The point is telling on its face, but not so on further inquiry. There are several answers: (a) The sponsor might have been wrong in his interpretation of the legal effect of the amendment. This was clearly the case when Senator Hatch opined that the amendment would permit legislatures to "place limitations upon the experimental and medical research use of fetuses" (beyond that which they may constitutionally do today). Id. at S10197. (See "C." infra). (b) The intent of the sponsor does not necessarily represent the interest of Congress. Obviously the amendment and the sponsor's remarks in the presentation of it were drafted to attract the widest level of support in the Congress which includes the least common denominator of opposition to Wade. The least common denominator could well include proponents of a health exception. Statements by sponsors are given weight but they "must be evaluated cautiously" (2A Sutherland's Statutory Construction, Sect. 48.15 at 222 (Sands, ed., 1973)), and legislative intent must be distinguished from the subjective intent of individual legislators. Id., sect. 45.06 at 19. (c) The sponsor's interpretation of the amendment as creating a comprehensive power and right in legislatures to do what they want about abortion conflicts with his admirably candid admission that legislation under the amendment would be restricted by other portions of the Constitution. Which other portions? The right to health, for instance? (d) As a matter of legal realism, courts will interpret the amendment as they choose. Such has been the history of the federal courts in the abortion controversy. See Byrn, Judicial Imperialism, Human Life Review, Vol. III, No. 4 at 19 (1977). Professor Victor Rosenblum emphasized in his testimony before the Senate Subcommittee on Separation of Powers (6/1/81) how the Court in Wade ignored the intent of the sponsors of the Fourteenth Amendment that the amendment be "universal" in its protection and apply to "any human being," to "common humanity," to "every member of the human race." How much easier would it be for a court to ignore the sentiments of the sponsor of S. J. Res. 110 when confronted with a choice between affirming the acknowledged right to health of a pregnant woman and the continued existence of a thing! How easy it would be the Court simply to cite the extract from Jacobson v. Mass., which I quoted earlier, and write a health exception into the amendment! B. S. J. Res. 110 does not empower Congress or the states to act with respect to fetal experimentation or the medical research use of fetuses. To the extent that Congress or the states presently lack complete power to bar fetal research and the medical research use of fetuses, S. J. Res. 110 would not supply it. The amendment grants the power to restrict and prohibit abortions. It does not speak to other insults to the integrity of the unborn. Professor Rosenblum analogizes S. J. Res. 110 to the Thirteenth Amendment and maintains that Congress and the states would be empowered to eradicate the "badges and incidents" of abortion, just as the badges and incidents of slavery may be eradicated legislatively under the Thirteenth Amendment. (Testimony before the Senate Subcommittee on the Constitution, 11/16/81). . But the Thirteenth Amendment is prohibitory; S. J. Res. 110 is permissive. The Thirteenth Amendment condemns slavery; S. J. Res. 110 permits abortion. It is the prohibitory nature of the Thirteenth Amendment which gives to Congress the power to eliminate the badges and incidents of slavery. As the Supreme Court observed in the Civil Rights Cases, 109 U.S. 9, 20 (1883): * * *The Thirteenth Amendment may be regarded as nulli- S. J. Res. 110 does not "nullify" abortion; it permits it. It does not have "a reflex character" establishing the personhood and rights of the unborn; its "reflex character" constitutionalizes the nonpersonhood and rightlessness of the unborn. It is not protective of the unborn; it bears no resemblance to the Thirteenth Amendment. S. J. Res. 110 confers a limited right to legislate in the area of abortion. It confers no right to legislate with respect to fetal experimentation or the medical research use of fetuses. C. The constitutionalization of the unborn as things under S. J. Res. 110 exacerbates the danger that others whose lives are also deemed not to be meaningful will also be depersonalized. Once one burdensome class of human beings is read out of the Fourteenth Amendment personhood, it becomes easy to extend their fate to other classes. In a decision dealing with the cessation of medical treatment for a comatose patient, a New York court inquired whether the state has an interest in preserving the patient's life. Said the court, "Indeed, with Roe [v. Wade] in mind, it is appropriate to note that the state's interest in preservation of the life of the fetus would appear to be greater than any possible interest the state may have in maintaining the continued life of a terminally ill comatose patient* * *Such claim to personhood [of the patient] is certainly no greater than that of the fetus." Matter of Eichner, 73 A.D.2d 431, 465-66 (1980), affirmed on other grounds, 52 N.Y.2d 363 (1981). The issue of the cessation of medical treatment for the comatose patient is a complex one. But no involved debate or profound insight is required to perceive that, however they are treated, persons at the end of life ought not be read out of the human race. Yet the New York court did it on the justification that such individuals cannot be persons because fetuses are not. The New York court relied on Wade. At least as of now Wade still remains controversial. We can challenge it. We can condemn it as the bad law that it is. We can defend other classes against the jurisprudence of Wade by attacking Wade. Were S. J. Res. 110 to become the law of the land, the fetus, as a matter of undeniable constitutional law, would have no claim to personhood. Would not 12-577 0 82 - 25 we then suffer an accelerated judicial depersonalization of other classes whose lives are not "meaningful" (to be followed, perhaps by a series of constitutional amendments creating discretion in legislatures to protect or refrain from protec*ing the defective newborn, the terminally ill and other of the besieged of our species)?