The Roots of Roe v. Wade

By: Fr. Patrick Henry Reardon

"Children are aborted in the flesh because…they are aborted in the mind."

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During this month, as in every January for the past thirty years, those Americans left with even the meanest vestige of moral instinct will reflect with disgust on the Supreme Court’s ruling in Roe v. Wade. Some of these citizens will also comment, as they should, that that 1973 judicial determination was an affront to humanity, a legal travesty, a distortion of the Constitution surpassing in sheer injustice even the Dred Scott decision of 1857. Some, recalling that the Dred Scott ruling itself set the stage for the Civil War, may wonder–if it was true in yesteryear that "every drop of blood drawn with the lash shall be paid by another drawn with the sword"–whether some yet worse retribution will be exacted of our country by a righteous God righteously stirred at the murder of unborn children in their millions. And wonder they should. Still others, more stalwart of heart, will fortify their resolve to toil for the overthrow of Roe v. Wade, whether by constitutional amendment or by wise judicial appointments to restore the Court’s good sense and moral integrity. All such things will sane Americans think, of course, for these are still the right responses to the most extreme miscarriage of justice ever perpetrated by any court in this nation.

It is not to slight the propriety of any of those responses, therefore, that we declare Roe v. Wade to be more a symptom of our crisis than its cause. It appears to us, as it does to William B. Wichterman in a recent essay ("The Culture: ‘Upstream’ from Politics," in Don Eberly, ed., Building a Healthy Culture: Strategies for an American Renaissance), that "the Court was simply joining the cultural revolution already well underway." Indeed, it is very arguable that Roe v. Wade did rather little to increase the number of legal abortions in this country. Wichtermann himself contends that "the abortion rate probably would have climbed to at least one million per year even without Roe, and more likely higher still."

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By January of 1973, what now goes by the abhorrent euphemism "reproductive freedom" was already a movement robustly on the march, as Gerald N. Rosenberg demonstrated in the study he published eighteen years later, The Hollow Hope: Can Courts Bring About Social Change? When various state legislatures began removing statutory restrictions against abortion toward the end of the sixties, the frequency of the procedure jumped dramatically. Between 1968 and 1973, eighteen states had loosened their anti-abortion laws. In the large states of New York and California there was almost unlimited legal access to abortion chambers, and over a half-million legal abortions were performed in this country during the twelve months preceding the Supreme Court’s ruling. Indeed, before the first line of Roe was composed, 70 percent of all American citizens lived within two hours’ drive of a state where abortions were legal. The pro-choice lobby was definitely in the ascendant, and, according to a Gallup poll published just seven months before Roe, 64 percent of Americans believed that abortion was a matter to be decided entirely by a woman and her physician. Alas, some of us pro-lifers can still remember that it was ourselves, back in those days, not the pro-choice folks, who were counting on vindication by the Supreme Court.

We are not convinced, therefore, that a judicial reversal of Roe v. Wade, though it remains a favor much to be craved, would necessarily diminish the number of legal abortions performed in this country. More likely, such a development would simply shift the pertinent political agitation back to the state legislatures, where, we suspect, the pro-life cause would lose more battles than its proponents contemplate. Law and politics, we contend, lie downstream from culture, and the current cultural state of our nation, particularly with respect to abortion, seems to us not one whit better than it was during the years leading up to 1973. Between 1967 and 1972, a large number of major national groups and alliances passed various resolutions and endorsements to repeal all legal restrictions on abortion. Among those groups were 21 medical organizations and 28 religious bodies, including the YMCA. The political activities of those organizations were mainly directed, not at the Supreme Court, but at state legislatures, where they won more battles than they lost. There is every reason to believe that this would be the case once again if Roe were overturned.

Politics and law, we said, lie downstream from culture. Therefore, the real and deeper dilemma, the dilemma arguably as disturbing as abortion itself, is cultural. Our current culture, to say it plainly, has largely stopped thinking of children as gifts from God and firstfruits of the future. The dominant mentality today is manifestly what Irving Babbitt (if memory serves) called "presentism." It is concentrated almost overwhelmingly on the present because men right now are living increasingly without hope, and they are living without hope because they are not providing for the future. Their cultural despondency is, in this sense, justified. Our culture, compulsively and even morbidly preoccupied with the here-and-now, is deliberately moribund, depriving itself of anything to look forward to. This truth is lucidly indicated by the disastrously low birthrates in this country (and in the West generally).

We submit, therefore, that children are now being aborted in the flesh, because they have already been, in large measure, aborted from the mind. We deprive unborn infants of a future because they are inconveniences intruding on our chosen pursuits in the present. Why should we let those infants live, after all, if they are but the by-products of sexual activity, rather than the properly intended purpose of that activity? In short, our current cultural crisis has to do with sex regarded in terms of present "fulfillment" rather than in terms of future family. The progressive severance of sex from the proper structures and duties of family is, moreover, a concern that most religious bodies in this nation have hardly begun to address at a deep level.

The most obvious manifestation of this severance, of course, is homosexuality. We are content here, however, merely to mention that the matter is obvious; we are not disposed to argue much with those who disagree. Indeed, some of us hardly know where to begin a serious moral conversation with individuals incapable of distinguishing between sexual organs and . . . well, other parts of the body.

Another manifestation of the current severance of sexuality from family, we believe, is recourse to artificial contraception. The pill, the patch, and the condom have become–once again to cite Wichtermann–our culture’s "first defense against childbirth," abortion serving only as a socially distasteful back-up. Pregnancy is now widely regarded as something that married couples are expected to prevent until they, not God, decide that they are ready to have children. Husbands and wives are expected to control, that is, not their sexual behavior, but their incidence of pregnancy. Man, not God, is thereby authorized to decide when and how the creation of human beings takes place. It is no small indication of our cultural decline that we now speak, not of procreation, but of reproduction.

This utterly rebellious attitude, the "contraceptive mentality," is surely a serious moral failing characteristic of the present culture. The relationship of this "contraceptive culture" to abortion itself lies much deeper than a first comparison of the two things might suggest, nor is there any logic, we think, in opposing the terrible sin of abortion while in other respects promoting the selfishness and materialism that give rise to it.

An illustration of the subterranean tunnel joining the ethics of abortion and contraception was provided in the events leading up to Roe v. Wade. It appears obvious to us that the public support for abortion that led to the Supreme Court’s decision in 1973 was not unrelated to the public rage and outcry that greeted the papal encyclical Humanae Vitae in 1968. When Pope Paul VI asserted that the primary and formal purpose of human sexual intercourse is the conception of children and, thus, the assembling of a family, he said no more about artificial contraception than the Bible and traditional Christian doctrine would oblige any Christian pastor to say–namely, that a serious moral flaw adheres to any sexual act that is deliberately closed off to God’s using that act for the creation of a human being. It is our persuasion that if Americans were to take seriously the traditional Christian perspective contained in Humanae Vitae, Roe v. Wade would disappear very quickly.

