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sentiment of their age, intended the 14th amendment to apply to unborn children. I quote from the Byrn brief:
The Framers intended that every live human being, every member of the human race, even the most unwanted, fall within the aegis of the due process and equal protection clauses. History does not support the proposition that the Framers intended to exclude unborn children. Moreover, from a strictly logical standpoint, the argument that the
a unborn child is not a human being or person and is not entitled to human rights is a manifest absurdity. A principal argument of proabortionists is that before birth the fetus is merely a part of the mother's body, like any other organ or appendage. Because it is common practice to remove an organ or appendage when it becomes dangerous to the mother, we are therefore asked to sanction abortion as we would sanction the removal of a gangrenous leg or diseased kidney. The extermination of a living being whose heart beats at 3 weeks, who moves after 6 weeks, and who by 12 weeks is sucking his thumb, swallowing, digesting, and urinating is to the proabortionist no different than an appendectomy. By virtue of its dependence on the mother for survival, then, the fetus is deemed an expendable part of the body.
While a mother may claim that a fetus is a part of her body, it is interesting that the umbilical cord attaching the fetus to the mother is produced by the fetus, and not by the pregnant woman.
But for months and years after birth the child is also dependent on the mother for survival. By the logic of the argument of whether the child is dependent on the mother, we could also exterminate newborn children and, by extension, the elderly and sick who are unable to take care of themselves. It is true that the fetus lives inside of a womb and the child outside but why should this factor be at all relevant ? Scientists and theologians alike agree that birth, the severing of the umbilical cord, is an arbitrary point in the development of the child.
The absurdity of this dependency argument becomes clear as we progress to its logical conclusions. The court assumes that birth is the point at which the child becomes a person. Is he not a person when one-third of the way out, as well as a person when two-thirds of the way out? Is the baby a human being which may be destroyed 1 second before birth begins, and a “person" possessed of inalienable rights 1 second after birth begins?
A guarantee of the conditions of life for a human being during the first 9 months are perhaps more important than those of any succeeding 9 months.
If a human being's life is terminated in the first 9 months, he is absolutely denied all of his inalienable rights and has no second chance to regain them- ever.
Mr. Chairman, the Declaration of Independence states:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are Life-Liberty, and the Pursuit of Happiness.
The Supreme Court is apparently now prepared to say that some men are not created equal, and that the desire, convenience, health, or comfort of some give them the power of life or death over others. This value system, denying the inalienable right to life of an unborn child until some arbitrary state of development, is a shameful regression to the barbarism which ignores human dignity and value.
It is the mentality by which Stalin massacred millions of innocent Russian peasants, and Hitler exterminated millions of innocent Jews. And now, in our time, this doctrine is loosed with full force upon the most innocent of all beings—the defenseless unborn child.
For nearly 200 years, we have declared that all men are created equal but now we have gone to the other extreme under certain conditions, declaring that some human beings have the sacred right to determine whether another human being continues to live. These principles cannot stand together. Whoever holds to one must despise the other. Legal abortion violates the noblest political system the world ever saw. In our greed to eliminate human suffering and inconvenience, let us beware of loosening basic guarantees of life.
What is there to say about a court which cares more for the life of a convicted murderer than the life of an unborn child?
Justice Douglas, in his concurring opinion, said that a woman may be deprived of a "preferred lifestyle" and have forced upon her an "undesired future" because "the vicissitudes of life produce pregnancies which may be unwanted.” Pregnancy is not some mysterious accident over which human beings have no control. I thought they were teaching in our high schools that sexual intercourse between a man and a woman causes pregnancy. He is saying that man is no longer a free and autonomous being, no longer capable of controlling his destiny so as to become a businessman, a doctor, a father, a farmer, a poetthat, stripped of dignity and responsibility, man is now a mere biological organism which floats passively on the tide of events, tossed about by the “vicissitudes of life.” Given this view of humanity, it is inevitable that human beings should be reduced to expendable social utilities and conveniences.
Some will protest that to draw such implications from this Supreme Court decision is imprudent. I ask them to examine the wording of the Court's decision. The Court states that the unborn are not recognized by the law as persons in the whole sense,” and uses as a prerequisite for human status the criterion that one be "capable of meaningful life.”
