clear, it is crucial to understand how, for example, one noted professor of genetics from Yale University School of Medicine could say that he knows of no scientific evidence that shows when actual human life exists.9

Such statements appear on the surface to present a direct contradiction to the biological evidence discussed above. The explanation of this apparent contradiction lies in the existence of the two distinct questions identified above, the scientific question and the value question. We must consider not only whether unborn children are human beings but also whether to accord their lives intrinsic worth and value equal to those of other human beings. The two questions are separate and distinct. It is a scientific question whether an unborn child is a human being, in the sense of a living member of the human species. It is a value question whether the life of an unborn child has intrinsic worth and equal value with other human beings.

Those witnesses who testified that science cannot say whether unborn children are human beings were speaking in every instance to the value question rather than the scientific question. No witness raised any evidence to refute the biological fact that from the moment of human conception there exists a distinct individual being who is alive and is of the human species. No witness challenged the scientific consensus that unborn children are "human beings," insofar as the term is used to mean living beings of the human species.

Instead, these witnesses invoked their value preferences to redefine the term "human being." The customary meaning of "human being" is an individual being who is human, i.e., of the human species. This usage is that of the medical and scientific writers quoted above and of all the medical textbooks to which the Subcommittee has been referred; of Doctors Lejeune, Gordon, and Matthews-Roth, who testified before the Subcommittee; of the American Medical Association in 1859; and of Planned Parenthood in 1963. In this sense a "human being" is something that can be identified by science. Whether a living being is human is thus, in the words of Dr. Lejeune, a matter of "plain experimental evidence." Hearings on S. 158 (April 23 transcript at 25). Disregarding the customary scientific definition of human being, some witnesses sought to make "human being" and "humanness" into undefined concepts that vary according to one's values. They took the view that each person may define as "human" only those beings whose lives that person wants to value. Because they did not wish to accord intrinsic worth to the lives of unborn children, they refused to call them "human beings," regardless of the scientific evidence. This technique of argument has been openly advocated by one commentator who writes that "[w]hether the fetus is or is not a human being is a matter of definition, not fact; and we can define any way we wish." Hardin, Abortion-or Compulsory Pregnancy? 30 J. of Marriage & the Family 246, 250 (1968). This line of argument does not refute the consensus answer to the scientific question; instead it evades the scientific question by focusing solely on the value question. By adopting this line of argument, some witnesses appearing before the Subcommittee, notably Dr. Rosenberg, were able to testify that they knew of no scientific evidence showing

9

Hearings on S. 158 (April 24 transcript at 24) (testimony of Dr.

when actual human life exists. That he was speaking only to the value question is evident from his explanation that "science, per se, doesn't deal with the complex quality called 'humanness' any more than it does with such equally complex concepts as love, faith, or trust." Hearings on S. 158 (April 24 transcript at 25).

A careful examination reveals the true nature of this line of argument. By redefining “human being" according to one's value preferences, one never has to admit believing that some human lives are unworthy of protection. Conveniently one can bury the value judgment that some human lives are not worth protecting beneath the statement that they are not human beings at all. An editorial in the journal of the California Medical Association has explained why this line of argument appeals to those who reject the traditional ethic of the sanctity of human life, which accords intrinsic worth and equal value to all human lives:

Since the old ethic has not yet been fully displaced it
has been necessary to separate the idea of abortion from
the idea of killing, which continues to be socially abhor-
rent. The result has been a curious avoidance of the scien-
tific fact, which everyone really knows, that human life
begins at conception and is continuous whether intra- or
extra-uterine until death. The very considerable semantic
gymnastics which are required to rationalize abortion as
anything but taking a human life would be ludicrous if
they were not often put forth under socially impeccable
auspices.

A New Ethic for Medicine and Society, 113 California Medicine 67, 68 (1970).

The Subcommittee rejects as misleading semantic efforts to manipulate the English language and to redefine "human being" according to particular value preferences; instead we adhere to the customary meaning of "human being" as including every living member of the human species. S. 158 embodies the Subcommittee's finding, in accordance with the overwhelming consensus of scientific authority, that the life of a human being begins at conception. Our analysis of the leading works on embryology and fetal development indicates that witnesses who disputed that the life of a human being begins at conception reflect not scientific judgment, but rather the value preference of certain members of the scientific community 10 against protecting the life of unborn human beings. 11

10 A recent survey by a disinterested insurance company found that the two groups in society most favorable toward abortion were the scientific and medical community and the legal profession. While 65 percent of the general public believe that abortion is immoral, only 25 percent of doctors and other scientists and only 25 percent of lawyers express such a belief. THE CONNECTICUT MUTUAL LIFE REPORT ON AMERICAN VALUES IN THE 80S 219 (1981).