It is our hope, then, that this thirtieth anniversary of the Supreme Court’s ruling will be the occasion not only for lamenting the ongoing political climate that permits that odious dictum yet to stand, but also for pondering more deeply the grace and mystery of human sexuality itself, especially the manifest purpose for which God gave it to us. We all know there is a tribunal far higher than our Supreme Court. It is important to recall, in addition, that we too will gather before it, to render an account of our stewardship. The present growing separation of sexuality from the formation of family, we suggest, raises some serious questions about that stewardship.

Fr. Patrick Henry Reardon is pastor of All Saints Antiochian Orthodox Church in Chicago, Illinois, and a Senior Editor of Touchstone: A Journal of Mere Christianity.

An Orthodox Perspective on Abortion

By: Fr. Joseph O’Brien

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The earliest specific written references to abortion in Christian literature are those in the Didache (so called The Teaching of the Twelve Apostles) and the Epistle of Barnabas. The Didache combines a code of Christian morality with a brief manual of church life and order, while the Epistle of Barnabas is a more theological tract on Christian life and thought. Both were probably written between the second half of the first century and the early part of the second century. Both writings refer to an ancient tradition known as the "Two Ways". This tradition contrasts the way of Life against that of Death; or of Light against Darkness. The Didache reads, "thou shalt not murder a child by abortion nor kill them when born," and the Epistle of Barnabas reads nearly identically.

Choice

Little has changed in some two thousand years. Morally speaking, in that earlier era there was little argument over whether abortion was ‘right’ or ‘wrong’. It was simply morally wrong — a morally wrong choice. Although today the public rhetoric may be increased, if even a bit confused, over what defines moral ‘right’ and ‘wrong’, the basic ‘problem’ has not changed and public polls consistently support this. That ‘problem’ is the problem of choice, or more accurately, that which ‘informs’ a person’s choice — what determines a person’s morality.

It is important here that we understand morality as a doctrine or system of guiding principles or rules for right human conduct. With this in mind, the results of a recent opinion poll are quite informative. According to the poll, "Among those who support abortion without restriction, 39 percent said they were influenced by medical information they had read or heard; 36 percent said they were swayed by a personal experience, and 6 percent based their opinion on religious beliefs. 76 percent of those who said abortion should not be legal in any circumstance said their position was most influenced by their religious beliefs, while 10 percent cited a personal experience and 9 percent medical information.

The free choice with which man has been endowed is, from the Christian perspective of course, by design of God. Its ultimate purpose is understood in man’s capacity to love. Bp. Kallistos Ware has well stated, "As a Trinitarian God, a God of shared interpersonal love, He desired that we humans in our turn should be joined to Him in a relationship of mutual love. Mutual love, however, presupposes freedom, for where there is no voluntary choice there can be no love. Love cannot be constrained, but can only be tendered willingly; God is able to do anything except compel us to love Him.

From our Christian perspective then, it is unquestionably the most hideous imaginable act which utilizes man’s most fundamental and ‘human’ attribute, that of his capacity to ‘love’, to the purpose of the destruction of that which is to be the object of that love. The fulfillment of the basic principle of life, man’s highest achievement, is wrapped up in the commandment, "You shall love the Lord your God with all your heart, and with all your soul, and with all your strength, and with all your mind; and your neighbor as yourself " (Lk. 10:27).

Personhood

The human person is not merely a lump of flesh, but an embodied soul. "And the Lord God formed man of the dust of the ground, and breathed into his nostrils the breath of life; and man became a living soul" (Gen. 2:7). St. Gregory the Theologian says, "The Creator-Word, determining … to produce a single living being out of both (the invisible and the visible creation) fashions Man; and taking a body from already existing matter, and placing in it a Breath taken from Himself (which the Word knew to be an intelligent soul, and the image of God)… He placed him on the earth… earthly and heavenly, temporal and yet immortal, visible and yet intellectual [spiritual/immaterial], halfway between greatness and lowliness, in one person combining spirit and flesh…." Man, the human person, is a psychosomatic being, that is to say, he is a complete person only in that soul (yuc» -psyche) and body (sîma – soma) are united (psycho-somatic).

The origin of each individual psychosomatic human person is not fully revealed in Holy Scripture. This is a mystery known to God alone. One thing we as Christians can and must say with certainty, however, is that the soul-endowed fetus who resides as yet unborn in its mother’s womb is no less a human person. Tertullian says, "We acknowledge, therefore, that life begins with conception, because we contend that the soul begins at conception. Life begins when the soul begins." But our most fundamental example of the personhood of the fetus lies in a passage of Holy Scripture familiar to all of us Orthodox Christians:

In those days Mary [newly pregnant with our Lord] arose and went with haste into the hill country, to a city of Judah, and she entered the house of Zechariah and greeted Elizabeth. And when Elizabeth heard the greeting of Mary, the babe [John the Forerunner] leaped in her womb; and Elizabeth was filled with the Holy Spirit and she exclaimed with a loud cry, "Blessed are you among women, and blessed is the fruit of your womb! And why is this granted me, that the mother of my Lord should come to me? For behold, when the voice of your greeting came to my ears, the babe in my womb leaped for joy" (Luke 1:39-44).

The Reformation of Ethics — Materialism

Materialism is defined as a theory wherein physical matter is the only or fundamental reality. The only or highest values or objectives then must lie in material well-being. Materialism is basically a preoccupation with or stress upon material rather than spiritual things. Mankind has become infected with this spiritual disorder known as materialism. How did it happen?

Man was originally created to live without a care in the world! He was created to live eternally in a relationship of mutual love with God and his fellow man wherein God, as man’s Creator, provided for his every need. Our God has even given us an earthly example of this spiritual relationship in the healthy parental/infant relationship. The child is a free and unique person who is, however, completely dependent — bodily, materially, emotionally, and spiritually — upon his parents, who in turn provide for those needs in a relationship of mutual love. Thus our Lord Jesus Christ proclaims, "Let the children come to me, and do not hinder them; for to such belongs the kingdom of God. Truly, I say to you, whoever does not receive the kingdom of God like a child shall not enter it" (Lk. 18:16, 17).

