A pediatrician‟s response

to

Roe v Wade

My dad‟s last written words to

me, though he probably did not

realize it at the time, were in

reference to statistics of cases of

abortion taking place at a local

hospital:

“ I do not understand how

they permit them to do it

and how there could be

physicians willing to do this!!!”

Roe v. Wade

http://www.oyez.org/cases/1970-1979/1971/1971_70_18/

Roe v. Wade

Document from CQ Press's

Encyclopedia of U.S. Political History

“By 1970, the question of

whether and how to change

abortion laws had emerged as

one of the most divisive

political issues in American

history.”

“Throughout most of U.S. history, abortion wasboth a taboo topic and rare in reality. It wasnever considered to be a political issue. Eventhe nineteenth-century feminists wereunanimous in denouncing abortion as „childmurder‟ and demanding increasingly strongmeasures against it.”

Document from CQ Press's Encyclopedia of U.S. Political History

U.S. Supreme Court

ROE V. WADE, 410 U.S. 113 (1973)410 U.S. 113

ROE ET AL. v. WADE, DISTRICT ATTORNEY OF DALLAS

COUNTY APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF TEXAS

No. 70-18. Argued December 13, 1971 Reargued October

11, 1972 Decided January 22, 1973

A pregnant single woman (Roe) brought a class action

challenging the constitutionality of the Texas criminal

abortion laws, which proscribe procuring or attempting

an abortion except on medical advice for the purpose

of saving the mother's life.

1973 US Supreme Court

“The majority took as a basis for its analysis the

history of abortion and concluded that the

existing abortion statutes violated the

constitutional rights of pregnant women and

physicians.from CQ Press's Encyclopedia of U.S. Political History

The Court concluded existing abortion statutes violated the constitutional rights of pregnant women

based on

the 14th Amendment.

14th Amendment

Section 1. All persons born or naturalized in the UnitedStates, and subject to the jurisdiction thereof, arecitizens of the United States and of the State whereinthey reside. No State shall make or enforce any lawwhich shall abridge the privileges or immunities ofcitizens of the United States; nor shall any Statedeprive any person of life, liberty, or property, withoutdue process of law; nor deny to any person within itsjurisdiction the equal protection of the laws.

US Constitution

Born – Person

• 14th Amendment defined a “citizen” to be a person born in the United States or a naturalized person -- using the term born to distinguish from those not born in the US.

• 14th Amendment also deliniated the rights of

a person who is a citizen of the United States.

• 14th Amendment did not define “person”, specifically; it did not specify being born as necessary prerequisite to be considered a person.

Merriam-Webster Dictionaryhttp://www.merriam-webster.com/

Origin of PERSON:

Middle English, from Anglo-French persone, fromLatin persona actor's mask, character in aplay, person, probably from Etruscan phersumask, from Greek prosōpa, plural of prosōponface, mask.

First Known Use: 13th Century.

http://www.sandcastlefetalpics.com/images/LROWELL10.JPG

Face of an unborn

child

Constitutional Rights of the Unborn –

Inheritance laws

Regarding inheritance the U.S. Supreme Court in

1884 McArthur v. Scottruled in favor of "The plaintiffs

in the present case, being as yet unborn," regarding

"the will of their grandfather..." Similarly, in their 1972

Weber v. Aetna Casualty & Surety Co. case, in which

the youngest "child was born posthumously," that is

after the father's death, the court ruled that the case

"requires equality of treatment between two classes of

persons," in this case, between legitimate and

illegitimate offspring, and for both born and unborn,

as late as a year before Roe, the court recognized the

inheritance rights of the unborn child.

Constitutional Rights of the Unborn –

Homicide laws

• in 1891 the U.S. Supreme Court in Union Pacific Railway Co. v. Botsford, … a woman convicted of a capital crime would be examined for pregnancy, "in order to guard against the taking of the life of an unborn child for the crime of the mother.”

• As of April 2012, at least 38 states have fetal homicide laws. The states include: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia and Wisconsin. At least 23 states have fetal homicide laws that apply to the earliest stages of pregnancy ("any state of gestation," "conception," "fertilization" or "post-fertilization”) .

