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Preface This treatise is designed to be a definitive work on the legal status of abortion in America based on the common law it adopted from England and the necessary relationship it bears to the unalienable right to life of a human being. To achieve this ambitious goal a comprehensive research effort was undertaken including a diligent study of the development of the common law governing abortion from the legal, historical, ecclesiastical, Biblical, religious, biological (and medical), political, and cultural standpoints and the bearing each had in the formulation of the precedents established. Utilizing the information gathered from each of those sources, the actual common law precedents as they were originally established and then perpetuated are documented, supplemented by comments to explain significant relationships, clarify points, or to emphasize some aspect of the law. Only prime sources of enactments, decrees, or declarations were held to be acceptable. This requirement eliminated bias based on private interpretation. The earliest laws required translation of Latin from the original Anglo-Saxon language. Once the earliest common law rulings on abortion were identified, succeeding rulings down through the ages were catalogued and recorded. This chain of common law rulings governing abortion were traced from their inception, at the earliest days of the Anglo-Saxon society, up to the present time, and it was found that abortion under the common law has been a crime, without break in continuity, up to the most recent times, although often courts did not fulfill their obligation to adhere to the established law, contributing, in part, to confusion among various legal scholars as to what constituted the binding common law. Their confusion would have been erased had they simply gone back to the original common law and traced its history, century by century. Recent legal scholars have universally been deceived by marking the beginning of common law on abortion to the medieval ages when secular courts assumed jurisdiction of those cases, which had previously been handled exclusively by the ecclesiastical courts. The secular courts, however, were bound to follow precisely the precedents already established by the ecclesiastical courts and ancient kings. However, they did modify the punishments to be meted out for the crime of abortion in an attempt to secure more convictions. Recent scholars have interpreted the medieval courts as considering the crime of abortion in a less serious light based on this reduced punishment, whereas, in actuality, it represented a hardening of the position taken by the medieval courts, taking a more serious view of the crime reflected in its attempt to obtain a greater number of convictions for the offense. In 1970, it first came to the attention of the author of initial steps taken to disassemble the abortion laws, learning that Hawaii began allowing “legal” abortions, and that several other states had revised their statutes to decriminalize the act. It did not seem that those deviations from long accepted practices over many centuries would be long lived. The author felt these aberrational views were simply the result of the rebellious and regressive spirit of the “me” generation that infected America in the 1960’s when problems were all to be solved by slogans and clichés, and the right of freedom was interpreted as a license to satisfy every personal desire without restraint. Having been reared in a society and environment in which abortion was viewed as a heinous act, it seemed certain these new rulings would be overturned on appeal to the U. S. Supreme Court where these innovations would come under review by learned and detached legal scholars. Needless to say, in 1973, when the Roe v. Wade decision was issued, legalizing abortion, it came as a profound shock to the author, as he realized this august tribunal had been cowed by the tidal wave of superficial emotionalism then sweeping the country. It did not seem realistic that even that decision would hold for long because it was so contrary to common sense, and the legal and moral condemnations of abortion, which had extended over a period of almost two millennia in the Western world. However, surprisingly, it was not only upheld in follow-on decisions, but permissiveness to commit the act was actually extended, so that it became firmly rooted in the judicial system, and much of our general society seemed to have accommodated their views to coincide with those accepting abortion as an acceptable procedure, supported by what they felt was the weight of legal precedent. Pro-life voices emerged, and their arguments condemning abortion were universally weighty and, seemingly, to a rational mind, sufficient to dispel the myth that abortion was a right under the constitutional guarantees as ruled by the Supreme Court. However, the pro-abortion voices, relying on slogans, and pandering to a society which had become educated and acclimated to accept shallow and unsupportable claims and propaganda in order to excuse its incessant insistence of being able to satisfy its sensual, and even carnal, pleasures without carrying a price tag of self-sacrifice or obligation to another human being, were able to extend their influence to mute the voices of opposition. The pro-life groups propounded very significant arguments in support of their position, but generally these efforts appeared to the author as a patchwork of labors. Some condemned the practice of abortion from a purely religious perspective. Others found their basis for opposition in constitutional law. Others relied on decisions from older legal precedents, e.g., the statements found in Blackstone’s Commentaries. Still others cited medical or biological