With no concern for his needs, nor any thought for his survival, pre-fallen man, like that completely dependent infant, walked with God in the Garden of Paradise (Gen. 3:8). Now, however, as a result of his choice to walk alone, man has lost his carefree life. Man opts for independence and autonomy, and has thus separated himself from God. He must now find a new source for those things which had been previously provided freely and naturally by God.

Most profoundly, man’s freedom has been lost to the tyranny of the ‘garments of skin’ (Gen. 3:21) that he acquired as a result of the Fall. The human body is now ‘grossly’ material and as such it has become the object of man’s undivided attention. I don’t wish to imply here a neoplatonic anthropology — that man was previously a ‘spirit’ being, a disembodied soul, but is now ‘materialized’ due to the Fall. My actual point is that man went from being a ‘prefallen’, might we speculate by saying a ‘balanced’ psychosomatic being, to being a psychosomatic being who is preoccupied with his soma, his material aspect which is physically decaying. He became mortal. St. Paul writes:

For this corruptible must put on incorruption, and this mortal must put on immortality. So when this corruptible has put on incorruption, and this mortal has put on immortality, then shall be brought to pass the saying that is written: "Death is swallowed up in victory." "O Death, where is your sting? O Hades, where is your victory?" The sting of death is sin, and the strength of sin is the law. But thanks be to God, who gives us the victory through our Lord Jesus Christ (1 Corinthians 15:53-57 NKJV).

Due to his estrangement from God man must now strive by the sweat of his brow to acquire his own physical sustenance.[9] He must also provide all those other forms of sustenance which are less tangible but no less real; purpose, self-worth, love, and even longevity, i.e., life itself. However, man remains the creature, not the Creator. He thus falls very short indeed of providing himself with these necessities of genuine life. The result of a secularized existence separated from God is gross materiality and estrangement from the life-bestowing immaterial energies of God. The creature remains fundamentally powerless, although he still carries a vague familiarity with those naturally imparted essential aspects of human life which make him complete and genuinely human. Fallen man becomes a biologically preoccupied being. The focus of man’s life becomes materialistic rather than spiritual.

Materialism is thus driven by the priority of biological survival, followed closely by other matters of material preservation and the need to supply those other less tangible forms of sustenance in a world estranged from God. Not only the imperatives of food, shelter and clothing, but those of purpose, fulfillment, love and companionship also take on more of a materialistic conception of fulfillment. Thus the kind of car that we drive, the location of the home we live in, the status of the job we are employed at, are all aimed to fulfill these fundamental needs we perceive within us. The choice to abort a child then is a choice born from the ‘materialization’ of such needs. The sanctity of life and the inherent potential of the deification of man, which seem to strike some primal chord within us, are now all but drowned out by the redefined imperatives of a materialistic world-view

The Restoration of Ethics

This is the essence of life in Christ — the restoration of man to God and the subsequent restoration of those things that make man truly human. In light of such things, abortion is truly unthinkable, even if pregnancy results in the most tremendous hardships. Why? Because the believer who is entering the kingdom of God does not live for the things of the flesh, but for the things of the spirit. "For those who live according to the flesh set their minds on the things of the flesh, but those who live according to the Spirit set their minds on the things of the Spirit" (Rom. 8:5). "But I say, walk by the Spirit, and do not gratify the desires of the flesh. For the desires of the flesh are against the Spirit, and the desires of the Spirit are against the flesh; for these are opposed to each other … " (Gal. 5:16-17).

It is always a matter of choice. It must be so. This is what makes us human. Not all choices, however, are equal. We are absolutely unconstrained, and must make our choices. Yet with each choice comes the potential to further our freedom. We must choose to either live in Christ and in the freedom of life in the Holy Spirit, or we can choose to allow ourselves to be enslaved to a grossly material ‘substitute’ way of life, imprisoned by our own fears and our own passions.

The unique tragedy of the choice we call abortion is that it is a terminal choice for another human soul, someone of whom our Lord has said, "…for to such belongs the kingdom of God" (Lk. 18:16). As such, the choice for abortion stands, even more so than the premeditated murder of an adult person, as the ultimate manifestation of man’s self imposed alienation and estrangement from God and from his fellow man. It is the fatal and final choice which marks our own spiritual death.

Joseph O’Brien is priest at St. Nicholas of South Canaan Church in Billings, Montana. This article can be found at the Orthodox Peace Fellowship website and is reprinted with permission of the author.

The Fathers of the Orthodox Church on Abortion

The following represent the teaching of the Orthodox Church from the [early] second century through the fifth century…. Note that penalties, when they are given, are neither civil nor criminal, but ecclesiastical and pastoral (excommunication for the purpose of inducing repentance). Also note that the these quotes deal with both surgical and chemically induced abortion, both pre- and post-quickening.

From the Letter to Diognetus:
(speaking of what distinguishes Christians from pagans) "They marry, as do all others; they beget children but they do not destroy their offspring" (literally, "cast away fetuses").

From the Didache:
"You shall not slay the child by abortions."

From the Letter of Barnabus:
"You shall not destroy your conceptions before they are brought forth; nor kill them after they are born."

From St. Clement:
"Those who use abortifacients commit homicide."

From Tertullian:
"The mold in the womb may not be destroyed."

From St. Basil the Great:
"The woman who purposely destroys her unborn child is guilty of murder. The hair-splitting difference between formed and unformed makes no difference to us."

From St. Augustine:
"Sometimes their sadistic licentiousness goes so far that they procure poison to produce infertility, and when this is of no avail, they find one means or another to destroy the unborn and flush it from the mother’s womb. For they desire to see their offspring perish before it is alive or, if it has already been granted life, they seek to kill it within the mother’s body before it is born."

From St. John Chrysostom:
"Why do you sow where the field is eager to destroy the fruit? Where there are medicines of sterility? Where there is murder before birth? You do not even let a harlot remain only a harlot, but you make her a murderess as well. Indeed, it is something worse than murder and I do not know what to call it; for she does not kill what is formed but prevents its formation. What then? Do you condemn the gifts of God, and fight with His laws? What is a curse you seek as though it were a blessing. Do you make the anteroom of slaughter? Do you teach the women who are given to you for a procreation of offspring to perpetuate killing?"

Canon XCI:
As for women who furnish drugs for the purpose of procuring abortions, and those who take fetus-killing poisons, they are made subject to penalty for murderers.

Canon II:
"A woman who aborts deliberately is liable to trial as a murderess. This is not a precise assertion of some figurative and inexpressible conception that passes current among us. For here there is involved the queston of providing for the infants to be born, but also for the woman who has plotted against her own self. For in most cases the women die in the course of such operations, But besides this there is to be noted the fact that the destruction of the embryo constitutes another murder…. It behooves us, however, not to extend their confessions to the extreme limit of death, but to admit them at the end of the moderate period of ten years, without specifying a definite time, but adjusting the cure to the manner of penitence."

