April 3, 1975
WASHINGTON, D.C. – Robert M. Byrn, a specialist on criminal law and a professor at the Fordham University Law School, presented to the Bayh Subcommittee March 10th hearings what almost amounted to a small encyclopedia on the question of the legal consequences of a Federal abortion prohibition. With a wealth of argumentation drawn from State and Federal court decisions, Byrn attacked the feasibility of a States’ rights amendment, then zeroed in on the consequences of a mandatory amendment of the type proposed by Buckley, Helms, or the National Right to Life Committee. The fundamental question at issue was this:
“Will a human life amendment,
a) framed in terms of the Fifth and Fourteenth amendments and
b) restricted to the right to life, cause ‘chaos’ in constitutional, property, tort, and social welfare law?”
After defining this “restriction to the right to live,” Byrn concluded that the unborn’s tort and property rights will neither be diminished nor necessarily expanded, and that no disruption of constitutional law (e.g., the ten-year census or legislative reapportionment) will occur. Thereupon, again with a wealth of precedent to justify his answers, Byrn considered the following questions among others. If a mandatory human life amendment is enacted:
- will not all illegal abortions become murder in the first degree?
- will not every culpable killing of an unborn child by a third person necessarily result in a conviction of that person of some degree of homicide?
- will a human life amendment have the effect of enacting into law sectarian religious dogma?
- will an exception limited to maternal life-saving abortions cheapen human life?
- would other exceptions be consistent with the right to life?
- will the amendment mandate the incrimination of the illegally aborted woman?
- will the amendment mandate the imposition of tort and criminal liability upon the woman for an inadvertent miscarriage?
- will a woman be required to have a monthly pregnancy test to determine whether or not an unborn child is in existence?
- will a woman be subjected to an injunction by a court of equity to follow some sort of routine during pregnancy?
- is a human life amendment just another prohibition amendment?
Byrn answered each of these questions in the negative. Portions of his arguments will be printed in forthcoming issues.
Sen. Bayh interrupted the Fordham professor at several points, especially when his testimony concerned criminal penalties for abortion. From the first day of these hearings, a year ago, Bayh has consistently fashioned this argument into a club with which to beat pro-life witnesses over the head: if an aborted fetus was really a human being, then why shouldn’t the mother and- or the doctor get the electric chair? No answer has seemed to satisfy the Indiana Democrat although he and his subcommittee counsel, William Heckman, are hardly ignorant of the legal precedents as well as the moral and pragmatic grounds for punishing abortion more leniently, in most cases, than other instances of homicide. When he tried this rhetorical shtik on Professor Byrn, however, Bayh was slapped down very firmly Byrn rejected Bayh’s fundamental premise, namely, that the penalties for homicide reflect the value of the life taken. If that were the case, Byrn argued, all penalties for first and second- degree murder and manslaughter would have to be the same regardless of the circumstances of the individual crime. Rather, the penalty reflects the circumstances of the guilty party. Bayh became emotionally involved as he saw himself being refuted; his voice rose, and he lashed out at the “hypocrisy” of right-to-life spokesmen. Byrn shot back with an attack on the “ignorance” of the senator as to the basic purpose of the penal code.
This little explosion proved to be the headline-catcher of the morning, but the real news was in fact elsewhere. Harriet Pilpel, for many years the chief attorney for Planned Parenthood, Inc., succeeded Byrn at the witness table. It was she whose published articles had created many of the legal specters Byrn had just tried to refute. She was now in a position to refute the refutation. What did she say?
Well, Mrs. Pilpel produced a case so lame that even Sen. Bayh appeared to regard it more as a tour-de-force than as a serious argument. First, Pilpel claimed that there simply is no such thing as the right to life:
“Nowhere in our Constitution or in any amendment adopted to date is there any reference to, or guarantee of a ‘right to life’ for anyone. Some affirmative rights are guaranteed by the Constitution, e.g., a right to assemble peaceably, a right to keep and bear arms, a right to a speedy and public trial by jury and to counsel in criminal prosecutions, and a right to vote.
But there is no guaranteed ‘right to life’ for anyone born or unborn.”
Thereupon, Pilpel proceeded to impute to the human life amendments a new definition of the right to life — a definition created in fact by Mrs. Pilpel:
“It (the right to life) would mean that all of us would be assured at the very least of that minimun of food, clothing, shelter, and medical care which is necessary to sustain the continued physical existence of all of us. Such a guaranteed Tight to life’ would mean that there would be a constitutional obligation on the part of government to assure to each individual access to these lifegiving essentials. None of us has such a constitutional right now.”
In the rest of her testimony it became fairly clear that all of the “chaotic” legal consequences imagined by Mrs. Pilpel flowed directly from this arbitrary and unheard-of definition of the right to life. Most observers felt that if this was the best possible reply to Professor Byrn’s case, then that case was secure.