NER Washington forum; Abortion, part 1

One expert who has described abortion as just another surgical operation carboplatin the scientists and other scientists at this conference the last two days has suggested that legalized abortion in the human embryo is so profound an insult to the reverence that its adoption would lead to future demands for the creation of a national institute. Dubois you just heard was that of Mrs. Eunice Kennedy Shriver executive vice president of the Joseph P. Kennedy Jr. Foundation one of our two featured speakers this week on the n e our Washington forum this week a special report on the recent international conference on abortion held in Washington D.C. under the auspices of the Joseph P. Kennedy Jr. Foundation and the Harvard Divinity School. I'm in our public affairs director Bill Green-Wood. This week we will spotlight the speech of Mrs. Kennedy which set the pace for this conference. Plus a report by Dean Bayless Manning of the Stanford University School of Law a

report that condenses a week long discussion of legal aspects of legalized abortion. Before hearing from Dean manning the remarks of Mrs. Eunice Shriver the Kennedy Foundation. It was the last 20 years has devoted almost all of its resources to the study of Child Health and Human Development in the hopes of preventing or ameliorating mental retardation. To achieve these goals we have established research centers at John Hopkins Stanford Wisconsin Chicago and at Massachusetts General Hospital. Important discoveries have been made in recent years in these centers. It is now clear that man will become the first time the first species to control his own evolution as the scientists have moved into the study of human conception human fertility and human genetics and mental retardation. They have begun to explore how best to control the Manage man's own nature. Some scientists have advocated

sterilization at the onset. Others have proposed abortion as a remedy to Mongolia's and other detax included killing mental retardation caused by viruses. Those interested in the prevention of mental retardation Bassel. The question has been developed. Is abortion a justified method of inducing mental retardation in our society. One expert has described abortion as just another surgical operation carboplatin the appendicitis and other scientists at this conference. The last two days suggested that legalized abortion of the human embryo is so profound and himself to the reverence for life that its adoption would lead to future demands for the creation of a National Institute of staff and institute where X-Tex of no race creed or color. What scientifically determine who has the light right. You may as well ask how the adoption of evolution yesterday's conference far beyond the scope of medicine law. We need the wisdom the

means of humanism and the compassion of the world's most awful and farsighted men and women. And that is why we have invited experts to all disciplines to this international conference. Historically the theologians and the philosophers in the Marlice a man of wisdom and a source of public policy at the University of Paris in the 13th century theology was known as the queen of the sciences. Philosophy was second in importance today. Theology is not even recognized as a science and few of any meetings of scientists would include students of theology or philosophy justice ethics of politics. In olden days names men were by titles extolling neijing with these declines. Eric the wise elder to jest. Richard the Lionhearted. Charles the Bold Charles the good all adjectives descriptive of personal human qualities. But today we the most awesome. Eisenhower General Johnson the politician backed him out of the committee with all nouns skipped and not a person of His Word.

This change in popular terminology has its counterpart in intellectual circles. Chemists are experts in the study of elements. Biologists are experts in the study of living matter. A place where the experts in the study of man psychiatrist psychologist. Hardly. But even they make less and less pretence of dealing with the whole. And indeed they suffer from the same fragmentation as the physical sciences. It is not surprising that some of the most vocal of our top contemporary scientists are asking ethical questions about their science. For example is it ethically justifiable to create a creature of those organs will be drawn from animals and humans is ethically permissible to splice human genetic tissue together with animal tissue and that's created new organisms which are fundamentally modify the nature of the human being as we know them today. And transplantation becomes surgically even Team members of society should we see these organs young those HARMSEN The elderly or the mentally retarded. Would we follow the traditional standard. Women and Children First. This problem already