What does this mean? Quite simply, it means that human life may not have value; that it is subordinate to other considerations. What are such considerations? For instance, that the mother may have to "abandon educational plans; sustain loss of income (and) endure the discomforts of pregnancy."
It is for the discomforts of pregnancy" that the Court is now willing to sacrifice innocent human life. The right to life is no longer an inalienable right, but a matter of chance.
Mr. Chairman, as soon as one questions the value of human life, there is nothing in principle that prevents him from expanding the circumstance under which human beings may be exterminated. It is only a matter of degree to shift from the extermination of the fetus to the extermination of children with birth defects to the extermination of the elderly, the sick, the crippled, and others who are “less than whole persons."
Mr. Chairman, one must always value human life, the right to life is not the gift of a state, a judiciary, or any other organization or individual, it is innate in the nature of man.
Our forefathers in the Declaration of Independence and the Constitution stated in candid and powerful words that the individual is
supreme and above the state, not secondary to it. Now the Supreme Court rather than supporting the supremacy of the individual is stripped of his dignity and value and may be reduced to the level of an animal.
The decision of the Supreme Court is a direct attack on this fundamental human right. It is offensive not only to commonsense and established scientific fact, but to that precious moral tradition which is the product of ages of human endeavor-a moral tradition which has culminated in the American philosophy. It places the rights and liberties of each individual and all human life ahead of the state.
To hold that many of us can solve our problems only by killing others is a blow to human development and justice.
President Lincoln said our ultimate defense is the preservation of the spirit which prizes life as the heritage of all men."
Mr. Chairman, I urge this committee's action to support the Human Life amendment. Nothing less is at stake than the respect for th dignity and sanctity of human life which is the prime characteristic of a free and civilized society such as ours.
Senator BAYH. Thank you very much.
Senator BARTLETT. Mr. Chairman, I thank you for your patience in hearing my full statement.
Senator Bayh. Senator Bartlett, we appreciate your concern. Could I just ask a question or two?
We are going to have a number of expert witnesses in the medical and scientific and legal area try to describe and discuss just what are the dimensions of this problem. I think it is fair to say your statement was a rather strong and far-reaching statement in this area. One of the problems that we have to nail down, and one on which we will find differing opinions is when life actually begins. As a Senator who has made a commitment in this area, do you have a definition of when life begins ?
Senator BARTLETT. Well, as I said, I think very clearly there is agreement when life begins, and that is at the moment of conception. Senator BAYH. How do you describe conception?
. Senator BARTLETT. When the egg is fertilized by the sperm and im. planted in the uterus, the womb.
Senator Bayh. We are talking about two different times, fertilization and implantation. We will have a number of witnesses who will say that the implantation is not necessary for there to be life. That is why I asked the question. You feel since the egg and the sperm join in one phase, and implantation occurs sometimes a week later, that this is not one simultaneous act. You feel it is after the implantation that life actually starts?
Senator BARTLETT. I learned recently when I was in Oklahoma, of a man who has successfully taken a fertilized egg from a cow in Canada and implanted it for not more than 2 days in a rabbit, and actually in this globule there were several fertilized eggs, and transplanted those to Oklahoma and he plants those in a cow in Oklahoma. And it gives birth to a calf which is the calf of the cow in Canada and the bull in Canada. So, although the fertilized egg can live for a short time, it must be implanted to continue its life. I think life begins certainly with the conception, with the fertilization, but then there is another necessary point of implantation. But, if implantation does not take place, life does not continue. So, perhaps you could say it begins at conception and is reinforced at implantation. Certainly the life began in Canada in the case I gave.
Senator Bayh. Pardon me? Senator BARTLETT. The life began in Canada in the example I gave of the calf.
Senator BAYH. Well, either life begins or it does not begin, and to follow on with that calf, it could not be born, nor would it be viable outside of either the rabbit, the second mother, or the first mother unless it went through the normal period of gestation, and it would not be viable for some time.
Senator BARTLETT. I will say, I will amend slightly what I said. I will say life begins with conception, fertilization.
Senator Bayh. That is, when the egg and the sperm get together? Senator BARTLETT. Right. Senator Bays. We have had a strong amount of testimony to that effect. Then you would suggest that anything that prohibits birth after that point would really be an aborting effort ?