11 Practical realities sometimes make it impossible for pro-abortion doctors to evade the fact that unborn children are living human beings. The Philadelphia Inquirer, in its Today magazine section on Sunday, August 2, 1981, ran a cover story by Liz Jeffries and Rick Edmonds entitled "Abortion: The Dreaded Complication." The "complication" described in the article, and so dreaded by abortionist doctors, is that some babies will survive an abortion procedure and be born alive. The article describes one instance in which a live two and one-half pound baby boy survived an abortion procedure: "Dismayed, the second nurse. deposited it.. stainless steel drainboard of a sink in the maternity unit's Dirty Utility Room-a large closet where bedpans are emptied and dirty linens stored. [The patient's physician] told me to leave it where it was,' the head nurse testified later, 'just to watch it for a few minutes, that it would probably die in a few minutes.' Id. at 14.

on the

The Subcommittee is appalled that some in the medical profession show such disdain for the value of a human life. But such tragic events do make it impossible to ignore that the unborn

If the United States government is to give reasonable consideration to the abortion issue it must start from the fact that unborn children are human beings. The hearings before this subcommittee show that this fact is not seriously in doubt; it is questioned only by means of efforts to redefine "human being" in a purely subjective manner. No governmental body that approaches the abortion question with honesty can accept semantic gymnastics that obscure the real issue. Accordingly, we turn next to the real issue in dispute, whether to accord intrinsic worth and equal value to all human lives regardless of stage or condition.

V. THE VALUE QUESTION: SHOULD WE VALUE ALL HUMAN LIVES

EQUALLY?

The answer to the scientific question casts the value question in clear relief. Unborn children are human beings. But should our nation value all human lives equally? Scientific evidence is not relevant to this question. The answer is a matter of ethical judgement.

Deeply engrained in American society and American constitutional history is the ethic of the sanctity of innocent human life. The sanctity-of-life ethic recognizes each human life as having intrinsic worth simply by virtue of its being human. If, as a society, we reject this ethic, we must inevitably adopt some other standard for deciding which human lives are of value and are worthy of protection. Because the standards some use to make such decisions turn on various qualities by which they define which lives are worthy of protection, the alternative to the sanctity-of-life ethic is often termed the "quality-of-life ethic." A sharp division exists today between those who affirm the sanctity-of-life ethic and those who reject it in favor of the quality-of-life ethic. The Supreme Court has never purported to decide which ethic our Constitution mandates for valuing the lives of human beings before birth. Nevertheless, deciding which ethic should apply is fundamental to resolving the abortion issue under the Constitution.

A few proponents of abortion have conceded that the real issue at stake is the intrinsic value of human life. The California Medical Association journal California Medicine, for exampe, has recognized the relationship between the rejection of the sanctity-of-life ethic and the advocacy of abortion:

In defiance of the long held Western ethic of intrinsic
and equal value for every human life regardless of its
stage, condition or status, abortion is becoming accepted by
society as moral, right, and even necessary.

A New Ethic for Medicine and Society, 113 California Medicine 67, 68 (1970). Similarly, some witnesses who appeared before the Subcommittee to oppose S. 158 tacitly rejected the sanctity of human life. For example, one witness stated that "[a]t some point as the amazing chain of events that results in a fertilized egg becoming a human being unfolds, we acquire the basis for those attributes that make us humans, but precisely when I cannot say." Hearings on S.

children being aborted today are human beings. Other medical realities further confirm this fact. For example, babies within their mothers' wombs can now be treated to alleviate various disorders. The doctors treating them do not try to redefine them as non-human. When doctors or scientists deny in selected contexts that unborn children are human beings, their statements should be recognized as evasions of facts by those for whom the facts are inconvenient.

158 (May 20 transcript at 24) (testimony of Dr. James Neel). By this view, only after a developing member of the human race has acquired certain attributes or qualities is he or she accorded value as a "human being."