-The National Conference of State Legislatures

“The Court drew on two articles by lawprofessor Cyril Means Jr., then the general counselof the National Association for the Reform of AbortionLaws (now NARAL Pro-Choice America). Meansargued that abortion only became a crime becausemoving abortion from midwives to physicians had madethe procedure highly dangerous. Curiously, Means didnot present evidence regarding the methods midwiveswere using at the time, and the only evidence hepresented regarding the dangerousness of abortionsperformed by physicians was evidence regarding thedangerousness of surgery generally in the early

nineteenth century. The Court relied uncriticallyon Means's work, citing him seven times and no otherhistorian more than once.”

from CQ Press's Encyclopedia of U.S. Political History

The 1973 Court claimed:

Our task, of course, is to resolve the issue by

constitutional measurement, free of emotion

and of predilection. We seek earnestly to do

this, and, because we do, we [410 U.S.

113, 117] have inquired into, and in this

opinion place some emphasis upon, medical

and medical-legal history and what that history

reveals about man's attitudes toward the

abortion procedure over the centuries.

Case Name: ROE V. WADE, 410 U.S. 113

VI

2. THE HIPPOCRATIC OATH. WHAT THEN OF THE FAMOUS OATH

THAT HAS STOOD SO LONG AS THE ETHICAL GUIDE OF THE

MEDICAL PROFESSION AND THAT BEARS THE NAME OF THE GREAT

GREEK (460 (?)-377 (?) B.C.), WHO HAD BEEN DESCRIBED AS THE

FATHER OF MEDICINE, THE "WISEST AND THE GREATEST

PRACTITIONER OF HIS ART," AND THE "MOST IMPORTANT AND

MOST COMPLETE MEDICAL PERSONALITY OF ANTIQUITY," WHO

DOMINATED THE MEDICAL SCHOOLS OF HIS TIME, AND WHO

TYPIFIED THE SUM OF THE MEDICAL KNOWLEDGE OF THE PAST?

/13/ THE OATH VARIES SOMEWHAT ACCORDING TO THE

PARTICULAR TRANSLATION, BUT IN ANY TRANSLATION THE

CONTENT IS CLEAR: "I WILL GIVE NO DEADLY MEDICINE TO

ANYONE IF ASKED, NOR SUGGEST ANY SUCH COUNSEL; AND IN LIKE

MANNERI WILL NOT GIVE TO A WOMAN A PESSARY TO

PRODUCEABORTION," /14/ OR "I WILL NEITHER GIVE A DEADLY

DRUG TO ANYBODY IF ASKED FOR IT, NOR WILL I MAKE A

SUGGESTION TO THIS EFFECT. SIMILARLY, I WILL NOT GIVE TO A

WOMAN AN ABORTIVE REMEDY." /15/

Court dismisses Hippocratic Oath

“THE LATE DR. EDELSTEIN PROVIDES US WITH A THEORY…DR. EDELSTEIN THEN CONCLUDES THAT THE OATH ORIGINATED IN A GROUP REPRESENTING ONLY A SMALL SEGMENT OF GREEK OPINION AND THAT IT CERTAINLY WAS NOT ACCEPTED BY ALL ANCIENT PHYSICIANS... THIS, IT SEEMS TO US [The Court], IS A SATISFACTORY AND ACCEPTABLE EXPLANATION OF THE HIPPOCRATIC OATH'S APPARENT RIGIDITY.”

So it appears the 1973 Court dismissed “THE

OATH THAT STOOD SO LONG [Over

2000 years] AS THE ETHICAL GUIDE

OF THE MEDICAL PROFESSION,”

based on the “theory,” and opinion of one

single medical historian - Professor Ludwig

Edelstein (1902-1965), classical scholar and

historian of medicine.

BRIEFS OF AMICI CURIAE

WERE FILED BY GARY K. NELSON, ATTORNEY GENERAL OF ARIZONA, ROBERT K.

KILLIAN, ATTORNEY GENERAL OF CONNECTICUT, ED W. HANCOCK, ATTORNEY

GENERAL OF KENTUCKY, CLARENCE A. H. MEYER, ATTORNEY GENERAL OF

NEBRASKA, AND VERNON B. ROMNEY, ATTORNEY GENERAL OF UTAH; BY JOSEPH

P. WITHERSPOON, JR., FOR THE ASSOCIATION OF TEXAS DIOCESAN ATTORNEYS;

BY CHARLES E. RICE FOR AMERICANS UNITED FOR LIFE; BY EUGENE J. MCMAHON

FOR WOMEN FOR THE UNBORN ET AL.;

BY CAROL RYAN FOR THE AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS ET AL.; BY DENNIS J. HORAN, JEROME A. FRAZEL, JR., THOMAS M.

