Eco Science - Eleven - Constitution References

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/ THE HUMAN PREDICAMENT: FINDING A WAY OUT

abortion on the grounds that it will encourage promiscuity— exactly the same reason given in Japan for banning the pill and the IUD. There is no evidence to support either point of view on promiscuity, but, even if there were an increase, it would seem a small price to pay for a chance to ameliorate the mass misery of unwanted pregnancies—especially since the main ostensible reason for social disapproval of promiscuity is the production of unwanted children. Many Protestant theologians hold that the time when a child acquires a soul is unknown and perhaps unimportant. They see no difficulty in establishing it at the time of "quickening," when movements of the fetus first become discernible to the mother; or at the time, around 28 weeks, when the infant, if prematurely born, might survive outside its mother's body. To them, the evil of abortion is far outweighed by the evil of bringing into the world an unwanted child under less than ideal circumstances. To a biologist the question of when life begins for a human child is almost meaningless, since life is continuous and has been since it first began on Earth several billion years ago. The precursors of the egg and sperm cells that create the next generation have been present in the parents since they were embryos themselves. To most biplogistSj an embryo or a fetus is no more a complete human being than a blueprint is a complete building.553 The_fetus, given the opportunity to develop properly before birth, and given the essential early socializing,, experiences and sufficient nourishing food during the crucial early years after birth, will ultimately develop __ into a human being. Where any of these is lacking, the_ resultant individual will be deficient in some respect. From this point of view, a fetus is only a potential human being, with no particular rights. Historically, the law has dated most rights and privileges from the moment of birth, and legal scholars generally agree that a fetus is not a^'person^within the meaning of thj[u.S. Constitution) until it is born and living independent of its mother. From the standpoint of a terminated fetus, it makes no difference whether the mother had an induced or a spontaneous abortion. On the other hand, it subsequently makes a great deal of difference to the child if an abortion giieuuc v r

is denied and the mother, contrary to her wishes, is forced to devote her body and life to the production and care of the child. In Sweden, a study was made to determine what eventually happened to children born to mothers whose requests for abortions had been turned down. When compared to a group of children from similar backgrounds who had been wanted, more than twice as many of the unwanted youngsters grew up in undesirable circumstances (illegitimate, in broken homes, or in institutions); more than twice as many had records of delinquency, or were deemed unfit for military service; almost twice as many had needed psychiatric care; and nearly five times as many had been on public assistance during their teens.*6 In a 1975 study in Czechoslovakia, nine-year old children whose mothers had been denied abortions were compared with carefully matched "controls."57 The unwanted children tended to have more problems of health and social adjustment and to perform less well in school than did their peers who had been wanted. Further, it appeared that the disadvantages of being unwanted—initially, at least—affected boys more strongly than girls. There seems little doubt that the forced bearing of unwanted children has undesirable consequences not only for the children and their families, but for society as well, apart from the problems of overpopulation. The latter factor, however, adds further urgency to the need for alleviating the other situations. An abortion is clearly preferable to adding one more child to an overburdened family or an overburdened society, where the chances that it will realize its full potential are slight. The argument that a decision is being made for an unborn person who "has no say" is often raised by those opposing abortion. But unthinking actions of the very same people help to commit future unheard generations to misery and early death on an overcrowded planet. One can also challenge the notion that older men, be they medical doctors, legislators, or celibate clergymen, have the right to make decisions whose consequences are borne largely by young women and their families. There are those who claim that free access to abortion 56 Lars Huldt, Outcome of pregnancy when legal abortion is readily available. 57 Z. Dytrych, et al.; Children born to women denied abortion.

CHANGING AMERICAN INSTITUTIONS / 837

provide training programs, and to set up a system for reporting occupational illness and injury. These duties are carried out by the Occupational Safety and Health Administration (OSHA). The National Institute of Occupational Safety and Health (NIOSH) does research for and recommends standards to OSHA. Three types of standards for exposure to pollutants can be set by OSHA: consensus standards adopted from a list provided by a group of government and industrial scientists, permanent standards, and temporary emergency standards. Permanent standards generally include, in addition to the eight-hour limits for worker exposure provided by consensus standards, regulations covering work practices, monitoring, and medical surveillance. Temporary standards are effective only for a six-month p , an interim during which permanent standards are developed. By 1975, consensus standards had been set for about, 400 chemicals, and OSHA and NIOSH were moving to change them to permanent standards. Permanent standards had already been established for asbestos, vinyl chloride, and a group of fourteen carcinogens; and permanent standards have been proposed for arsenic, coke-oven emissions, and noise. Some groups feel that those standards are not stria enough; for example, a chemical workers union unsuccessfully challenged in court those established for the fourteen carcinogens. It seems certain that a constant tug-of-war will ensue between consideration of the costs (real or imagined) to industry of lowering workers' exposure to hazards and consideration of the legitimate desires of workers to protect their health. In view of the large numbers of people directly or indirectly involved (remember, hazardous materials like asbestos and plutonium can be taken home inadvertently by workers, placing their families and friends at risk), it seems clear that OSHA's activities are a long-overdue step in the right direction.