Advocates of a quality-of-life ethic vary in the qualities they choose as a standard for which human lives to value. The common element of every "quality of life" view, however, is a denial of the intrinsic worth of all human life, along with an attempt to define what qualities must be present in a human being before its life is to be valued. Although the scientific witnesses who adopted the quality-of-life ethic did not state explicitly the theoretical basis for this ethic, it has been the subject of frequent commentary in modern literature on medical ethics. A review of this literature helps in examining this alternative to the sanctity-of-life ethic. A clear, straightforward statement of the quality-of-life ethic is found in an article by religion professor George H. Ball, What Happens at Conception? Christianity and Crisis 274 (Oct. 19, 1981). Professor Ball asserts that "mere biological membership in the species homo sapiens does not make one a human being." Id. at 286. The quality that Professor Ball requires before he will recognize a being as human is "consciousness of self." He summarizes his quality-of-life standard with these words: "Until a living being can take conscious management of life and its direction, it remains an animal." Id.

Professor Ball shows more willingness than many others to follow his theory to its logical conclusion: "Thus, shocking as it may seem, a newly born infant is not a human being." Id.

Candidly, Professor Ball articulates what so many other advocates of a quality-of-life ethic leave to inference. He rejects the customary biological definition of the term "human being." Individuals such as the newborn, who are human beings by any ordinary usage of language, are not human beings in his lexicon. Instead, "human beings" are only those whose lives have a certain quality, a quality which he specifies to be "consciousness of self." Professor Ball does not deny the biological facts of human life; he denies that all human lives have intrinsic worth and equal value.

In another instructive example, Professors Raymond S. Duff and A. G. M. Campbell of the Yale Medical School make clear the opposition between the sanctity-of-life ethic and the quality-of-life ethic. The professors describe the death of certain handicapped infants by starvation, or other deliberate forms of denial of normal care, as a "management option." Duff & Campbell, Moral and Ethical Dilemmas in the Special-Care Nursery, 289 New Eng. J. of Med. 890 (1973). Laws against killing such handicapped infants by inattention, they conclude, "should be changed." Id. at 894. The quality-of-life ethic is superior to the sanctity-of-life ethic:

Recently, both lay and professional persons have ex-
pressed increasing concern about the quality of life for
these severely impaired survivors and their families. Many
pediatricians and others are distressed with the long-term
results of pressing on and on to save life at all costs and in
all circumstances. Eliot Slater stated, "If this is one of the
consequences of the sanctity-of-life ethic, perhaps our for-
mulation of the principle should be revised."

Id. at 890 (footnotes omitted).

Professors Duff and Campbell also expressed a willingness to redefine especially unfortunate newborn human beings as not human beings at all. According to them, "Such very defective individuals were considered to have little or no hope of achieving meaningful 'humanhood.' For example, they have little or no capacity to love or be loved." Id. at 892 (footnote omitted).

This subcommittee rejects the notion that our definition of human being should depend on who is loved or unloved, wanted or unwanted. Though human suffering often accompanies many unfortunate cases of mental and physical handicap, it cannot be allowed to obscure the fact that such unfortunate individuals are indeed human beings. Attempts to redefine "human being" in such cases merely obscure the ethical and moral issues that underlie any public abortion policy.

Our constitutional history leaves no doubt which ethic is written into our fundamental law. The Declaration of Independence expressly affirms the sanctity of human life:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.

The proponents of the fourteenth amendment argued for the amendment on the basis of these principles. Congressman John A. Bingham of Ohio, who drafted the first section of the fourteenth amendment, stated after the adoption of the Joint Resolution of Congress proposing this amendment:

Before that great law [of the United States,] the only
question to be asked of the creature claiming its protection
is this: Is he a man? Every man is entitled to the protec-
tion of American law, because its divine spirit of equality
declares that all men are created equal.

Cong. Globe, 40th Cong., 1st Sess. 542 (1867).

Similarly, Abraham Lincoln emphasized the importance of holding to the concept of the sanctity of human life and of never denying the inalienable value of every human being.

I should like to know if taking this old Declaration of
Independence, which declares that all men are equal upon
principle and making exceptions to it where will it stop. If
one man says it does not mean a negro, why not another
say it does not mean some other man? If that declaration
is not the truth, let us get the Statute book, in which we
find it and tear it out! . . . let us stick to it then . . . let us
stand firmly by it then.

Speech during the Lincoln-Douglas senatorial compaign (July 10, 1858), reprinted in 2 The Collected Works of Abraham Lincoln 484, 500-01 (R. Basler ed. 1953) (footnote omitted).

As the framers planned it, all human beings were to fall within the ambit of the amendment's protection. Congressman Bingham spoke of the rights guaranteed by the amendment as applying to "any human being." Cong. Globe, 39th Cong., 1st Sess. 1089 (1866). Bingham also said the amendment would protect the rights of "common humanity." Cong. Globe, 40th cong., 2d Sess. 514 (1868).