Religion Morality and Abortion - A Constitutional Appraisal
Religion Morality and Abortion - A Constitutional Appraisal
4-1-1969
Recommended Citation
Tom C. Clark, Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loy. L.A. L. Rev. 1 (1969).
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RELIGION, MORALITY, AND ABORTION:
A CONSTITUTIONAL APPRAISAL
by Mr. Justice Tom C. Clark*
Thought without action is an abortion;
action withoui thought is folly. 1
Our society is currently in the midst of a sexual revolution which
has cast the problem of abortion into the forefront of religious, medi-
cal, and legal thought. In my day at the bar all discussion of abortion
was taboo. For more than sixty years the American Medical Associ-
ation had a negative policy respecting abortion. The A.M.A. 'often
sought the prosecution of any doctor who. engaged in the practice of
abortion, regardless of the merits of the individual situation. Society's
general attitude toward abortion was such that the patient was ostracised
and the doctor was disgraced. As in so many other facets of its moral
code, however, society was hypocritical in its behavior. Despite the
public pronouncements against its practice, abortions increased, especi-
ally among married women, and judicial action against the participants
2
decreased in proportion.
Some social commentators argue that Freud prepared the way for the
Kinsey Report, which in turn set the' stage for the sexual permis-
siveness that Reinhold Niebuhr called "moral anarchism."' This per-
meating permissiveness engendered a need for more efficient birth
control methods, such as "the pill," and precipitated the doom of the
old hypocrisy.
The law, lagging behind as usual, began to emerge from its quagmire
and rid itself of the archaic restraints on abortion. In 1962 the Ameri-
can Law Institute proposed an affirmative* policy declaring that the
termination of pregnancy is justified whenever (1) its continuance
would gravely impair the physical or mental health of the mother,
(2) the child would be born with grave physical or mental defects, or
(3) the pregnancy was the result of rape, incest, or other feloni-
ous intercourse. 4
Within five years of this proposal, the A.M.A. reversed its negative
policy and adopted the A.L.I. proposal with only a few nuances.8 Dur-
ing the next two years, five states liberalized their abortion laws and
adopted the A.L.I. proposal.'
A further liberalization occurred in Great Britain with the adoption
of the 1967 Abortion Act, which permits doctors to consider the
mother's "actual or forseeable environment" in deciding whether an
abortion is necessary.7 The American College of Obstetricians and Gyn-
ecologists (A.C.O.G.) recently advocated enactment of similar leg-
islation in this country." While the permissiveness of the legislation
would contradict existing laws in all states, the A.C.O.G. made it clear
that it does not counsel disobedience to the law. It merely recom-
mended liberalization and repeal of inconsistent laws. It did not, how-
ever, advocate the legalization of abortion for any unwanted pregnancy
or as a population control device.
Various religious, medical, psychological, and legal organizations
have been striving to reach some level of accord on the issues involved
in promulgating a realistic and acceptable policy toward abortion. Em-
phasis on this topic is the result of many factors, including the chaotic
state of thinking that prevails among the professions and the public,
and the medical, emotional, and legal consequences which aborticide
has on today's society.
The Christian Medical Society's symposium on controlling human
reproduction provides a recent illustration of the disagreement that
exists among professionals concerning abortion. Distinguished clerics,
psychologists, doctors, and lawyers sought to determine what course
of action should be followed. They were unable to answer many im-
portant questions, such as: Is the control of human reproduction
against the will and spirit of God? At what stage of the gestation
period does the fetus acquire human status? What are the constitu-
tional limitations upon the State in prohibiting or limiting the control of
4 MODEL PENAL CODE § 230.3 (2) (Proposed Official Draft, 1962).
5 Committee on Human Reproduction, AMA Policy on Therapeutic Abortion, 201
LA.M.A. 544 (Aug., 1967).