Population Law • impact of laws and policies on population size and growth has, until very recently, largely been ignored by the legal profession. The^jjrst comprehensive treatment of population law was that of the late Johnson C.

/ 4 an arrnrnev who was president of Zero Population Growth^and whose ideas are the basis of much of the following discussion. To date, there has been no serious attempt in Western countries to use laws to control excessive population growth, although there exists ample authority under which population growth could be regulated. For example, under the United StatesCConstitutionJ effective^ population-control programs could be enacted U n df the clauses that empower Congress to appropriate funds to provide for the(general welfare and to regulate comor under the equal-protection clause of the Fourteenth Amendment.^5 Such laws constitutionally could be very broad. Indeed, it has been concluded thaL compulsory population-control laws, even including laws requiring compulsory abortion, could be sustained. under the existing Constitution if the population crisis, became sufficiently severe to endanger the society. Few today consider the situation in the United States serious, enough to justify compulsion, however. The most compelling arguments that might be used to justify government regulation of reproduction are based, upon the rapid population growth relative to the capacity of environmental and social systems to absorb the associated impacts. To provide a high quality of life for all, there must be fewer people. But there are other sound reasons that support the use of law to regulate reproduction. It is accepted that the law has as its proper function the protection of each person and each group of people. A legal restriction on the right to have more than a given number of children could easily be based on the needs of the first children. Studies have indicated that the larger the family, the less healthy the children are likely to be and the less likely they are to realize their potential levels of achievement.76 Certainly there is no question that children of a small family can be cared for better and can "Population explosion and United States law. ""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." 76 Joe D. Wray, Population pressure on families: Family size and child-spacing, in Roger Revelle. ed.. Rapid population growth: Consequence; and policy implications, Johns Hopkins Press. Baltimore, 1971; R. B. Zajonc, Family configuration and intelligence. Science, vol. 192, pp. 227-236 (April 16/1976).

838 / THE HUMAN PREDICAMENT: FINDING A WAY OUT

be educated better than children of a large family, income

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properly savjo a mother that, in order to protect the children she already has, she could have no more. (Presumably, regulations on the sizes of adopted families. would have to be the same.1 A legal restriction on the right to have children could also be based on a right not to be disadvantaged by excessive numbers of children produced by others._ Differing rates of reproduction among groups can give rise to serious social problems. For example, differential rates of reproduction between ethnic, racial, religious, or economic groups might result in increased competition for resources and political power and thereby undermine social order. If some individuals contribute to general social deterioration by overproducing children, and if the need is compelling, they can be required by law to exercise reproductive responsibility—just as they can be required to excercise responsibility in their resourceconsumption patterns— providing they are not denied equal protection. Individual rights. Individual rights must be balanced against the power of the government to control human reproduction. Some people—respected legislators, judges, and lawyers included—have viewed the . ripht to have children as a fundamental and inalienable right. Yet neither the Declaration of Independence nor_ rnJtConstimtioijmentions a right to reproduce. Nor does the UN Charier describe such a right, although a resolution of the United Nations affirms the "right responsibly to choose" the number and spacing of chil-n dren (our emphasis). In the United States, individuals have a constitutional right to privacy and it has been held that the right to privacy includes the right to choose whether or not to have children, at least to the extent that a woman has a right to choose not to have children. But the right is not unlimited. Where the society has a "compelling, subordinating interest" in regulating population size, the right of the individual may be curtailed. If society's survival depended on having more children, women could be required to bear children, just as men can constitutionally be required to serve in the armed forces. Similarly, given a crisis caused by overpopula-

tion, reasonably necessary laws to control excessive reproduction could be enacted. It is often argued that tine ti^cvt to Vvave <3n.VXdTe.ti \s so personal that the government should not regulate it. In an ideal society, no doubt the state should leave family size and composition solely to the desires of the parents. In today's world, however, the number of children in a family is a matter of profound public concern. The law regulates other highly personal matters. For example, no one may lawfully have more than one spouse at a time. Why should the law not be able to prevent a person from having more than two children? The legal argument has been made that the First Amendment provision for separation of church and state prevents the United States government from regulating family size. The notion is that family size is God's affair and no business of the state. But the same argument has been made against the taxation of church property, prohibition of polygamy, compulsory education of and medical treatment for children, and many similar measures that have been enacted. From a legal standpoint, the First Amendment argument against family-size regulation is devoid of merit. There are two valid constitutional limitations on the kinds of population-control policies that could be enacted. First, any enactments must satisfy the requirements of due process of law; they must be reasonably designed to meet real problems, and they must not be arbitrary. Second, any enactments must ensure that equal protection under the law is afforded to every person; they must not be permitted to discriminate against any particular group or person. This should be as true of laws giving economic encouragement to small families as it would be of laws directly regulating the number of children a person may have. This does not mean that the impact of the laws must be exactly the same on everyone. A law limiting each couple to two children obviously would have a greater impact on persons who desire large families than it would on persons who do not. Thus, while the due-process and equal-protection limitations preclude the passage of capricious or discriminatory laws, neither guarantees anyone the right to have more than his or her fair share of children, if such a right is shown to conflict with other rights and freedoms.