exists. Seattle hospital has contended that this question and decided to Mars should kidneys should be given a secret committee representing scientists and the public was empower them to choose recipients. If we need the answers to these and similar questions only to scientists if we seek answers only on the basis of what is most efficient and least expensive someone lacking in our judgment will surely advocate euthanasia as a part of the solution to the population problem. Wouldn't it be more of the same for example and less expensive to do away with people over 65 who are ill and tired of living. Another big one to select all the people who are going to be committed to have babies. The basis genetic prognosis is a whole new profession to be developed like race or unostentatious to predict exactly which parents will produce the best progeny for success. Does this sound like a bad dream. Cheap science fiction. Most assuredly it is not. It is a view of the world to come these questions and hundreds of others derive from our mental retardation

they explain our participation in this international conference but they also mean that we as a nation we just were once the strongest Benjamin and jettisoned to go fight just for religious freedom in the early days of our country. All they knew all they were willing to discuss the question what was man and wiles of these men men knew that no one to lecture with discipline can know all the truth about man what is best for him what he wanted to do. That is why the Harvard Divinity School and our foundation have fought together theologians the philosophers the stewards of ethics and humanities and along with them the scientists about material physical side of the universe to discuss the moral values as well as the scientific questions and the expectation of what not to do this movie. All of us to see if half truths misinformation or even worse make it for the power of biological Plauen society on the shodan is written someday after mastering the winds and the waves of tides of groundsel we shall

harness the dark love a man to the second time in history. The man will discover life taken as his driver. And now we come to the legal discussions that were held during this two day conference at the present a some of our discussions here is indeed the as of the Stanford University School of Law. I think there is another problem about the lawyers lawyers clubs about lawyers. It is not just that there was no consensus sought to be arrived on the substantive matters. There is a deeper question I suppose as to the extent to which you really have any interest in listening to lawyers anyhow. You can at least one argument

and I will not for the moment seek to pass on it. What it is that the theologians have to say is relevant. You can run an argument that what the doctors have to say is relevant. You can read an argument that what the social scientists have to say as well but it is at least an independent question which I think you're entitled to. Whether the lawyer really has any contribution to make to this sort of a discussion. Oh yes he will be the engineer at the end of the line. He will be the one who will be involved in the actual operational administration of whatever it is it is that has decided to be done. And in that sense perhaps he has some standing as a professional consultant. But the anterior question in the prior question. The moral and

political problem that rivals those who have taken up this problem seriously are those matters on which the lawyer really just professional capacity has anything very much to contribute. I would begin there with the position of very real humility. Modest nonetheless. The law Pownall define number of things to talk about. Again I don't have much problem there and indeed it turned out that a good bit of what they talked about was very interesting. I should like if I may. To ask you to share with me for a few moments some discussion not about abortion directly not about abortion laws but about the legal process and then it would be my hope that if I'm successful

that I will eventually be able to leave. What I'm talking about go around to the topic of our conference. I promise at least some of you gone along. I would like to also first of all the proposition that the criminal law is not identical with a moral code as point as you've noticed been made two or three times. I would like to make it again on this score. It is not infrequently the case that there are perfectly good reasons by which we might all agree to the immoral act we would for some reason or another two is not too bad in statutory criminal form. What are some of those reasons it might be wholly unenforceable. It might bear with the terrible costs of the invasion of people's privacy. It

might lead to enormous costs in the total including both manpower and funds in the administration of criminal justice in such a way as to deflect those forces from other areas in which we consider the need to be greater. And there are others. The problem of what you put in the statute is just not the problem of what you think is right and wrong what you think is right and wrong is highly relevant and much to the way. But it does not determine the question to take this general statement and to put it specifically in the context of our issue and our topic sort of the precise question is from the lawyer's standpoint that when a physician has helped or participated in an

abortion let's put the case specifically of the mother expectant mother I may be already a Monday being willing and indeed beseeching that this be done and the circumstances of the operation are appropriately anti-septic and it goes on the precise question is whether the police should arrive and putting him in jail. That's when you finally get down to the end of it. That's the way it is now. Second general sort of proposition about the legal process if I may. The law and especially in the criminal law gets itself in very serious trouble whenever it grows significantly out of Cumberland's with something like the basic central attitudinal positions and norms of the