6 CAL. HEALTH & SAFETY CODE §§ 25950-54 (West Supp. 1967); COLO. Rnv. STATS.
40-2-50 (Perm. Cumim. Supp. 1968); GA. CODE ANN. § 26-1202 (effective July 1, 1969);
LAws OF MD. ch. 470 (Supp. 1968); N.C. GEN. STAT. § 14-45.1 (Supp. 1967).
7 Abortion Act 1967, c. 87, at 2033.
8 Just How Great Are the Risks of The Pill?, MEDICAL WORLD NEWS, May 24, 1968,
at 23.
19691 ABORTION
be left to each woman acting on the advice of her doctor. This would
have the effect of removing the issue from the hands of the legisla-
tures and the courts, which are virtually helpless to decide an ethical
question as controversial and far-reaching as abortion. 14 Whether or
not we agree with the Association's recommendations, it is readily
apparent at this point that a uniform scheme concerning abortion is
highly desirous.
Throughout history religious belief has wielded a vital influence on
society's attitude regarding abortion. The religious issues involved are
perhaps the most frequently debated aspects of abortion. At the center
of the ecclesiastical debate is the concept of "ensoulment" or "person-
hood," i.e., the time at which the fetus becomes a human organism.
The Reverend Joseph F. Donseel of Fordham University admitted that
no one can determine with certainty the exact moment at which "en-
soulment" occurs, but we must deal with the moral problems of abort-
ing a fetus even if it has not taken place. 1 Many Roman Catholics
believe that the soul is a gift of God given at conception. This leads
to the conclusion that aborting a pregnancy at any time amounts to
the taking of a human life and is therefore against the will of God.
Others, including some Catholics, believe that abortion should be
legal until the baby is viable, i.e., able to support itself outside the
womb. In balancing the evils, the latter conclude that the evil of
destroying the fetus is outweighed by the social evils accompanying
forced pregnancy and childbirth.'
Most civilizations of antiquity prohibited the practice of abortion.17
Ancient Judaism prohibited birth cdntrol except in times of famine.
Assyrian law imposed the death penalty upon any person participating
in an abortion, including the procurer.' Even pagan writers described
abortion as an evil act prohibited by law.' 9
The New Testament is devoid of pronouncements bearing directly
on the issue of birth control or abortion. The Old Testament, how-
ever, does not condemn abortion as a capital offense since the fetus
was not regarded as possessing a soul within the Sixth Commandment
14 Id.
15 Id.
16 Id.
17 For studies in this area see L. EPSTn, MARRIAGE LAWS IN Ti BIBLE AND THI
TALMUD (1942); L. EPSTEIN, SEx LAWS AND CUSTOMS iN JuDsm (1948).
18 H. SAGaS, THE GRATNESS THAT WAS BABYLON 215 (1962).
19 PAULY'S REAL-ENCYCLOPiDIE DER CLASSISCHEN ALTERTUMSWISSENSCHAFT (Wis-
sowa ed. 1962).
1969] ABORTION
20 Exodus 3:21.
21 Genesis 1:28, 4:1, 11:30; Ruth 4:13.
22 Montgomery, How to Decide the Birth Control Question, C'RSTiANrTY TODAY,
March 4, 1966, at 10.
23 Stem, The Issue of Legalized Abortion, 88 CAN. MED. ASS'N J.899 (1963); J.
FLETCHER, MORALS Am ME InmNE 152 (1967); address by E. Bidinton, Symposium of
Christian Medical Society, Aug., 1968.
24 See generally PmosoPHY An EmTcs N MEDICiNE (M. Gelfand ed. 1968).
25 See TherapeuticAbortion, 98 CAN. MED. ASS'N 3. 512 (1968).
26 R. ETINGER, THE PRosPECr OF IMMORALITY 132 (1962). But see Hudeeezek,
De Tempore Animatianis Foetus Humanis Secundum Embroyologiam Hodiernam, in
XXIX ANGELICUM 162-81 (1952). See also Cyronics and Orthodoxy, XII CHRIsmiArry
TODAY 816 (1968).