Canon XXI:
"Regarding women who become prostitutes and kill their babies, and who make it their business to concoct abortives, the former rule barred them for life from communion, and they are left without resource. But having found a more philanthropic alternative, we have fixed the penalty at ten years, in accordance with the fixed degrees. …"

"As for women who destroy embryos professionally, and those (non-prostitutes) who give or take poisons with the object of aborting babies and dropping them prematurely, we prescribe the rule that they, by economy, be treated up to five years at most."

All quotes are from "The Church Fathers on Social Issues," Department of Youth Ministry of the Greek Orthodox Archdiocese of North and South America.

Orthodox Church Supreme Court Brief on Roe v. Wade

By: James George Jatras and Paul Farley. Orthodox Christians for Life. Co-author James George Jatras is a member of the AOI Board of Advisers.

The Amicus Curiae Submitted to the Supreme Court

No. 88-605

In The

Supreme Court of the United States

October Term, 1988

WILLIAM L. WEBSTER; STATE OF MISSOURI, Appellants,

v.

REPRODUCTIVE HEALTH SERVICES; PLANNED PARENTHOOD OF GREATER KANSAS CITY;
HOWARD I. SCHWARTZ, M.D.; ROBERT L. BLAKE, M.D.; CARL C.
PEARMAN, M.D.; CARROLL METZGER, R.N.C.;
MARY L. PEMBERTON, B.S.W., Appellees.

On Appeal From The United States Court of Appeals For the Eighth Circuit

BRIEF AMICUS CURIAE OF THE HOLY ORTHODOX CHURCH

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The Holy Orthodox Church respectfully submits this brief amicus curiae on behalf of itself and its members. [1]

INTEREST OF AMICUS CURIAE

The Holy Orthodox Church was founded by Jesus Christ and the Apostles, and bears witness to that continuous and unbroken faith. [2] The precepts of the Orthodox Christian faith mandate the protection of innocent human life, especially that of unborn children. The Church regards abortion as murder, and as such, takes a very active role in opposing legalized abortion. That the issue of abortion has both a moral and a legal dimension to it, is indisputable. However, this cannot in any way be equated to an assertion that the two aspects are disparate, or unrelated. Rather, the two have historically been intertwined; it must be recognized that laws have traditionally been positive expressions of moral norms.

The Framers of the Constitution discerned a divine presence not only in daily living, but as reflected in the Constitution itself. "It is impossible for any man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolutionary." [3] That is, a law must of its very nature have a moral component to it, which cannot be divorced from the law itself.

Legal precepts, particularly those of constitutional proportions, simply cannot be judged in a vacuum. This notion not only predates the Constitution; [4] it is at the very heart of our civilization. The foundations of our morality can be found in the dawn and early morning light of the Judeo-Christian tradition, of which the Orthodox Church is a unique custodian. From its inception nearly two thousand years ago, it has never deviated from its condemnation of abortion, based on numerous scriptural references and the teaching of the Holy Fathers of the Church. The Church regards the Roe v. Wade decision as a gruesome turn on the road of judicial activism, having resulted in a holocaust which has claimed at least twenty million innocent lives. [5]

STATEMENT OF THE CASE AND STATEMENT OF FACTS

Amicus curiae adopts the statement of the case and the statement of the facts as set out in the Appellants’ Brief.

SUMMARY OF ARGUMENT

In this case, the Holy Orthodox Church seeks to restore to our nation’s law the highest principle which a civilized society can espouse—the recognition that all human life is sacred. In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court relied heavily upon its presentation of historic Christianity’s teaching and practices. The assertions made in Roe were erroneous, and have no foundation in the church’s traditions. Rather than being ambivalent, or even condoning abortion, as suggested by the Roe Court’s opinion, historic Christianity has always condemned abortion as murder, without regard for any distinctions as to fetal development or viability.

The Roe Court also blurred the factual question of when life begins with the distinct legal question of what constitutional value attends to that life. The resulting confusion has tied the hands of legislators, and elevated abortion to the status of a near-absolute right. Unless this Court takes judicial notice, the factual question of when life begins is properly a subject for legislative findings. The strictly legal question of a life’s constitutional value is the clear issue before this Court, as the State of Missouri has made an appropriate factual determination.

Science and history both mandate a conclusion that human life and constitutional personhood are coextensive, and any other result is without foundation in American jurisprudence. Consequently, the Holy Orthodox Church urges this Court to overrule Roe v. Wade, and accord full constitutional protection to all human life beginning at conception.

ARGUMENT
I. THIS IS AN APPROPRIATE CASE IN WHICH TO RECONSIDER ROE v. WADE

In Roe v. Wade, 410 U.S. 113 (1973), and in subsequent cases, this Court has never reached the critical legal and public policy issue, that of when life begins. Id. at 159. However, for constitutional purposes, it is entirely appropriate for this Court to undertake to construe the term "life" as it appears in both the Fifth and Fourteenth Amendments. [6] In the absence of a judicial determination, such matters have traditionally been committed to the political processes. Unfortunately, the Court has nonetheless proceeded to preclude any legislative determination of the question. Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 444 (1983).

This has created the confusing and circular assertion that life and personhood are unrelated, but nonetheless it is impermissible for legislatures to make findings as to when life begins. Unlike any other factual question, the political processes are now forbidden from employing the fruits of scientific research. If elected officials are to be prohibited, as a matter of law, from making necessary and proper factual findings, then this Court must determine for purposes of the Constitution, whether or not life is present in an unborn fetus. The State of Missouri has undertaken to make such a determination, and to address the merits of this case, this Court must make a ruling upon the validity of that assertion. Even though the question of when life begins may be difficult, [7] that does not remove the necessity of a just and proper judicial disposition of this case.

The Court has elevated abortion above all other constitutional rights; in practice, it may not be restricted, even if a life is indeed present. Unlike other constitutional rights, abortion need not be balanced against competing governmental interests. The implication is that the right to an abortion is more central to the tradition of individual liberty in America than the cherished rights of free speech and religion.

The Missouri statute at issue here presents an important opportunity for this Court to resolve the ambiguities created by previous decisions, and clarify the precise relationship between human life and constitutional personhood. The Court need not make a ruling on the factual question of when life begins; indeed, this is properly left to legislatures and trial courts. However, it is imperative that there be a clear statement of the constitutional value of human life, whatever point science indicates it begins. If personhood does not attach until birth, then it is crucial to have guidance as to the legal status of pre-natal human life. The instant case frames the issue as clearly as is possible.

