The fetus as person: Possible legal consequences of the Hogan-helms amendment. (Comment and Controversy).

Neither the United States nor any state shall deprive any human being, from the moment of conception, of life without due process of law; nor deny to any human being, from the moment of conception, within its jurisdiction, the equal protections of the laws. From proposed amendment to the U.S. Constitution, introduced in the House by Representative Lawrence J. Hogan (R-Md.) (H.J. Res. 261), and in the Senate by Senator Jesse A. Helms (R-N.C.) (S.J. Res, 130).

The avowed purpose of the Hogan-Helms amendment is to reverse the decisions of the U.S. Supreme Court in the 1973 Texas and Georgia abortion cases, and to make all abortions illegal-apparently, even those performed to save the life of the pregnant woman. Thus, the proposed amendment, on its face, is much more restrictive than any of the state antiabortion statutes which existed before the decisions. Beyond this, the definition of the fetus as a "human being" or person, would overturn the holding of the Supreme Court in the Texas and Georgia cases that the unborn, whether in the fetus, embryo, blastocyst, or zygote stage, is not a "person" entitled to the constitutional protections of due process and equal protection of the laws. The legal consequences of such an amendment would go far beyond abortion, and create confusion, if not chaos, in numerous areas of well-established law.

Considering the sweeping effects such an amendment is likely to have, it is surprising that, by March 1, 1974, 62 representatives had signed petitions calling for discharge of the Amendment from Committee, and an immediate floor vote.

It seems beyond question that the proposed amendment would not, in fact, abolish or prevent induced abortions. It has been estimated, for example, that 70 percent of the legal abortions performed on New York City residents following passage of a liberalized law in 1970 -- about 50,000 abortions each year -- replaced abortions previously obtained clandestinely and illegally under the old restrictive laws. (*) The amendment would, however, make abortion once again the dangerous, discriminatory, degrading and expensive procedure it used to be, and abortions would once again be performed without medical supervision in the second and third trimesters of pregnancy, and without established government guidelines.

And what would be the cost involved in obtaining this unfortunate result?

First of all, our constitutional law would be thrown into disarray. Court interpretations could be required for every point in the Constitution which refers to "persons to determine whether, in each context, "persons" includes the unborn "from the moment of conception." (The word "conception" is itself ambiguous, sometimes referring to the moment of fertilization, sometimes to the time of implantation, about five days later. Neither point is ascertainable with pregnancy tests currently available.) Could, for example, abortion be permitted to save the life of the pregnant woman without violation of the fights of the unborn? As a person, would every fetus (if not every fertilized ovum) have to be counted in the census, as called for by the Constitution? Aside from the inherent difficulty in ascertaining the number of fetuses that might be in utero at any particular time, how would a census which included the unborn affect apportionment of legislative districts ( under the one man-one vote' principle)? What imp act would it have on revenue sharing or formula grants which are based on population?

In the realm of criminal law, would anyone committing any crime involving a pregnant woman (theft, for example, or criminal assault) be guilty, ipso facto, of murder under the 'felony-murder' rule, which classifies as murder the killing of a person in the course of committing a lesser crime? (Abortion has not, in the history of English or U.S. law, been considered the equivalent of murder.) Indeed, might not anyone charged with carelessness or recklessness which resulted in a miscarriage be found guilty at least of manslaughter?