Senator Jacob M. Howard of Michigan, who sponsored the amendment in the Senate, regarded it as applicable to any member of the human "race." Cong. Globe, 39th Cong., 1st Sess. 2766 (1866). Echoing the familiar phrases of the Declaration, these men sought to give added legal protection to rights that the founders of our republic had declared fundamental, paramount among which is the right to life. The fourteenth amendment stands upon the principle that all human life has intrinsic worth and equal value. To sacrifice the sanctity-of-life ethic is thus to abrogate the fourteenth amendment. The Supreme Court itself has strongly implied support for the sanctity-of-life ethic, by holding that "person" must include all living human beings:

We start from the premise that illegitimate children are not "nonpersons." They are humans, live, and have their being.

Levy v. Louisiana, 391 U.S. 68, 70 (1968). In its 1973 abortion decision, the Supreme Court did not consider whether unborn children fit within this definition of "person." Because it found itself unable to resolve the question of when human life begins, the Court did not face this question. If, in a case arising as a result of S. 158, the Supreme Court should accept this subcommittee's finding that unborn children are living human beings, the Court would then be squarely presented with the question whether the Levy definition of human personhood applies equally to the unborn. Supreme Court justices have strongly affirmed the principle of the sanctity of human life in cases arising in the context of capital punishment. Justice Brennan refers to our society as "a society that... strongly affirms the sanctity of life. "Furman v.

Georgia, 408 U.S. 238, 286 (1972) (Brennan, J., concurring). This ethic accords supreme value to the life of each human being simply by virtue of its humanity. "The State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings." Id. at 270. Such punishment, he observes, "may reflect the attitude that the person punished is not entitled to recognition as a fellow human being." Id. at 273.

The sanctity-of-life ethic affirmed in these statements, we believe, is a concept at least as important in the context of abortion as in the context of capital punishment. The Subcommittee does not express any view on whether, under our Constitution, a convicted criminal may be punished by forfeiting his life. We merely observe that the sanctity-of-life ethic demands the utmost respect for the value of innocent lives.

It is true, of course, that the Justices did not make similar observations in the 1973 abortion decision. Once again, it is crucial to note, however, that they also professed not to know whether the unborn were living human beings. Views of Supreme Court Justices can certainly change as the Justices acquire a deeper understanding of the facts on which constitutional rules must operate. For instance, the Court itself has said that the interpretation of the eighth amendment "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." Weems v. United States, 217 U.S. 349, 378 (1910). In like fashion, the fourteenth amendment's protection of life can certainly acquire meaning as scientific facts concerning the beginning of

human life enlighten public opinion and as Congress affirms the principle of the sanctity of life.

It is instructive to note that the highest court of West Germany accorded constitutional protection to unborn children precisely because the court affirmed the principle of the sanctity of human life. The "Basic Law," or the Bonn constitution, of West Germany guarantees the "right to life." The court explained this guarantee as a reaction against the Nazi regime's idea of "Destruction of Life Unworthy to Live" and as an "affirmation of the fundamental value of human life . . . ." Therefore, the court concluded:

The development process thus begun is a continuous one which manifests no sharp caesuras and does not permit any precise delimitation of the various developmental stages of the human life. It does not end with birth either; the phenomena of consciousness specific to human personality, for instance, do not appear until some time after birth. Therefore the protection of Article 2, paragraph 2, sentence 1, of the Basic Law may not be limited either to the "completed" human being after birth nor to the independently viable nasciturus. The right to life is guaranteed to everyone who "lives;" no distinction can be made between individual stages of the developing life before birth or between prenatal and postnatal life.

c) In countering the objection that "everyone" in common parlance and in legal terminology generally denotes a "completed" human person, [and] that, therefore, a purely verbal interpretation militates against the inclusion of the prenatal life in the range of efficacy of Article 2, paragraph 2, sentence 1, of the Basic Law, it must be emphasized that in any event the sense and purpose of this constitutional provision require that the protection of life be also extended to the developing life. The safeguarding of human existence against transgressions of the State would be incomplete if it did not also comprise the preliminary phase of the "completed life," the prenatal life. Decision of February 25, 1975, [1975] 39 BVerfGE 1.