II. ROE v. WADE WAS WRONGLY DECIDED AND OUGHT TO BE OVERRULED

Amicus does not suggest to this Court that the theology or canons of the Orthodox Church, or of any other religious body, should form the basis of American constitutional law. However, in its lengthy historical exegesis, the Roe Court sought to show that abortion was philosophically and morally grounded in the Judeo-Christian tradition. To the extent such a perception is the foundation of Roe, the Orthodox Church bears an undivided witness to the fact that it is a perception which is utterly inconsistent with the experience of historic Christianity.

In the early centuries of the Church, its moral traditions and teachings were universally embraced, holding sway over almost the whole of Europe, the Middle East, and northern Africa, from Hadrian’s Wall to the frontiers of the Persian Empire. Though this unanimity was later lost, the divergent moral strands of western thought, including Anglo-American jurisprudence, ultimately trace their lineage to this rich heritage.

A. The Court’s Finding in Roe v. Wade, That Abortion is Consistent With Historic Moral Practices, is Erroneous

The Roe Court relied heavily upon the contention that "Christian theology and canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century," and that "there was otherwise little agreement about the precise time of formation or animation." 410 U.S. at 134. The Court apparently found that Aristotle’s three stage theory of life formed the basis of Christianity’s beliefs, and "came to be accepted by early Christian thinkers." Id. at 133, n.22. The implicit conclusion is that the ancient Christian Church did not consider abortion in early pregnancy to be the taking of a human life. With all due respect to this Honorable Court, such was simply not the case.

Early Christian thought was not in any sense comparable or equivalent to prior Jewish or Greco-Roman traditions. The Church’s teaching represented a significant departure from Aristotelian thought, and from the beginning regarded abortion as abhorrent and an abomination before God. The biologically erroneous Aristotelian view was rarely alluded to, and even in such cases where mention was made of the attempted distinction between "formed" and "unformed" fetuses, it was for the purposes of reiterating its moral irrelevance. To the extent that some western Christian writers espoused certain elements of Aristotelian philosophy, they must be regarded as rather exceptional scholastic forays, whose basic premises and ultimate results have now been conclusively demonstrated to be false. The Christian Church, from its inception, expressed a distinct and fundamental horror of abortion, at whatever stage of pregnancy, and considered it to be the killing of a human being.

1. Early Christian Writings, and the Fathers of the Church, All Condemned Abortion as Murder

Among the most highly regarded of ancient Christian writings is the Didache, which dates from the late first century. [8] Its teaching is unambiguous: "Do not murder a child by abortion or kill a newborn infant." Id. at II, 2. This is echoed in another didactic writing universally esteemed in the ancient Church, the Epistle of Barnabas, from the early second century: "Never do away with an unborn child or destroy it after its birth." Id. at XIX, 5.

The writings of the Fathers of the Church and other authorities further attest to the unanimity with which abortion was condemned. Among the earliest was the philosopher and apologist Athenagoras of Athens, who wrote to the Emperor Marcus Aurelius (c.177) to defend Christians against false charges of murder: "What reason would we have to commit murder when we say that women who induce abortions are murderers, and will have to give account of it to God?" [9] St. Basil the Great (c.330-379) was unequivocable: "A woman who deliberately destroys a fetus is answerable for murder." [10] St. John Chrysostom (c.345-407) who in his famous homilies railed against men who secured the abortions of their illegitimate offspring, called their actions "even worse than murder." Of such men who impelled women to have abortions, he said, "You do not let a prostitute remain a prostitute, but make her a murderer as well." [11]

Finally, Canon 91 of the Quinisext Ecumenical Council (691 A.D.), decreed that people "who furnish drugs for the purpose of procuring abortion, and those who take fetus-killing poisons, they are made subject to the penalty prescribed for murderers." The same canonical position along with the opinions of individual Church Fathers, were compiled in the Photian Collection, which was adopted as the official ecclesiastical law book of the Orthodox Church in 883 A.D.

2. The Early Church Recognized That Life Begins at Conception, and Rejected Distinctions Based Upon Fetal Development or Viability

The Roe Court observed that there was "little agreement about the precise time of formation or animation.

There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide." 410 U.S. at 134. This assertion has no basis in the practices or theology of historic Christianity.

Among the earliest testimonies that fetal development was irrelevant is that of St. Basil the Great, who wrote that "any hairsplitting distinction as to its being formed or unformed is inadmissible with us." [12] He also condemned suppliers of abortifacients, regardless of the stage of pregnancy: "’Those who give potions for the destruction of a child conceived in the womb are murderers, as are those who take potions which kill the child." [13]

St. Basil’s brother, St. Gregory of Nyssa (c.335-394), saw the fetus as a complete human being from the time of conception, and specifically rejected theories based upon formation or quickening: "There is no question about that which is bred in the uterus, both growing, and moving from place to place. It remains, therefore, that we must think that the point of commencement of existence is one and the same for body and soul." [14] Even Tertullian of Carthage (c.160-c.230), a prominent Latin ecclesiastical writer who seemed to accept the formed/unformed distinction as a biological matter, dismissed its moral importance: "Abortion is a precipitation of murder, nor does it matter whether or not one takes a life when formed, or drives it away when forming, for he is also a man who is about to be one." [15]

Though less specific, Holy Scripture also recognizes that an unborn child’s life is sacred, and begins no later than conception: "’Before I formed you in the womb, I knew you, and before you were born I consecrated you; I appointed you a prophet to the nations." Jeremiah 1:5, 6. [16] Also noteworthy is St. Luke’s use of the same Greek word, brephos (baby), for both the unborn St. John the Baptist (Luke 1:44) and the newly-born Christ child (Luke 2:12). Even more indicative are those examples, in both Old and New Testaments, where God enters into a direct personal relationship with a specific individual before birth, by "consecrating," "appointing," "calling," and //setting apart" the unborn child through His grace. [17] This testifies to the Bible’s view that the fetus is not only a human being but a person. That this understanding of an unborn person’s receptivity to divine grace extends back to conception is further evidenced by the ancient practice, as formalized in the Church calendar, of celebrating not only the conception of Christ (Annunciation, March 25), but that of His mother (December 9), and St. John the Baptist (September 23).