27 Address by John Scanzoni, Ph.D., Assoc. Prof. of Sociology, Indiana Univ., Nat'l
Convention of Christian Medical Society, Aug., 1968.
LOYOLA UNIVERSITY LAW REVIEW [Vol. 2
per cent of the abortions in California. The less affluent Los Angeles
County with its widespread slum areas accounts for sixty per cent of the
live births and twenty-three per cent of the abortions in California.3
These facts demonstrate quite clearly that the affluent areas account
for a number of abortions disproportionate to their population density.
The increasing number of abortions subjects physicians to increased
dangers of liability for incorrectly interpreting a statute. It appears
that doctors face an uncertain fate when performing an abortion. This
uncertainty will continue unless the legislatures or courts provide re-
lief from liability. Very few states, if any, will repeal all abortion laws
as the Association for the Study of Abortion has recommended. Some
states, however, may liberalize their laws in accordance with the A.L.I.
suggestion, but we have already seen that in states such as California
this is an inadequate remedy in many respects. If the medical pro-
fession is to be accorded complete protection, it will have to come
through the judicial system.
The Supreme Court of the United States has gone far-some critics
contend too far-in permitting individual action in the areas of the
Bill of Rights. It has not, however, dealt directly with the problem
under discussion, nor do the decided cases cast much light on its solu-
tion. The best that we can do is examine related areas and draw some
analogies.
In 1922 the Court held that the right "to marry, establish a home
and bring up children" was an essential liberty within the guarantees of
the Fourteenth Amendment.3 2 In 1925 a public school statute re-
quiring attendance exclusively at state schools was declared unconsti-
tutional on the ground that it unreasonably interfered "with the lib-
erty of parents and guardians to direct the upbringing and education
of children under their control."3 3 This concept was later extended to
34
include "the private realm of family life which the state cannot enter.1
And in 1960 the Court declared, in very broad language, that where
State action significantly encroached upon personal liberty, its action
would be invalid unless the State had a compelling subordinating inter-
est in the particular activity.3 5 Finally, in Griswold v. Connecticut36
the Court struck down the state's statute prohibiting the use of con-
traceptives. The statute was found to operate upon "an intimate rela-
tion of husband and wife" which came within the zone of privacy cre-
ated by several fundamental constitutional guarantees, the penumbras of
which gave protection to the sanctity of a man's home and the privacies
of his life. The Court determined that the statute was aimed at use
rather than regulation and therefore violated the principle that legis-
lation must not be unnecessarily broad. This does not mean that judges
are given a free rein to strike down state regulatory statutes. They
must look to the collective conscience of our society in determining
which rights are fundamental and therefore protected by the Constitu-
tion.
The result of these decisions is the evolution of the concept that
there is a certain zone of individual privacy which is protected by the
Constitution. Unless the State has a compelling subordinating interest
that outweighs the individual rights of human beings, it may not inter-
fere with a person's marriage, home, children, and day-to-day living
habits. This is one of the most fundamental concepts that the Found-
ing Fathers had in mind when they drafted the Constitution. No one
will deny that a State has a valid interest in regulating the well-being
of its inhabitants, especially -when it is dealing with children, who are
more susceptible to undesirable influences. We have also seen that a
State may not unreasonably interfere with the intimate relations of its
inhabitants. When deciding on the constitutional restraints imposed
on a State's interference with individual rights, the vital question be-
comes one of balancing. It must be determined at what point the State
is interfering with individuals and at what point it is exercising valid
authority by regulating the well-being of children.