The West German court recognized the dangers that can follow when a society rejects the idea that all human lives have intrinsic worth. If American law comes to reject the principle of the sanctity of human life, there will be no secure protection for the lives of those, born or unborn, who are weakest and most vulnerable. Some judges have already expressed a belief that the life of a physically or mentally handicapped individual is of less value than the life of other persons. Even before Roe v. Wade a federal judge found that the state interest is "virtually nil" in protecting the life of an unborn child who is "likely to be born a mental or physical cripple." Abele v. Markle, 342 F. Supp. 800, 804 (D. Conn. 1972). To kill such a child before birth, the judge believed, would be a "therapeutic" measure. Id. Similarly, another federal judge has belittled the value of the life of any unborn child who is "defective" or "intensely unwanted by its future parents." Doe v. Scott, 321 F. Supp. 1385, 1391 (N.D. Ill. 1971).

Fortunately, federal courts have not carried such reasoning to its logical conclusion. So far they have not ruled that newborn babies

who are physically or mentally handicapped and unwanted by their parents are somehow less than human. A Nobel Prize-winning scientist and proponent of the quality-of-life ethic, however, has made just such a suggestion:

If a child were not declared alive until three days after
birth, then all parents could be allowed the choice

The doctor could allow the child to die if the parents so
chose and save a lot of misery and suffering.

Interview with James. D. Watson, Children from the Laboratory, 1
Prism 12, 13 (1973).

Because it affirms the Constitution, the Subcommittee cannot accept any legal rule that would allow judges, scientists, or medical professors to decide that some human lives are not worth living. We must instead affirm the intrinsic worth of all human life. We find that the fourteenth amendment embodies the sanctity of human life and that today the government must affirm this ethic by recognizing the "personhood" of all human beings. Earlier we found, based upon scientific examination, that the life of each human being begins at conception. Now, basing our decision not upon science but upon the values embodied in our Constitution, we affirm the sanctity of all human life. Science can tell us whether a being is alive and a member of the human species. It cannot tell us whether to accord value to that being. The government of any society that accords intrinsic worth to all human life must make both a factual determination recognizing the existence of all human beings and a value decision affirming the worth of human life.

VI. LEGAL EFFECT OF S. 158

The provisions of section two of S. 158 follow necessarily from the findings of S. 158 and of this subcommittee: first, that unborn children are human beings, and, second, that the lives of all human beings have intrinsic worth and equal value. The sanctity-of-life ethic embodied in the fourteenth amendment requires that all human beings be recognized as persons for purposes of the protection of life secured by the fourteenth amendment. The ethic embodied in this amendment does not allow government to deny the value of any human life on grounds of race, sex, age, health, defect, or condition of dependency. Unborn children, because they are human beings, must therefore be persons entitled to the fourteenth amendment's protection of life. Section two of S. 158 enforces the amendment's protection of life by guaranteeing that that protection applies to all human beings, including unborn children.

The first effect of S. 158 is to require the Supreme Court to reconsider its holding in Roe v. Wade that unborn children are not persons entitled to protection of their lives under the fourteenth amendment. With the findings of S. 158, the Court faces a fundamentally different issue than it faced in Roe v. Wade. In that case it addressed the personhood issue without purporting to know whether unborn children are human beings and without considering whether all human lives are to be accorded intrinsic worth and equal value under our Constitution. Now, the findings of S. 158 would appear to bring the question of the personhood of unborn children within the holding of Levy v. Louisiana, in which the

Court stated that individuals who are "humans, live, and have their being" cannot be "nonpersons." 391 U.S. 68, 70 (1968). Upon review of S. 158, it will be for the Supreme Court to resolve the inconsistency between Levy and Roe and to make the ultimate constitutional decision whether unborn children are persons entitled to protection of the fourteenth amendment right to life.

The second legal effect of S. 158 will be to require the Supreme Court to reconsider its 1973 holding that found the right of privacy to include abortion and that permitted abortion on demand throughout the term of pregnancy. In Roe v. Wade, the court observed that any decision of the abortion issue must be "consistent with the relative weights of the respective interests involved. . . ." 410 U.S. at 165. The findings of S. 158 pose a question concerning the respective interests involved in abortion, but that question is fundamentally different from the question the Court addressed in Roe v. Wade. The Court never considered whether the interest in having an abortion outweighs the interest in the life of a human being whose life is accorded intrinsic worth. The congressional findings in S. 158 will require the Court to reexamine whether the respective interests involved in an abortion can justify a judicial policy of abortion on demand. In Roe v. Wade the Court already stated:

If the suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. 410 U.S. at 156-57.