society which it is seeking to regulate. Maybe it wanted to do that. That isn't my point. I simply say that's what happens where by and large there is a central core of support in your opinion of the public of a body in criminal law. You find that you can enforce it. And we do a pretty good job of enforcing it. When you sign this is probably a sufficiently empty reference that it's probably safe and not libelous when you find that the entire community is operating this still the revenuers have a very difficult time a very difficult time. We have had and we still have in this country the abiding recurrent chronic I would say

instinct to make things criminal the ostensive to make them the subject of our criminal codes whenever we decide that we don't like them. We do it over and over and over again. Our first and immediate response to a problem is let's pass a law against it and say that anybody who does not is going to go to jail. On our statute books are sold. We seldom do it with quite the assault and quite the massive impact that we saw it to do it in the instance of prohibition. But we do do it I think there may be some others in the room here. Besides me who can recall that the prohibition experiment didn't work out very well despite the constitutional amendment. The development of a live statutory structure is the creation of an

entirely different administrative engine. And there's a fairly substantial effort at least on cards by parts of the general enforcement authorities. And the reason it didn't work out is the point I'm now starting to make. It was perfectly clear that the public just didn't believe that. You've got a fundamental problem here of maintaining some kind of a central congruence. And this is of course what has led a number of people at this conference. Some of them lawyers and some of them close to me with great force and eloquence that where as in this very area. There exists a substantial and major division of fundamental opinion among informed and serious reputable large segments of the community that that is no place for the

criminal law to be at work until there is some kind of a crystallization of viewpoint in that society. You will get Florida you'll get exactly what you got in the case of the abortion laws as they are administered at cousins and as they are written and present according to this do you. Think it's worthwhile to look again and to recall what the facts are about the abortion laws and their administration as a whole. You've heard some of the figures. Whatever the number of illegal abortions whether it's somewhere closer to the 200000 low estimate or somewhere closer to the million to estimate. Every one of those is a felony crime taking place throughout society

and in some areas particularly and outside of the legal order the total number of quote legal abortions however small as it is has within another subcategory. And this is not a pleasant statement to make. That's not the kind that I can document. I have a very clear impression and when you say make is second only as a confession I have a very clear impression that we're in the category of the English is that are legal in quotation is that there has been a great deal of pulling and tugging and straining on the part of the professional people the doctors and the psychiatrists who ever involved in it because of their compassion for the individual involved. I merely say I mean to say on this point only those that were in that category of those which the statistics show as being legal there is still a

strain there is still an edge a blur a problem of uncertainty and of risk for the people who are involved in it. It cannot be so. I think that a fundamental respect for the rule of law and a fundamental respect for the administration of justice can be significantly furthered in such a situation. Let me be very clear as to what my point has been. I am not arguing that the statute should be repealed. I am not arguing anything about what should be done with them. I am pointing out only that among other things that must be weighed. As you are considering where you come out on that matter what of the problems. I'm one of the things you have to worry about is the general integrity of the legal order itself. And one of the things you have to think about inevitably is some kind

of a theory some kind of an attitude toward the question I have raised with you. Namely the relationship between the criminal law and the criminal sanction on the one hand and your own moral position on the other because they are not necessarily identical. I would like now if I may to shift gears for a moment and just take a few passing references to some other legal aspects of the topic. The ally called the American Law Institute proposal that has been made maintains the prohibition against abortions and then states three exceptions. The exceptions are in short hand. Abortion may be permissible where the health of the mother is endangered. Abortion any permissible where the woman is pregnant as a result

of rape or incest who has intercourse. And third there may be an abortion whether it is in effect a likelihood or a strong likelihood. And there was the birth of a serious injury from the heart. I have no basis or standing to recommend to you or to stand for or against that particular effort. It is a nuisance or is it. Do I have anything to report to you from the panel in that regard. I would point out to you that the aggregate of the of the cases and so far as we can tell that these three exceptions would reach is. That is to say of the total number of abortions that we know about at the aggregate that would be reached by these exceptions is probably not over 15 percent. The statute