CRISHAM, AND DOLORES V. HORAN FOR CERTAIN PHYSICIANS, PROFESSORS AND

FELLOWS OF THE AMERICAN COLLEGE OF OBSTETRICS AND GYNECOLOGY;

BY HARRIET F. PILPEL, NANCY F.WECHSLER, AND FREDERIC S. NATHAN FOR

PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., ET AL.; BY ALAN F.

CHARLES FOR THE NATIONAL LEGAL PROGRAM ON HEALTH PROBLEMS OF THE

POOR ET AL.; BY MARTTIE L. THOMPSON FOR STATE COMMUNITIES AID ASSN.;

BY ALFRED L. SCANLAN, MARTIN J. FLYNN, AND ROBERT M. BYRN FOR THE

NATIONAL RIGHT TO LIFE COMMITTEE; BY HELEN L. BUTTENWIESER FOR THE

AMERICAN ETHICAL UNION ET AL.; BY NORMA G. ZARKY FOR THE AMERICAN

ASSOCIATION OF UNIVERSITY WOMEN ET AL.; BY NANCY STEARNS FOR NEW

WOMEN LAWYERS ET AL.; BY THE CALIFORNIA COMMITTEE TO LEGALIZE

ABORTION ET AL.; AND BY ROBERT E. DUNNE FOR ROBERT L. SASSONE.

• by Carol Ryan for the American College of Obstetricians and Gynecologists et al.; by Dennis J. Horan, Jerome A. Frazel, Jr., Thomas M. Crisham, and Dolores V. Horan for Certain Physicians, Professors and Fellows of the American College of Obstetrics and Gynecology;

• by Harriet F. Pilpel, Nancy F. Wechsler, and

Frederic S. Nathan for Planned Parenthood Federation of America, Inc., et al.

Apparently this 2001 publication

suggests the American College of

Obstetricians and Gynecologists was

rushed into contributing to an amicus

curiae and it did not necessarily

reflect the true position of this

organization.

There was no Brief of amici curiae by

the American Academy of Pediatrics

• Did the only American medical organization

committed to advocate for the rights of all

children not have any opinion on Roe v.

Wade?

• Was Roe v. Wade beyond the purview of the

American Academy of Pediatrics?

• Was there no organization committed to

protect the rights of the unborn in the United

States in 1973?

“WE

DID NOT

SAY ANYTHING!”John Zwicky, PhD

AAP Founding Archivist (1994-2009)

Pediatric History Center

John Zwicky, Ph.D., AAP

The founding archivist of the AAP Pediatric History Center

Died of cancer March 10, 2009. He was 62. AAP archivist since 1994, John was well-known to AAP staff and Fellows during his tenure, a familiar sight in his blue lab coat in the Bakwin Library. Active in local and national archival organizations, John held leadership positions in the Society of American Archivists Science, Technology & Healthcare Roundtable and the Chicago Area Medical Archivists.

“He was passionate about history and always relished the opportunity to dig deeper into the archives of the Academy or pediatrics.” His work is reflected in the center‟s collection at: www.aap.org/ research/ history.htm.

As stated, the 1973 Court

asserted:

“The unborn have never

been recognized in the law as

persons in the whole sense.”

And the 1973 Court‟s decision states:

“We need not resolve the difficult

question of when life begins. When those

trained in the respective disciplines of

medicine, philosophy, and theology are

unable to arrive at any consensus, the

judiciary, at this point in the development

of man's knowledge, is not in a position to

speculate as to the answer. [410 U.S.

113, 160]”

Did the Court not consider there

was a medical organization with

specific interest for the rights of

all children, including the

unborn?

The American Academy of Pediatrics was foundedon June 24, 1930 by 35 pediatricians who met inDetroit at Harper Hospital in response to the needfor an independent pediatric forum to addresschildren‟s needs.

The Academy has always had as its primary purpose“The attainment by all children of the Americas oftheir full potential for physical, emotional andsocial health.”

“The Academy did not want to be anotherscientific society, but an advocacy group.”

Did the Court not realize the AAP had a Policy on the unborn?

AGE LIMITS OF PEDIATRICS

... The purview of pediatrics includes thegrowth, development, and health of the child andtherefore begins in the period prior to birth whenconception is apparent.

COUNCIL ON CHILD HEALTH

PEDIATRICS, Vol. 49, No.3, March 1972

Recall the Court‟s stated task:

“Our task, of course, is to resolve the issue by

constitutional measurement, free of emotion

and of predilection. We seek earnestly to do

this,and, because we do, we [410 U.S.113, 117] have inquired into, and in this

opinion place some emphasisupon, medical and medical-legalhistoryand what that history reveals about

man's attitudes toward the abortion procedureover the centuries.”