findings in support of their position. Very distressing were the concessions so often unwittingly made by those condemning abortions, because the stand they would so often concede actually amounted to forfeiture of a position historically in accordance with their own. Too many of the pro-life arguments, it seemed to the author, were simply emotional emanations of justifiable feelings, although not supported from a compelling factual standpoint. Because of the failure of segmented, patchwork, emotional, and often irrelevant arguments to set forth the controlling principles governing abortion, it prompted the author to look further into the matter. It seemed inconceivable to him that the laws unremittingly condemning abortion through almost two millennia, and even, in practice, being condemned in pagan and uncivilized countries dating back to the pre-Christian era could be suddenly overturned on some newly discovered reason, especially since legal precedent has to control in the American judicial system, and advances in the biological sciences actually added support to the pro-life position. Therefore, about twenty years ago, the author undertook an all-encompassing investigation covering all pertinent facts bearing on the subject as earlier discussed. The review has included search into many sources beyond those cited herein. There was never found anything in the excluded reference works that could successfully contradict or impugn the credibility of the established common law materials on abortion that were selected for inclusion in this treatise. Not surprisingly, the selected referenced works accurately and indisputably show that the actual common law governing abortion in America is permanently established as a crime, Roe v. Wade notwithstanding. The treatise is divided into Sections I, II, and III. Section I is set out simply to define human life, human being, and personhood as a separate topic. Being principally based on medical facts it has a stand-alone value, but, once developed, the information shows a magnificent compatibility with the facts pertinent to the common law governing abortion, while no less defining the sacredness of human life. Biblical sources are quoted and analyzed to treat of personhood at the theological and spiritual levels as apart from a purely legal standpoint. It seemed well to give some attention to this aspect of the subject, so as to show how these depictions tied into the essential controlling principles which formed the underpinnings on which America was founded, while always remembering, the common law on abortion was deeply rooted in religious, spiritual, and Biblical values. It seemed to the author this would have a value in and of itself in bringing into perspective, and gaining an understanding of, the sacredness of human life apart from the purely common law history. Section II is devoted to tracing the unbroken chain of precedents of common law governing abortion dating back to the earliest recorded history on the subject, how this law and precedents were adopted at the time of the foundation of our country, and continue in force today, Roe v. Wade, notwithstanding. Commentaries are used generously by the author to highlight points. Necessarily, there is an overlap of discussion covered in the commentaries in Sections I, II, and III because the information in any given Section often has application in the material covered in the other Sections. Repetition of statements or points is made throughout the text. This exercise has been adopted to assist in maintaining continuity of thought when dealing with a subject without having to simultaneously or repetitively sort through pages of the document as would be necessary if repeated references had to be continuously tracked. At times, the repetitiveness is used to emphasize a point. What may seemingly be annoying repetitiveness of corrective comments in material covered is necessary because of the repeated restating of errors by the U. S. Supreme Court and authors of the articles being analyzed. Finally, a summarization of the material covered is made, and conclusions together with recommendations are contributed at the conclusion of Section II, which are compatible with the controlling common laws governing abortion. Section III consists of an analysis of Roe v. Wade, and demonstrates the invalidity of the decision based on the legal arguments made by the U. S. Supreme Court. Conclusions and recommendations are then added which harmonize with the existing common law governing abortion. It is repeatedly emphasized that from the earliest times in the development of the common law, and reaffirmed on many occasions (e.g., Magna Charta, Coke’s Institutes, Blackstone’s Commentaries, etc.), explicit rulings have repeatedly been handed down guaranteeing the perpetual force of the established common law, which necessarily finds abortion to be a crime at any stage of gestation, that birth control is homicide, and that the father has rights attached to the conceptus. The irrelevancy of Privacy, invented as a “reason” for finding federal jurisdiction, is shown. Proof is set out demonstrating conclusively that life and personhood both exist in the conceptus from the moment of conception (or fertilization). Throughout this treatise the term, conceptus, is used and is meant to cover all periods of gestation from fertilization through the final stage of pregnancy. This option has been elected to simplify the discussion of the subject matter, and, if a precise time, in a given instance, is intended to be identified by the term, the specific time period can be appreciated in the context of the discussion surrounding the topic at hand. Harold D. Kletschka, M. D. Minneapolis, Minnesota February 10, 2003 |
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