answer the question of whether that particular develop- Dr. James Ebert, President of the Carnegie Institution, stated in this letter to the Subcommittee: I do not believe that the statement in Chapter 101, Section 1 can be supported. This Section reads "The Congress finds that present day scientific evidence indicates a significant likelihood that actual human life exists from conception." This statement embodies and expresses a dogmatic and dangerously narrow definition of "actual human life", for human life cannot properly be said to begin at any single moment fixed in time. Indeed, human life is a continuum, proceeding generation after generation. The eggs contained in the ovary of a very young girl ripen and are shed over her reproductive lifetime. These eggs like the other cells of the woman's body are living. The sperm maturing in the human male are no less alive. The union of living egg and living sperm results in a living zygote, no less alive than its parental predecessors, but differing from both of them. But the zygote is but one fleeting morphologic and physiologic entity in the panorama that is human development. When does "personhood begin?" In my opinion, the question cannot be answered scientifically. Some might argue for the moment of conception, others for the moment at which the heart first begins to beat, or the face takes shape, or the brain begins to function. Some physiologic functions do not come into play until after birth; and as Peter Medawar has written "birth is a moveable feast in the calendar of development." Dr. Robert Ebert, President of the Milbank Memorial Fund and former Dean of Harvard Medical School, wrote the Subcommittee as follows: I know of no ". . . current medical and scientific data. . ." that supports the contention ". . . that human life in the sense of an actual human being or legal person begins at conception." Life in the biologic sense does not begin the moment that an ovum is fertilized by a sperm, since both have life prior to that event. In my view, the question of human personhood is neither a medical nor a scientific question. În one sense it is a philosophical question which can be debated endlessly and has to do with how one defines a person and "self." But in the context of the present legislative proposal, I believe it can best be described as a religious question. Dr. Clifford Grobstein, Professor of Biological Science and Public Policy Science and former Dean of the School of Medicine at the University of California at San Diego listed for the Subcommittee what he considered to be the consensus views of science and then concluded: The implication of these statements is that at fertilization a new generation in a genetic sense is constituted, but that two weeks later a new and stable biological entity or individual is not yet certainly present. Exactly when such an entity arises is not known for certain in the human species but it is probably not many days later. The development of such an entity, therefore, is gradual and involves a number of transitions and stages. No single moment nor event is known scientifically to mark its initiation, rather it emerges steadily out of the developmental process as an additional characteristic beyond being alive and biologically human. Returning to the language of Roe v. Wade and S. 158, it would be scientifically more accurate to say that "human life does not begin with fertilization (conception) but hereditary individuality does. Individuality in the sense of singleness and wholeness, however, cannot be said to be established until more than two weeks after fertilization." And finally, the National Academy of Sciences forwarded to the Subcommittee the following resolution passed by its membership at its annual meeting on April 24, 1981 concerning the original text of S. 158: Resolution. It is the view of the National Academy of Sciences that the statement in Chapter 101, Section 1, of the U.S. Senate Bill S. 158, 1981, cannot stand up to the scrutiny of science. This section reads "the Congress finds that present-day scientific evidence indicates a significant likelihood that actual human life exists from conception." This statement purports to derive its conclusions from science, but it deals with a question to which science can provide no answer. The proposal in S. 158 that the term 'person" shall include "all human life" has no basis within our scientific understanding. Defining the time at which the developing embryo becomes a "person" must remain a matter of moral and religious value. CONCLUSION I cannot support S. 158 because I believe it is an attempt to end run the constitutional amendment process. The legislation undermines the central role of the judiciary as it has existed in this country since Marbury v. Madison. The theory underlying the bill envisions a system of government where constitutional protections are illusory and where the basic protections of the Constitution can be diluted or eliminated by simple majorities of the Congress. In my view, the legislation runs counter to principles of judicial independence and the separation of powers that lie at the very heart of our constitutional system. Additionally, I am deeply concerned that S. 158 will lead to an erosion of the central role of the states in our federal system. Not only could the theory behind the bill lead to an expanded federal role in almost every area of the law, but S. 158 eliminates a state's authority to set policy on state funding of abortions and distribution of contraceptives (e.g. IUD's and morning after pills) at state supported hospitals. Finally, I believe the provision eliminating lower federal court jurisdiction over certain abortion cases is unconstitutional. I personally am opposed to efforts to remove federal court jurisdiction over constitutional cases. However, even if Congress has the power to remove lower federal court jurisdiction over constitutional cases, it must do so in a neutral, even-handed manner. Section 4 of S. 158 effectively closes the federal courthouse to citizens on one side of the issue, while keeping it open to citizens on the other. It, therefore, represents an unconstitutional exercise of Congress' power to control the jursidiction of the lower federal courts. |