The argument could be made the purview of

the unborn lies in the realm of obstetricians and

not pediatricians.

This concern was addressed in 1970 by the

American Academy of Pediatrics.

The letter that follows reflects the response of

obstetricians to the question.

Pediatric History Center

Pediatric History Center

Having obtained support of the

American College of Obstetricians and

Gynecologists, the American Academy

of Pediatrics, published on December

of 1971 its position on the unborn.

Pediatric History Center

AAP – the established leader and authority…of health care to

children (1981)

Chief Justice Burger:

What right, if

any, does the

unborn fetus have?

AAP 1981

“Preferred Images of the Future”

Shouldn‟t the Court have asked the AAP for its position?

Should the AAP not have spoken out about the “rights

of the child” including to conception?

Innocenti: the unwanted children

http://www.guttmacher.org/pubs/2008/09/23/TrendsWomenAbortions-wTables.pdf

US Abortion annual rates

1974: 898,570 1990: 1,610,000 2004: 1,222,100

Conclusions:• The stated American College of Obstetricians and

Gynecologists support for Roe v Wade was apparently rushed and not necessarily representative of its membership opinion.

• Either the Court failed to discover available information from the American Academy of Pediatrics or the Academy did not speak out/did not advocate for the unborn it claims to have purview over.

• The American College of Obstetricians and Gynecologists should have spoken out about the American Academy of Pediatrics joint responsibility for the fetus, to which it had agreed upon in 1970.

• Courts should only rule on ending life when no other recourse remains in order to protect other human life.

• Courts cannot justly or morally grant the “choice” to end innocent life.

Professor David W. Louisell

was right.

Report and Recommendations Research on the Fetus

The National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research

1975U.S. Department of Health, Education, and Welfare

DHEW Publication No. (OS) 76-127

DISSENTING STATEMENT OF

COMMISSIONER DAVID W. LOUISELL

“the harsh and pervasive reality that American society is itself at risk--the risk of losing its dedication "to the proposition that all men are created equal." We may have to learn once again that when the bell tolls for the lost rights of any human being, even the politically weakest, it tolls for all.”

David W. Louisell

Elizabeth Josselyn Boalt Professor of Law

University of California, Berkeley

Baring Gould

The Seven Last Words

1890

“There is nothing more disgraceful, there is no

greater evidence of a demoralised heart, than to

look upon suffering without sympathy and with

mockery. It gives proof of the deadening of the

humanity in man if he can see a fellow-creature

endure agony without emotion.”

Chapter 1, page 5.

“Woman‟s Choice”

She might choose not to get pregnant.

Or she might choose to complete the pregnancy and keep the baby.

Or she might make the choice to adopt the baby to couple unable to conceive.

She should not have the “choice” to end the life of her innocent unborn child, on the basis of

being unwanted.

“How can one morally accept laws that

permit the killing of a human being not

yet born, but already alive in the

mother‟s womb?”

Blessed John Paul II

The outcome

is 2 victims -

The Aborted Child

His Mother

Roe v. WadeThe Justices asked the question:

Has anyone in the Medical field

defined when life begins?

YES!

The American Academy of

Pediatrics did in December 1971

A

h

o

u

s

e

The Court also asked if it would ever be right to

take the life of the unborn, at any stage of

gestation, if it were granted personhood.

The moral, ethical response is:

“Operations, treatments, and medications thathave as their direct purpose the cure of aproportionately serious pathological condition ofa pregnant woman are permitted when theycannot be safely postponed until the unbornchild is viable, even if they will result in thedeath of the unborn child.”Ethical and Religious Directives for Catholic Health Care Services.

Number 47. 2009 edition.

“The end result of this is tragic: not only is

the fact of the destruction of so many

human lives still to be born or in their final

stage extremely grave and disturbing, but no

less grave and disturbing is the fact that

conscience itself, darkened as it were by

such widespread conditioning, is finding it

increasingly difficult to distinguish between

good and evil in what concerns the basic

value of human life.”

Excerpt from Evangelium Vitae by Blessed Pope John Paul II, 1995

As a pediatrician, I am making a plea to

Honorable John G Roberts,

Chief Justice of the United States and to

the Court:

When an inmate in prison is found to have been

incarcerated based on wrongful evidence, he is

granted his due freedom.

Based on presented evidence, the unborn

child‟s right to be born should be granted

protection under the 14th Amendment.