In his concurrence in Griswold, my brother Goldberg asked whether
a decree requiring all husbands and wives to be sterilized after the
birth of ten children would be valid. He answered the question in
the negative.87 But suppose that the husband and wife voluntarily sub-
mitted to sterilization. Would it then violate the Constitution? I think
not. Does it therefore follow that voluntary destruction of the fetus is
also protected from interference by the State? Perhaps-unless life is
present so that the State's compelling subordinating interest in the life
of one of its people predominates. However, I submit that until the
time that life is present, the State could not interfere with the inter-
ruption of pregnancy through abortion performed in a hospital or un-
der appropriate clinical conditions. I say this because State interfer-
meets egg life may eventually form, but quite often it does not. The
law does not deal in speculation. The phenomenon of life takes time
to develop, and until it is actually present, it cannot be destroyed. Its
interruption prior to formation would hardly be homicide, and as we
have seen, society does not regard it as such. The rites of Baptism
are not performed and death certificates are not required when a mis-
carriage occurs. 41 No prosecutor has ever returned a murder indict-
ment charging the taking of the life of a fetus. This would not be the
case if the fetus constituted human life.
It has been urged that the courts are the proper forum to determine
when life begins. I submit, however, that the professionals are better
able to determine when life begins than are the courts. Tort cases
might cast some light on the issue,46 but I would prefer that the courts
yield to the expert testimony of doctors. This testimony would vary
greatly, but that is nothing new to our judicial system.
This is not a question that will be easily resolved. Few questions
that reach the Supreme Court are. As was stated at the Christian Med-
ical Society's Symposium, "professionals . . . do not wish to play God
with human lives, whether in being or inchoate with life. But we can
inform our judgment . . . by the widest interchange, airing and con-
census. Humility is a large part of every professional's code. ' '47 It
must be remembered that many imponderables are a part of Supreme
Court adjudications.
Accommodation of conflicting doctrine is more difficult to achieve
in the judicial than in the legislative process. Courts cannot reach out
to reform our society. A problem comes to the Court in the form of a
justiciable issue and is narrowly drawn, rendering the Court's ruling
contracted and finespun. Legislatures, on the other hand, have such
facilities for investigation as hearings and may address themselves to
the necessities of broad social needs and the correction of evils, both
probable and existing. As Mr. Justice Cardozo said, "Legislation
can eradicate a cancer, right some hoary wrong, correct some defi-
nitely established evil, which defies the feebler remedies, the distinc-
tions and the fictions familiar to the judical process. ' 48
45 Schwartz, Abortion and 19th Century Laws, TnRu June-July, 1967, at 41.
46 Kwaterski v. State Farm Mut. Ins. Co., 34 Wis. 2d 14, 148 N.W.2d 107 (1967);
Hatala v. Markiewicz, 26 Conn. Supp. 358, 224 A.2d 406 (1966). Contra, Norman
v. Murphy, 124 Cal. App. 2d 95, 268 P.2d 178 (1954); Marko v. Philadelphia Transp.
Co., 420 Pa. 124, 216 A.2d 502 (1966).
47 Prof. Thomas Lambert, Jr., Editor-in-Chief, American Trial Lawyers Ass'n, for-
mer Prof. of Law, Boston Univ.
48 B. CARwozo, GRowmr OF 'rm LAw 134 (1924).
19691 ABORTION
The courts work on a case-by-case system which deals with the past
rather than the future. Society would not have the benefit of the
sweeping effect of a statute, nor would the doctor have the protection
that he is entitled to receive. The case method would be slow, expen-
sive, and possibly disastrous. It is for the legislature to determine the
proper balance, i.e., that point between prevention of conception and
viability of the fetus which would give the State the compelling subor-
dinating interest so that it may regulate or prohibit abortion without
violating the individual's constitutionally protected rights.
The present climate seems favorable for immediate legislative action.
Five states have already led the way.4 With appropriate action,
many more will follow suit in liberalizing their abortion laws. But
this process will take less talk and more action. As Nehru once said:
I am tired of people who merely talk about things. However wise
you may be, you can never enter into the spirit of a thing if you only
talk about it and do nothing. Even scientists have a tendency to let
a wonderful experiment remain an experiment once it has been per-
formed. The next stage somehow does not come. They may well say
that the next stage is somebody else's job, but I think if the scientist had
a sense of practical application, he would either try to do it himself, or
get somebody else to do it. This association of thought with action is,
I think, of utmost importance. Thought without action is an abortion;
action without thought is folly.50