probably leaves untouched the question of the other 80 or 85 percent of abortions that I saw that are had and that are as you know it's been pointed out the case typically of the married women with children already. There's nothing in that statute about that. There are some other fairly technical legal questions that will emerge. Eventually in one form or another whatever you do about the statutes one question that has been raised by one member of the panel in particular has to do with what if any procedural rights should be accorded to the fetus. Is there a constitutional problem of some kind that would require some special treatment in accordance with a recognition that there might

be such a legal claim. Whatever kind of a statutory arrangement you have. You will also have some fairly serious procedural problems. Who signs what kinds of certificates if for example your voice is to be permitted for rape. I you know there was a rape. You have to carry out on trial over here first and the man before you go ahead with the abortion. How much evidence is it just enough is the say so of the young lady involved sufficient that kind of problem. Lawyers are good at worrying about it but they're sort of farther down the line as you can readily see. I would close I think with this observation. It is within the range isn't that doable for the law to take any position on this issue ranging from a abortion is required in circumstances ABC some

sort of down to all abortions are prohibited. I'm very happy to say that unlike what was said to be true in Nazi Germany the observation was made that everything it is not so bad and is compulsory. I'm pleased to say that American society doesn't operate that way. We come into the problem of legal regulation from the other door. The general proposition is certainly in the criminal law that you're free to do what you want to do. Until and unless the law imposes upon it. So there's that right. You can either require a court system and so far as I'm aware no one on this panel or any of these panels has so much as suggested support for that position or you can go to the other

end and prohibit all abortions. And so far as I know no one on this panel has suggested that position. And there you are faced analytically with the necessity of coming up somewhere between those and within that subcategory you would be socially required to the process of legislation to decide to leave it entirely unregulated by the criminal law or to regulate it in some way. And there isn't any escape from that position as I see it here I suspect I may find that I part company to a degree with some statements that have been made by some of the other panel commentators. Perhaps not. I would stress to you at the same time that I offered certainly insincerely my own humility as a lawyer about what to do about this

problem. I would stress to you that as Dr. Kaysing pointed out the social scientists are not going to be able to answer for you either their predictions capacity to predict social reaction is very important and it weighs a great deal. But it won't solve the problem. And the doctors we know a great deal more about genetics and we know a great deal more about the human chemistry than we ever dreamed of past years. And we will learn much more in the next generation. But he won't provide you the answers it's terribly wrong but it won't give you an answer except through the social and political process of legislation as you know the public way and balance to the community the waits to be put upon.

On the one hand a reverence for life as reflected in the unborn child and in the other the reverence for life that is shown in your compassion for the mother your sense of concern about the welfare of the family and as a unit and your interest in the question as to whether the fetus might have a claim not only to be born but to be born into a wanted and nourishing. And I think that was Stanford University's School of Law Dean Bailey was manning speaking on the legal applications toward legalized abortion. You also heard comments from Mrs. Eunice Kennedy Shriver executive vice president of the Joseph P. Kennedy Jr. Foundation. These comments were the product of a recent international conference on abortion involving medical social and political scientists from a number of nations. Next week the NPR Washington forum will

present the second of this two part some atrium of the investigation of that group into the abortion question. You will hear next week Dr. Carl Kasen director of the Institute for Advanced Study in Princeton New Jersey who talks about the social science application of legalizing abortion. And you will hear from Dr. Andre Ligers a medical doctor at the Georgetown University School of Medicine who will discuss medical applications in this problem. This program was produced for national educational radio by WFMU FM American University Radio in Washington D.C. I'm NPR public affairs director Bill Green-Wood inviting you to listen again next week for another edition of the in our Washington forum a weekly program concerned with the significant issues before us as a nation. This is the national educational radio network