* D. S. J. Res. 110 would bar a Human Life Bill. It seems self-evident that an amendment to the Constitution which categorizes the unborn as less than persons would bar any congressional legislation declaring them persons. CONCLUSION No one questions but that Senator Hatch and the supporters of his amendment genuinely abhor abortion. I suggest, however, that there is no warrant in legal experience to believe that S. J. Res. 110 will accomplish anything except to accelerate disdain for the lives of the unborn (and others). There has never been a time in history when compromise on the personhood of a class has led to respect for their personhood. It did not work for American slaves; it did not work for German Jews; it did not work for the unborn in the pre-Wade days when "moderate abortion reform" statutes were being enacted. It will not work under S. J. Res. 110. For a more detailed exposition of the euthanasia aspects of Wade, see Byrn, An American Tragedy: The Supreme Court on Abortion, 41 Fordham Law Review 807, 859-61 (1973). In most cases, the same thread weaves through the stories of the women we see. This thread is the fact that no one offered or seemed to care about solutions, other than abortion, that the women could choose when they were faced with problem pregnancies. Had they been shown "another" way, perhaps today things might be different for them. At Lifeline we constantly see women who have already had abortions and who tell us that, had they had information about alternatives, they would never have aborted. Following abortions many women come to our office for pregnancy tests when there is no reason to suspect they are pregnant. They come because they say they "can feel the baby kicking". After talking with the client we find that she has had an abortion and is not fully reconciled to that fact. 1) Name: C. CASE HISTORIES Age: 15 Status: Single Became pregnant one year ago. Raped by friend. Rape was not reported. Saline abortion at four months. Crying over the phone because "baby was already moving" at the time of her abortion. After saline injection "My baby kicked for the last time". She was so troubled by it she asked to see her baby. They told her she was foolish but she insisted. It was a boy. This year circumstances have repeated. At 15 she is pregnant again, raped by same "friend" who forced her again. She is seeking help because she couldn't go through another abortion. 2) Name: V. Age: 34 Status: Divorced Her statement "No baby could have ever caused the emotional and physical suffering that I have gone through since the abortion." She has been in a mental hospital; has since been divorced and at times contemplated suicide. She attributes most of her problems, including her divorce, to the fact that she had the abortion. 3) Name: S. Age: 28 Status: Married Approached a Lifeline volunteer after speaking engagement. Her abortion had been performed nine years ago when she was a single college student. She felt that her education was more important than carrying a baby. S. was in counseling for a few years after the abortion. She said she cried every night for seven years and many times contemplated suicide. Now as a married women she still has a difficult time accepting the fact that she denied life to her first baby. 4) Name: L. Age: 25 Status: Married Hasn't informed husband of abortion that she had several years ago before she met and married him. They want children badly but she has not been able to conceive. Because she feels her inability to become pregnant stems from her abortion, she is experiencing great guilt and was in need of reconciliation. 5) Name: R. Age: 40 Status: Married He His mar Wife had prominent new position and did not want to be tied down with baby. He agreed because they had so much (home, property, kennels--"The American Dream") and felt that a baby would be too time consuming and besides they already had one child. is feeling great remorse, blaming himself and his wife. riage has broken up and he feels the abortion has had a direct bearing on this. He says that nothing material that they have acquired is worth the destruction of their baby. Now he hates what he originally wanted to preserve because everything reminds him of the real price they paid. 6) Name: D. Age: 23 Status: Single A suction abortion at 10 weeks, one month ago. The father is nowhere in the picture. Very intelligent. Career women. She now realizes she must seek some competent counseling because of her recent abortion, she is having trouble dealing with it mentally. 7) Name: M. Age: 27 Status: Single Lives at home with mother. Became pregnant after a neighbor in the same building forced her to have intercourse. Pregnancy that resulted was "her problem". He wanted nothing to do with it. After a few months of anguish and worry because of medication she had taken she decided to have a saline abortion on the advice of doctor and social worker. This was three years ago. The man has since married and has a one-year-old baby. They still live in the same apartment building and this is a constant reminder to her of her abortion and the child that she might have had. Her problems are the same--Life has not become easier because she didn't carry her baby--only sadder. |