The canon law of the ancient Church, still in effect in the Orthodox Church today, is entirely consistent with the foregoing exposition of theological, patristic, and scriptural evidence. The first canonical pronouncement specifically on abortion was that of the regional Council of Elvira, Spain (c.303 A.D.), imposing life-long excommunication. In 314-315 A.D., the regional Council of Ancyra adopted Canon 21:

Regarding women who become prostitutes and kill their babies, and who make it their business to concoct abortives, the former rule barred them for life from communion, and they are left without recourse. But, having found a more philanthropic alternative, we have fixed the penalty at ten years, in accordance with the fixed degrees.

The reference to prostitutes attests to the Fathers’ recognition that abortion was only resorted to by women in the most desperate social circumstances. Three centuries into the Christian era, abortion was unthinkable to the broad mass of Christian people; canon law was adopted which lightened the penalty imposed upon those most in need of mercy. More importantly, the "former rule," imposing life-long excommunication, is Apostolic Canon 66, which pertains to homicide. [18] The fact that for centuries the Church treated abortion at any stage of pregnancy as homicide, without regard to fetal development, is indicative of the illusory nature of the formed/ unformed distinction.

In addition, the Roe Court’s reliance upon the writings of Augustine of Hippo (354-430) and Thomas Aquinas (1225-1274), as indicative of early Christian thought was misplaced. [19] While concepts such as "ensoulment" or "quickening" gained some currency in certain ecclesiastical circles beginning in the fifth century, this serves only to underscore the danger inherent in drawing broad-based conclusions based upon excerpts of writings from selected theologians. Augustine never laid claim to being infallible, nor did he presume to speak for the entire Church. [20] In fact, in the conclusion of his final treatise, he offered his opinions humbly to the judgment of the Church: "Let those who think that I am in error consider again and again carefully what is here said, lest perchance they themselves may be mistaken. And when, by means of those who read my writings, I become not only wiser, but even more perfect, I acknowledge God’s favor to me." [21]

However, there is no doubt that despite their misunderstanding of fetal development, they sought to protect the fetus and considered its destruction homicide. We can, with the benefit of historical and scientific hindsight, attribute the misapplication of a correct impulse to a biological error stemming ultimately from Aristotle. The Roe Court adopted this error as the basis of its analysis of the moral acceptability of abortion over the past two thousand years; but as would be the case with a hypothetical body of jurisprudence based on the Ptolemaic geocentric system or the phlogiston theory of combustion, this Court should not hesitate to look beyond what we now understand to be a factual error, albeit a persistent one.

Historic Christianity recognized conception as the time at which life and soul were united, and regarded abortion at any stage of pregnancy as homicide. Though the Orthodox Church, for historical reasons relating to its organizational and doctrinal continuity with historic Christianity, is more acutely aware of this fact, this should not be taken as sectarian pleading. Rather, it is a unique witness to an older and sounder tradition that is our common heritage. The fact that the theological writings of Christian antiquity were formulated by men with little understanding of biology, but whose views are entirely compatible with our modern understanding, is further testament to their moral perspicacity.

B. Human Life Begins at Conception

The incorrectness of the Roe Court’s assertion that there has been a historic lack of consensus on abortion has been demonstrated in section II A, supra. Even so, it is not the judiciary’s proper role to evaluate consensus. The Federalist No. 78 (A. Hamilton.) The legal and social morass resulting from the Roe decision is in large part a product of the confusion over what was actually decided. The Roe Court blurred the strictly factual question of when life begins with the quite distinct legal determination of what constitutional value attends to that life.

Modern science has borne out the prescient wisdom of the Holy Fathers of the Church, that life begins at conception, and at no other arbitrary or scholastically derived juncture. [22] However, this Court need not make a scientific determination of when life begins, any more than it was necessary in Roe to determine when a fetus is "viable;" this is a matter which is properly committed to the political processes. The Missouri legislature has undertaken to make findings of fact, as is appropriate in matters of social and economic regulation. It is improper for the judiciary to enjoin the political processes from determining the factual basis for proposed legislation. Traditionally, the federal courts give the greatest possible deference to legislative determinations with respect to such questions. [23]

This Court need only interpret the term "person," and thereby determine the constitutional value of unborn human life. Unless this Court should foreclose the option by taking judicial notice, or adopting a constitutional definition of "life" embracing a manifest legal fiction, the State of Missouri is entitled to make a judgment as to when life begins. The judiciary’s role is to determine the constitutional value of that life.

C. A Human Life is a "Person" for Purposes of the Constitution

To the extent that a construction of the term "person," as used in the Constitution, was made in Roe, it was done on the basis of the facts as presented and understood by the Court as that time. Amicus respectfully submits that the factual underpinnings of Roe v. Wade were erroneous, or at best incomplete. Reliance upon Aristotle and other selected writers from antiquity do not validate the Roe Court’s conclusion that the morality of abortion has traditionally been ambivalent. As shown supra, some theorists have had erroneous views of the factual question of when life begins, but there has been no divergence as to the legal and moral value of that life once it has been established.

In Roe the Court went to some lengths to demonstrate that most references to "persons" in the Constitution had solely a postnatal connotation. However, this begs the question as to what "person" means in the Fourteenth Amendment. It must also be observed that most constitutional references to persons only dealt with adults, and in the original intent of the document, only white males. However, again, this still does not speak to the Fourteenth Amendment, which obviously was intended to vindicate the rights of black children as well as adults, and has subsequently been applied to protect the rights of women as well as men. There is no basis in history, jurisprudence, or simple logic to justify specially exempting the unborn from the scope of the Amendment.

Furthermore, the appropriate constitutional definition of "person" has already been made by this Court. Justice Douglas, writing for the Court, found that illegitimate children are "persons," on the grounds that:

They are humans, live, and have their being. They are clearly "persons" within the meaning of the Fourteenth Amendment. Levy v. Louisiana, 361 U.S. 68, 70 (1968).

Unborn children clearly are human, do live, and have their being, in accordance with Justice Douglas’ perceptive holding. An unborn child has as little control over its status as an illegitimate child, and is far more vulnerable. They are "persons" under the Constitution, and there is no rational basis whatsoever for creating an arbitrary or scholastic distinction so as to exclude them.

Another critical distinction which the Roe Court ignored was the Fourteenth Amendment’s differentiation of citizenship and personhood:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [24]

As understood by the Framers of the Fourteenth Amendment, citizenship relates to political rights, while personhood deals with the more basic rights inherent in all human beings. See, e.g., Bishop, The Privileges or Immunities Clause of the Fourteenth Amendment, 79 Nw. U. L. Rev. 142, 151-153 (1984). The latter is a much broader classification than the former, encompassing both citizens and non-citizens; all citizens are persons, but the reverse is not true. Even a decision as monstrous as Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857), conceded that slaves were persons under the Constitution, but denied them the privileges of citizenship.