Senator BARTLETT. Either naturally or unnaturally. I would stress. Mr. Chairman, that the Supreme Court would not address itself to the question of when life begins. And they would not face up to that.
Senator Bayh. But, the amendments do and that brings in problems that some people do not feel are related. But, it seems to me that if we are going to examine these proposed amendments to the Constitution, we need to find out just what the full ramifications of our efforts are going to be. If life begins at that moment of fertilization, then those contraceptive devices which are used to prevent conception, prevent the fertilized egg from becoming implanted in the womb would be abortifacients, and therefore would be illegal. Thus, would you suggest that the intrauterine device should be made illegal because it deals with the fertilized egg in that manner?
Senator BARTLETT. Well, I feel that there are many theologians and many doctors who feel that those are not abortive devices, that the implantation must take place, and that in the continuing process there are fertilized eggs which do not implant.
Senator Bayh. Do we not have to be consistent? I am trying to find the answers, but it seems to me that whether it is a Senator or a theologian or a doctor who says “Senator Bayh, life begins when the sperm and the egg join in fertilization," then if we are going to be consistent, and you say you are not supposed to prohibit life, then almost per se you have to logically follow in your reasoning that any effort taken, whether it is commonly called morning after pill or the intrauterine device, that those are really abortive, and thus do, indeed, take life. Is that not consistent logic?
Senator BARTLETT. Well, Mr. Chairman, I think the Buckley amendment deals with life after implanation. What I would hate to see this committee do is become involved in a lot of legalistic specifics and ignore the basic issue of the thousands and thousands of human beings that are killed today by regular abortions, long after implantation.
Senator Bayh. Senator Bartlett, just one moment. You know, I do not know how you can, with all due respect to my friend and colleague from Oklahoma, how you could look at members of the Constitutional Amendment Subcommittee dealing with one of the most complicated, controversial issues and tell us that we are not supposed to get involved in legal specifics when we just have to know how far this proposal is going to go.
Senator BARTLETT. I did not say not get involved. I think you should straighten it out, but I do not think you should have it hang up on that point. I think it is very easy to do that, so I was just expressing a strong opinion that I would hate to see my good friend do that.
Senator Bays. But you see, the question I asked, I still think is relevant.
Senator BARTLETT. I think it is a good question and I think as I understand this bill that it deals with the fertilized egg after implantation. Is that not your understanding? Or if it is not, that was my understanding.
Senator BAYI. Well, I think the technical wording is that every stage of the biological development, and there is also another wording before us.
Senator BARTLETT. Well, my point in what I said, Mr. Chairman, is that I said I think that it can be worked out and I do not at all caution the committee not to discuss the legal detail. I think it is important. But, I think it is important to not get hung up on it. We can solve it.
Senator Bayi. Senator Cook, do you have any questions?
Senator Cook. Let me ask you, Senator, there is one thing I think we have to decide on, in both the House and Senate, because we are talking about the fact that prior to the Supreme Court decision it has been estimated that there were approximately a million illegal abortions in the United States. When we get this in the Constitution, and you are a Member of the U.S. Senate, what kind of criminal penalties are you going to impose on society, and on whom are you going to im
You said in your statement the Supreme Court does not concern itself with the issue of whether or not abortion is murder. Now, that indicates to me that you believe that it is. You have a right to that opinion. Now, once we have this amendment on the Constitution, if we ascribe to the theory that you have promoted here today, then the Congress has to take up the issue of what kind of penalties and what kind of criminal penalties and civil penalties do we impose on society as a result of this constitutional amendment. We just cannot put it on the Constitution and then ignore it, because if it is in the Constitution it then has to be enforced. What kind of enforcement do you recommend to this committee that we consider as a result of proposing to the Congress the constitutional amendment that says that this shall not be done? And what kind of criminal penalties do we impose on a doctor? What kind of criminal penalties do we impose on prospective mothers? Because I think we have to take this into consideration, and I think we as Members of the Congress have to realize that that is also our responsibility. We cannot disregard these penalties just because we say we will now have preserved life in the United States, and yet we know that illegally a million abortions are going to take place, because this new section to the Constitution is not going to stop illegal abortions from occurring.
Now, what do we do? What is our social responsibility, and what is your and my legal responsibility?
Senator BARTLETT. Well, I think the States which had anti-abortion laws for many, many years faced up to that. They had laws which