McNulty, James V.

English

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The Linacre QuarterlyVolume 33 | Number 4 Article 1311-1-1966The Therapeutic Abortion Law: A Fight for a LifeJames V. McNultyFollow this and additional works at: http://epublications.marquette.edu/lnqPart of the Ethics and Political Philosophy Commons, and the Medicine and Health SciencesCommonsRecommended CitationMcNulty, James V. (1966) "The Therapeutic Abortion Law: A Fight for a Life," The Linacre Quarterly: Vol. 33 : No. 4 , Article 13.Available at: http://epublications.marquette.edu/lnq/vol33/iss4/13Tht Therapeutic Abortion Law A Fight For A Life JAMES v. McNuLTY, M.D. h h a be the person perfo ling . the Over the past ten years t roug - m Y . h t'fied · writing . d the world abortion, ave cer I out this country an l l d d their belief in the justifyi1 circum­. there has been a ca cu at� an nd have filed s1. certifi­deliberate campaign to revise t�e stancesri�r to the aborti in the prese1_1t laws regarding therapeutic f:�:s�d hospital where it as to be abortion. . . performed, or in such o, �r plac e The present statutes in Cahforni.a as may be designated by l "· and in most other states permit therapeutic abortion only when the life of the mother is in danger. These laws have existed for more than 100 years without change. Most of us agree that the stat.utesshould be reviewed, perhaps revised, if this is the will of the majori:Y· However, the present proposals, in­cluding those of the Model Penal Code from New York and California are unsound proposals because of the enormous difficulty in interpre­tation by the courts and enforce­ment by those agencies that must carry out the laws. The Model Penal Code recites the case for Justifiable Abortion .. A li­censed physician is jus�ified m ter­minating a pregnancy if: (a) he believes it is a substantial risk that continuance of the pregna:1cy would gravely impair the physical or mental health of the mot�er or that the child would be born with grave physical or mental defect, or the pregnancy re�ulted from rape by force or its equivalent as defined in Section 207.41 or from incest as defined in Section 207 .3; and (b) two physicians, one Qf whom 340 Justification of abortior. firmative defense.2 The proposals are but an ex· the above. Let us look at the term Certainly it is not defirn accepted the common would mean i.e.; to show be just, reasonable,. and In simple terms this we that the Government t Agencies will define right for the citizens. s an af-1lifornia 1sion of justify." . If we ,age, it n act to ghteous. d me an d State d wrong Another term not O 'med . !s " 1 " Thi' s term we ld ehc1t grave y. fi · an extremely wide range ,f de ni· tion by medical personn' . to �ahy f h er ,1 wh1c 1 nothing o t e mann . the courts would _interpre' it. . h I h" es-The term "mental t , t . 1 capes definition in standar, l med�c�s dictionaries. English an Enghsl 1 h ''A r e a· defines mental hea t as h tively enduring state whc:-ever t � 11 d . d l :.1s a zes person is we a 1uste ' _.1_ self· for living and is atta1.nm_g It actualization or self-realiuuon. d ot mere is a positive state, _an 11,, absence of mental disorder. LINACRE QUARTERLY It would appear that every indi­vidual practitioner of medicine will be left to define "mental health"for himself. Therapeutic abortion is now ad�vocated for eugenic reasons to pre­vent a child being born with a grave physical or mental defect. Therehave been significant advances made in our knowledge of genetically de­termined disorders, of rubella em­bryopathy, of teratogenic drugs, of the effect of irradiation upon the fetus, and of hemolytic disease of the newborn. In a recent article byR. W. Smithells in Lancet, he points out how difficult it is for the medical man to be certain that a fetus will have a serious disease. Statistics vary so widely .in the literature as to make consistent and accurate pre­diction of deformity impossible. Orto place this more concretely, if inJOO suspect deliveries, we might expect 60-80 babies to manifest ab­normalities ranging from a minorto a major degree and 20-40 babies t? be completely normal, why sac­nfice so many babies in order to be sure that all deformed concep­tuses are destroyed. In an address before the Los Angeles Obstetrical 111d. Gynecological Assembly in195!, Harold Sheehan of England ldvised the audience to permit all '1'gnancies to go to term and then �roy the damaged ones. Only inJhis. way could one reasonably01d the destruction of normal�ceptuses. Neither rape nor incest is a medi­indication for induced abortion. pe could be only a social groundr abortion; i n c est, social a n d -,.genie. Yet the invocation of these MBER, 1966 grounds for abortion would be madethe responsibility of doctors of med­icine, not doctors in the economicor social sciences nor genetics. The danger to medical practitioners in giving them authority to make thisdecision, a1;d thereby responsibility for making it, is obvious and serious.The medical man dealing with a pregnancy allegedly due to rape or incest would face not only the peril of prosecution if he performed the op­eration but also the 'danger of an action for heavy damages whetherhe decided for or against it. The proposed composition of"Therapeutic Abortion Committees" always proves interesting and pro­vocative. The Model ·Penal Codecalls for two physicians on the com­mittee while the California pro­posals call