Therefore, the many references to "persons" cited by the Roe Court in support of its finding of purely postnatal application were, contextually, referring to persons who were also citizens. [25] The references to "persons" relied upon by the Roe Court were made in political contexts, such as eligibility to vote or to hold political office, which of course would preclude all persons under a certain age, whether born or not. Such strict textual interpretation, done without regard for historical meaning and context, is devoid of constitutional justification.

In addition, this Court had already, some eighty-seven years prior to Roe, recognized corporations as "persons" under the Fourteenth Amendment. Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394, 396 (1886). That corporations are not male, female, black, white, pre-natal, nor post-natal, is transparently obvious. There is also no conflict between the recognition of personhood, but simultaneous denial of citizenship, as corporations cannot vote nor hold political office. Thus, while Santa Clara is entirely consistent with the Fourteenth Amendment, Roe is not. The distinctions made in Roe and its progeny are artificial and have no basis in the adjudication of constitutional claims. This is made readily apparent through attempting to reconcile Santa Clara and Roe. Reading them together creates a result which is "hauntingly Orwellian—something can be a person without being human, and can be human without being a person. [26] No civilized society can possibly endorse such a conclusion.

The instant case clearly frames the contradictions and ambiguities precipitated by the Roe decision, and Amicus urges this Court to resolve them by reaffirming the moral, social, and legal recognition of the value of unborn human life.

CONCLUSION

The historic morality which forms the foundation of American constitutional thought is firmly grounded in the Judeo-Christian tradition. That tradition has unambiguously recognized that life begins at conception, and that abortion is murder. The notion that abortion on demand is an inherent right which cannot be denied, is of recent origin. Samuel Adams recognized that such innovations should be resisted: "If the liberties of America are ever completely ruined,… it will in all probability be the consequence of a mistaken notion of prudence, which leads men to acquiesce in measures of the most destructive tendency for the sake of present ease." [27]

The "present ease" of abortion on demand does not, and cannot, alter the historical and moral truth that "universal life would proceed according to nature if we would practice continence from the beginning instead of destroying, through immoral and pernicious acts, human beings who are given birth by Divine Providence." [28] The assembled jurisdictions of the Holy Orthodox Church in the United States speak with one voice in urging this Court to recognize the sanctity of human life, and reverse the decision of the Court of Appeals.

Dated this 21st day of February, 1989.

Respectfully submitted,

JAMES GEORGE JATRAS*
PAUL FARLEY
ORTHODOX CHRISTIANS FOR LIFE
Post Office Box 805
Melville, New York 11747
(631) 271-4408

Endnotes

*Counsel of Record. Orthodox Christians for Life is a National with 700 members in the US, Canada, and several other countries. We were organized in 1986 and are still active and coordinate the annual Orthodox presence at the March for Life in Washington DC on or about Jan. 22.

1. Counsel for Amicus has obtained the oral consent of both parties to this case. Written consent shall be filed with the Clerk of the Court immediately upon its receipt.

2. The Holy Orthodox Church includes all major Orthodox Christian groups in the United States: Albanian, American, Antiochian, Bulgarian, Carpatho-Russian, Greek, Romanian, Russian, Serbian, and Ukrainian. Regardless of the jurisdiction, all Orthodox Christians share a unity of faith and tradition extending back almost two thousand years to the time of Jesus Christ and the Apostles.

3. The Federalist, No. 37 (J. Madison). George Washington echoed this sentiment it would be peculiarly improper to omit, in this first official act, my fervant supplications to that Almighty Being, who rules over the universe, who presides in the council of nations, and whose providential aids can supply every human defect…. In tendering this homage to the great Author of every public and private good, I assure myself that it expresses your sentiments not less than my own…. No people can be bound to acknowledge and adore the invisible hand, which conducts the affairs of men, more than the people of the United States." Washington, First Inaugural Address, quoted in, Eliot, American Historical Documents, 1000-1904, at 226 (New York: P.F. Collier & Son Corp., 1938).

4. See, e.g., John Locke, Second Treatise on Civil Government, ch. IV, secs. 22 and 23 (New York: Liberal Arts Press, 1952).

5. This brief is filed with the blessings of: The American Carpatho-Russian Orthodox Greek Catholic Diocese: His Grace, Bishop Nicholas; V. Rev. Frank P. Miloro, Dean of Christ the Savior Orthodox Theological Seminary; The Anthiochian Orthodox Christian Archdiocese of North America: His Eminence, Most Rev. Metropolitan Philip; Rt. Rev. Antun, Auxiliary Bishop; V. Rev. Peter E. Gillquist, Chairman of the Council of Coordinators, Antiochian Evangelical Orthodox Mission, and member, Worship and Evangelization Committee, National Council of Churches; V. Rev. Jack N. Sparks, Dean of St. Athanasius College; The Greek Orthodox Archdiocese of North and South America: Rt. Rev. Maximos, Bishop of Pittsburgh; Rev. Dr. Stanley S. Harakas, Archbishop Iakovos Professor of Orthodox Theology and Christian Ethics, Holy Cross Greek Orthodox School of Theology; Rev. Dr. Theodore Stylianopoulos, Professor of New Testament and Orthodox Spirituality, Holy Cross Greek Orthodox School of Theology, and member of the Central Committee of the World Council of Churches; Rev. Fr. George A. Alexson, Secretary-Treasurer of the Greater Washington Orthodox Clergy Council, and Pastor, St. Katherine’s Greek Orthodox Church of Northern Virginia; The Orthodox Church in America: His Beatitude Theodosius, Archbishop of Washington, Metropolitan of All America and Canada; Rt. Rev. Peter, Bishop of New York and New Jersey; Rt. Rev. Dimitri, Bishop of Dallas and the South; Rt. Rev. Herman, Bishop of Philadelphia and Eastern Pennsylvania; Rt. Rev. Gregory, Bishop of Sitka and Alaska; Rt. Rev. Nathaniel, Bishop of Detroit and the Romanian Episcopate; Rt. Rev. Job, Bishop of Hartford and New England; Rt. Rev. Tikhon, Bishop of San Francisco; Rt. Rev. Mark, Acting Bishop of Chicago and the Midwest; V. Rev. Leonid Kishkovsky, Secretary of External and Ecumenical Affairs, and President-Elect of the National Council of Churches; V. Rev. John Meyendorff, Dean of St. Vladimir’s Orthodox Theological Seminary, and Professor of Church History and Patristics; V. Rev. Daniel K. Donlick, Dean of St. Tikhon’s Orthodox Theological Seminary; V. Rev. Joseph P. Kreta, Dean of St. Herman’s Orthodox Theological Seminary; V. Rev. Thomas Hopko, Associate Professor of Dogmatic Theology, St. Vladimir’s Orthodox Theological Seminary, and member, Faith and Order Commission of the World Council of Churches; V. Rev. John Kowalczyk, Adjunct Professor of Religious Education and the Christian Family, St. Tikhon’s Orthodox Theological Seminary, and Pro-Life Coordinator of the Diocese of Eastern Pennsylvania; V. Rev. Vladimir Borichevsky, Professor of Moral and Pastoral Theology, St. Tikhon’s Orthodox Theological Seminary; Rev. Fr. Alexander F.C. Webster, Senior Research Associate, Ethics and Public Policy Center, Washington, D.C. (for identification only); Holy Transfiguration Orthodox Monastery, Elwood City, Pennsylvania; Holy Dormition Orthodox Monastery, Rives Eaton, Michigan; The Russian Orthodox Church in Exile: His Eminence, Most Rev. Vitaly, Metropolitan of New York and Eastern America, First Hierarch of the Russian Orthodox Church in Exile; Most Rev. Anthony, Archbishop of Los Angeles and Southern California; Most Rev. Antony, Archbishop of San Francisco and Western America; Most Rev. Laurus, Archbishop of Syracuse and Holy Trinity Monastery, Rector of Holy Trinity Orthodox Seminary, and Abbot of Holy Trinity Orthodox Monastery, Jordanville, New York; Rt. Rev. Alypy, Bishop of Chicago, Detroit, and Midwest America; Rt. Rev. Hilarion, Bishop of Manhattan; Rt. Rev. Daniel, Bishop of Erie and Protector of the Old Rite; Rev. Fr. Alexey Young, Editor of ‘Orthodox America’; Rev. Fr. Gregory Williams, Editor of ‘Living Orthodoxy’; The Serbian Orthodox Church in the United States and Canada: His Grace, Bishop Christopher; The Ukrainian Orthodox Church of America and Canada: His Grace, Bishop Vsevolod.

