of human life, one would naturally forbid abortion until the matter can be decided conclusively one way or the other. The Supreme Court, however, does not concern itself with the issue of whether or not abortion is murder. It closes its eyes to this all-important issue and, busying itself with sophistry, discusses only the purely legal issue of the definition of person in the 14th amendment.

Yet even this slender reed falls before the historical evidence which shows that the framers, in harmony with the common law and moral

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