for five physicians. With naivete, the California proposal setsout to prevent collusion by enlarg­ing the number of physicians on the committee. Yet, the California State Legislature recently ordered a lay member to sit with all licensingagencies in an effort to forestallpaternalism, favoritism, and collu­sion. How well this will work, onlytime will tell. The term "licensed hospital" ac­cording to the Health and SafetyCode of California4 means any in­stitution, place, building, or agency which maintains and operates organ­ized facilities for one or more persons for the diagnosis, care and treatment of human illness, including convales­cence and including care during and after pregnancy, or which main ­tains and operates organized facilities for any such purposes, and to which persons may be admitted for over-341 night stay or !onger. "Hospital" includes sanitarium, nursing home, and maternity home. It takes little imagination to vis­ualize a spate of hospitals consisting of one bed or more being built for the sole purpose to specialize in therapeutic abortion. WHEN DOES LIFE BEGIN? The blueprint of a human being is set down when the ovum and sperm unite. As the fertilized ovum grows and develops, this is simply an extension of the blueprint drawn at the moment of conception. By any other name, this is growth. The fertilized egg is either a blob of protoplasm or else it is a human being endowed with all the rights and privileges guaranteed by the Constitution of the United States. Mr. Bielenson, the author of the California Proposals, in a recorded discussion held at Loyola Law School, Los Angeles, California, on October 15, 1965, stated, "I don't have problems with birth control but I have problems with abortion because there is a little something there who if left alone will develop into some kind of human being. There is no question about that." Article VI and Article XIV of the Constitution guarantee an individ­ual the right of counsel and the right of due process of the law. This, I believe, is the very heart of the matter. When one is charged with a capital offense, he must be indicted. An attorney must be pro­vided for any defendant who can­not hire his own. Time is given for the preparation of defense. The 342 defendant must confron ers, have an open trial, 6 made. If convicted, th ·. is entitled to the right : Can we do less for voiceless, and helpless the unborn child? If therapeutic abortic. tinue on an expanded D as the Model Penal Cc ifornia proposals wish is recommended: (1) that it be confinedfee clinics affiliated wituniversity. Two of :would be located ir California and two California;is accus­a record efendant ,ppeal. voteless, nority-.s to con­�ical basis and Cal, enact, it large no-1 teaching ,se clinics Northern Southern (2) that it be done c ly on therecorded judgment of t : staff or aspecially qualified cm ,nittee, onspecified medical grou ls, reciting the facts of each CE � and the authority for holding .hat thera·peutic abortion is m 2ssary and will be beneficial in su · 1 case with­out offsetting after-eff ( ts; (3) that such judgmer . be enteredonly after appearance af a public guardian, physician or attorney f�r the unborn. The righL of appeal is implicit and must be understood;( 4) that a follow�up record on e�chpatient be required, wi1h a cleannghouse for reports of all cases a_ndcontinuous revision of acceptable in· dications in the light of additional experience, development of therapies et cetera; e of (S) that the statutory excus necessity of therapeutic abortion for the preservation of the life of themother be an affirmative defense, LINACRE QUARTERLY to be proved by the defendant as a fact, not as a mere opinion; (6) that there be denied to anystaff or committee the authority to approve therapeutic abortion in anycase in which it is asked on socialor other non-medical grounds, or ona record in which entries have beenmade of such non-medical elements.As a medical man specializing in the practice of obstetrics and gyne­cology. and relying on the legalprofession, I have quoted extensively�e work of Mr. Eugene Quay5 who JS the founder and first editor-in­chief, Georgetown Law Journal.REFERENCES 1C.Onn. Gen. Stat. Tit., 53. pp. 29-32 (1958). 2Model Penal Code, Sec. 207.11 (I), (2) (Tent-Draft No. 9, 1959). 1English, H. B.,. English, A. C., A Com-MBER, 1966 prehensive Dicti,»· ·11 of Psychological and Psychoana!y: , · · Terms, (Longmans, Green & Co., 19;_;<:! · 4 Health and Safety '.I .le of California, Chap. II, Sec. 1401. 5 Georgetown Law ]01d r 1 1 , Volume 49, No. 2, 1960; Volume 49, No. 3, 1961. BIBLIOGRAPHY: Conn. Gen. Stat. tit., 53. pp. 29-32 (1958). English, H. B., English, A. C., A Compre­hensive Dictionary of Psychological and Psychoanalytical Terms, (Longmans, Green & Co.), 1958. Georgetown Law -Journal, ·volume 49, No. 2, 1960; Volume 49, No. 3, 1961. Health and Safety Code of California, Chap. II, Sec. 1401. Model Penal Code, Sec. 207.11 (I), (2) (Tent-Draft No. 9, 1959). Dr. McNulty is Associate Clinical Profes­sor, Obstetrics and Gynecology, University of Southern California, School of Medicine. He is a Diplomate of the American Board of Obstetrics and Gynecology and a mem­ber of numerous medical societies. 343 

The Therapeutic Abortion Law: A Fight for a Life

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The Therapeutic Abortion Law: A Fight for a Life

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