In addition, this brief is endorsed by: Orthodox Christians for Life—John Protopapas, Co-Founder and Chairman; Rev. Fr. Edward Pehanich, Co-Founder and Spiritual Advisor, and Diocesean Representative for the Carpatho-Russian Orthodox Greek Catholic Diocese; Valerie Protopapas, Educational Director, and Sanctity of Life Director for the Diocese of New York and New Jersey (OCA); and V. Rev. Gordon T. Walker, liaison to the Antiochian Evangelical Orthodox Mission. This brief is also endorsed by: Dr. Lewis J. Patsavos, Professor of Canon Law, and Dr. John Chirban, Professor of Psychology and Counseling, Holy Cross Greek Orthodox School of Theology; Dr. John Erickson, Professor of Canon law and Church History, St. Vladimir’s Orthodox Theological Seminary; the Orthodox Christian Association of Medicine, Psychology, and Religion; the Orthodox Brotherhood of the United States; the National Association of Romanian Orthodox Women in America; and American Romanian Orthodox Youth.

6. "No person shall be … deprived of life, liberty, or property, without due process of law… ." U.S. Const. amend. V. "No State shall … deprive any person of life, liberty, or property, without due process of law. . . ." U.S. Const. amend. XIV, sec. 1.

7. Roe v. Wade, 410 U.S. 113, 159 (1973).

8. Also known as The Teaching of the Twelve Apostles, it is a codification of the oral tradition handed down by the Apostles to their successors. Cf. II Thessalonians 2:15. It was called "scripture" by Clement of Alexandria (+c.215), and was recommended for catechists by St. Athanasius (c.297-373).

9. Athenagoras, Legation for Christians, 6 Patrologia Graeca 969 (Paris: J.P. Migne ed., 1844-1865).

10. St. Basil the Great, Letters CLXXXVIII, Canon 2.

11. St. John Chrysostom, Homilies in Romans, XXIV. See also the authoritative treatise by Fr. John Kowalczyk, An Orthodox View of Abortion, (Minneapolis: Light & Life Publishing Co., 2d ed. 1979).

12. St. Basil the Great, supra note 10.

13. Id., Canon 8 (emphasis supplied.)

14. St. Gregory of Nyssa, On the Soul and the Resurrection.

15. Tertullian of Carthage, Apology IX.

16. See also, Job 10:8, 9, 11; Psalms 139:13-16; Ecclesiastes 11:5; Luke 1:41-44.

17. See, e.g., Psalms 139:13-16; Isaiah 44:2; Isaiah 49:1, 5; Jeremiah 1:5; and Galatians 1:15-16.

18. Apostolic Canon 66 permitted penitents to return to communion only on their deathbeds. As the name suggests, an Apostolic Canon is a teaching received directly from the Twelve Apostles.

19. 410 U.S. at 133 n.22.

20. "If some have spoken imprecisely, or for some reason unknown to us, even deviated from the right path, but no question was put to them nor did anyone challenge them to learn the truth—we admit them to the list of Fathers, just as if they had not said it, because of their righteousness of life and distinguished virtue and their faith, faultless in other respects. We do not, however, follow their teaching in which they stray from the path of truth." St. Photius, Letter to the Patriarch of Aquileia, quoted in, Haugh, Photius and the Carolingians, 136-137 (Belmont, Mass: Nordland, 1975); and Archbishop Philaret of Chernigov, 3 Historical Teaching of the Fathers of the Church, 254-255 (St. Petersburg, 1882).

21. Augustine of Hippo, On the Gift of Perseverance, ch. 68. See also, Fr. Seraphim Rose, The Place of Blessed Augustine in the Orthodox Church (Platina, California: St. Herman of Alaska Brotherhood, 1983).

22. See, Subcommittee on the Separation of Powers, Senate Committee on the Judiciary, The Human Life Bill, S. 158, 97th Cong., 1st Sess. 7-13 (1981).

23. United States v. Carolene Products Co., 304 U.S. 144, 152-153 n.4 (1938).

24. U.S. Const. amend. XIV, sec. 1 (emphasis supplied).

25. 410 U.S. at 157.

26. East and Valentine, Reconciling Roe v. Wade, in Horan, Grant, and Cunningham, Abortion and the Constitution, at 90 (Washington: Georgetown University Press, 1987).

27. 2 The Writings of Samuel Adams, 287-288 (New York: G.P. Putnam’s Sons, H.A. Cushing ed., 1904) (emphasis in original).

28. Clement of Alexandria, II Paedagogus, ch. X, 96, I.