If the Supreme Court follows this reasoning, upon enactment of S. 158 into law, states will be able to protect unborn children by laws similar to those widely enforced before the Supreme Court struck down anti-abortion laws in 1973. S. 158 also expresses the incontrovertible principle of constitutional law that states have authority to protect the lives of those they rationally regard as human beings. Whatever the scope of the right to privacy may be, it cannot include a right to kill a human being.

The third legal effect of S. 158 is that no state will be able to deprive an unborn child of life without due process of law. Under Supreme Court precedent, states could thus perform or fund abortions only when necessary to protect compelling state interests. Protection of the life of the mother would surely be interpreted as one such compelling state interest. See Roe v. Wade, 410 U.S. at 173 (Rehnquist, J., dissenting). Other difficult cases will be resolved by the courts on a case-by-case basis. It seems apparent, however, that in light of S. 158 no state could fund or perform abortions on demand.

What S. 158 will not do is also important to recognize. First, S. 158 establishes no criminal penalties; the passage of S. 158 will not make abortion a crime.

Second, while S. 158 will prevent states from funding or performing abortions on demand, it will not automatically prevent the performance of abortions by private means. The fourteenth amendment only provides that no state shall deprive any person of life without due process of law. See Martinez v. California, 444 U.S. 277, 284 (1980). The amendment does not directly affect private action; therefore S. 158 will not directly affect the performance of

abortions by private clinics. A state's failure to act to protect unborn children against privately performed abortions, moreover, would not likely be deemed state action. See Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974); Reitman v. Mulkey, 387 U.S. 369, 381 (1967) (equal protection clause applies to private action only when the state has acted affirmatively to "encourage and involve the State in private discrimination"); Burton v. Wilmington Parking Authority, 365 U.S. 715, 721-22 (1961) ("private conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the State in any of its manifestations has been found to have become involved in it"). Consequently, abortions will become illegal in the wake of S. 158 only if state legislatures choose to make them illegal. It is incorrect to state that S. 158 will make abortion "murder." S. 158 will not make abortion murder because it does not even make abortion a crime. Further, states are not likely to make abortion murder, since before 1973 all state anti-abortion laws established abortion either as a lesser degree of homicide or as a crime against the person designated only as "abortion," with leser penalties. This subcommittee regrets that the widespread journalistic use of the term "murder" in connection with S. 158 has engendered unwarranted emotionalism on this topic; such reports reflect a misunderstanding of this bill.

The third thing S. 158 will not do is allow states to outlaw any forms of contraception. S. 158 allows states to protect unborn children only after they have come into existence at conception. Contraceptives, by definition, prevent conception. They do not terminate the life of any living human being. Furthermore, drugs and devices that do act to perform abortions after conception will not be prohibited following enactment of S. 158 unless states so legislate.

Fourth, S. 158 will not require state lesislatures to categorize abortion as murder. State legislatures will have descretion, within limits of reason, to set penalties for abortion as for any other crime. They may consider mitigating circumstances for the crime of abortion, just as for any other degree of homicide or any other crime. States, furthermore, may make exceptions from an abortion statute where there is a compelling state interest for doing so. Such an interest would certainly exist in a case where an abortion was necessary to save the life of the mother, assuming that in such cases all practicable means are taken to preserve the life of the child. Here, as before, other difficult cases will have to be resolved by the courts on a case-by-case basis.

VII. CONSTITUTIONALITY OF S. 158

Congress has constitutional power to enact S. 158 despite the holding of Roe v. Wade that unborn children are not persons and there is a right to abort them. The findings of S. 158 that unborn children are human beings as a matter of biological fact and that the sanctity-of-life ethic is central to our Constitution create a fundamentally different question of constitutional law than the Supreme Court faced in Roe v. Wade. The factual question whether unborn children are human beings is central to deciding whether their lives are protected by a constitutional amendment that is intended to protect all human beings. The value decision of wheth