A pediatrician’s response

toRoe 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. WadeDocument 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 was both a taboo topic and rare in reality. It was never considered to be a political issue. Even the nineteenth-century feminists were unanimous in denouncing abortion as ‘child murder’ and demanding increasingly strong measures against it.”

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

U.S. Supreme CourtROE 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 AmendmentSection 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction 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, from Latin persona actor's mask, character in a play, person, probably from Etruscan phersu mask, from Greek prosōpa, plural of prosōpon face, 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. Scott ruled 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 law professor Cyril Means Jr., then the general counsel of the National Association for the Reform of Abortion Laws (now NARAL Pro-Choice America). Means argued that abortion only became a crime because moving abortion from midwives to physicians had made the procedure highly dangerous. Curiously, Means did not present evidence regarding the methods midwives were using at the time, and the only evidence he presented regarding the dangerousness of abortions performed by physicians was evidence regarding the dangerousness of surgery generally in the early nineteenth century. The Court relied uncritically on Means's work, citing him seven times and no other historian 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 MANNER I 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 founded on June 24, 1930 by 35 pediatricians who met in Detroit at Harper Hospital in response to the need for an independent pediatric forum to address children’s needs.

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

“The Academy did not want to be another scientific 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 the growth, development, and health of the child and therefore begins in the period prior to birth when conception 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 emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over 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 1975

 U.S. Department of Health, Education, and WelfareDHEW Publication No. (OS) 76-127

DISSENTING STATEMENT OFCOMMISSIONER 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 GouldThe 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

ChildHis 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 house divided against itself cannot stand. Abraham Lincoln

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 that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted when they cannot be safely postponed until the unborn child is viable, even if they will result in the death 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.

Mommy, I Love You