CHANGING AMERICAN INSTITUTIONS / 839

It is often argued that a fetus or an embryo is a person who has a right to life, and therefore abortion as a birth-control measure must be rejected. Supporters of this argument point out that certain rights of a fetus have been legally recognized. For example, some states permit a fetus to recover money damages for personal injuries sustained before birth. Under some circumstances the common law has permitted a fetus, if subsequently born alive, to inherit property. The intentional killing of a fetus (through injury to the mother) has been declared by statute to constitute murder, although under the statute the fetus is not denned as a human being. Although some rights of the fetus after quickening have been protected in some states, most of those states require that the infant be born and living before the rights vested prior to birth actually are recognized and enforced. Most jurisdictions afford no protection to property rights or personal rights of the unquickened fetus, and no jurisdiction has protected the rights of embryos. Furthermore, analysis of the situations in which rights of the fetus have been recognized disclose that it is generally not the fetus's rights, but rather the rights of its parents or others that are being protected. For example, when a fetus did receive money damages for prenatal injuries, in reality it was the parents' and the society's economic interests that were being protected. Those who argue that a fetus has a right to life usually proceed from the assumption that life begins at or soon after conception. As stated elsewhere, the question, When does life begin? is misleading. Life does not begin; it began. The real question, from a legal as well as from religious, moral, and ethical points of view, is as follows: in what forms, at what stages, and for what purposes should society protect human life? Obviously overweight people regard their fat cells differently from their brain cells. A wandering sperm cell is not the same thing as a fertilized egg; nor is a fetus a child. Yet a fat cell, a sperm cell, a fetus, a child, an adult, and even a group of people are all human life. The common law and the drafters of the U.S. Constitution did not consider a fetus a human being. Feticide was not murder in common law because the fetus was not considered to be a human being, and for purposes of the Constitution a fetus is probably not a "person" within

the meaning of the Fourteenth Amendment. Thus, under the Constitution, abortion is apparently not unlawful, although infanticide obviously is. This is a very important distinction, particularly since most rights, privileges, and duties in our society are dated from birth and not from some earlier point in time. Capacity to contract, to vote, to be drafted, to obtain Social Security rights, drivers' licenses, and the like, are all dated from birth, which is a very convenient, relatively definite point in time from which to date most rights. Certainly, the moment of birth is easier to ascertain than the moment of conception, implantation, or quickening. Such an easily ascertainable point in time is a sensible point from which to date Constitutional rights, which should not depend upon imprecisions. le fact that a fetus is probably not a "person" with (Constitutional right^ does not, however, mean that _ society has no interest in the fetus. Society does have an . interest in pnsnring that an appropriate number of healthy children are born.. To protect the health of the mother, some regulation of abortion is still necessary and appropriate. For example, laws requiring that abortions be performed only by qualified medical personnel in appropriately licensed institutions now exist in most states, and there are regulations governing eligibility for insurance or other financial aid. \ Legal reform.) In predecessors of this book, we recommended a series of reasonable, constitution^)- and desirable legal cha"g^ '" the- Unit-pf] fif^t-ps tn f age population growth; 1. A federal statute could be enacted that would prohibit any restrictions on safe, voluntary tion, sterilization, and abortion, and the dissemination of information about them._ 2. State and federal governments could subsidize voluntary contraception, sterilization, and abortion, Laws cnuld require that birth-control clinics be opened at public expense in all suitable locations. They could also require that group and individual health insurance policies cover the costs of abortion and sterilization. . Tax laws could be revised, and new laws could be passed that would provide incentives for late marriage,

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CHANGING AMERICAN INSTITUTIONS// 857

doggie, convinced Congress that the SST's disadvantages outweighed its very questionable advantages, and the U.S. program was killed in 1971. In 1975 the debate began anew when rights to land in the United States were requested for the AngloFrench SST, Concorde. The issue is still in doubt, but several things are apparent— the Concorde is extremely noisy, fuel-inefficient, and probably uneconomical. If it remains in service, it will be as a monument to government stupidity and the momentum of technological circuses. Government Planning The fragmentation of responsibility amonfi fioverniqent agencies in the United States makes a reasonable response to problems extremely difficult and planning to avert them virtually impossible. The lack of overall control of environmental matters and the virtual sibilitv of dealing with problems in any coordinated way are illustrated by the area of urban affairs., aspects of which now rnmp tinder the iurisHicrinns of the Department of Housing and Urban Development, the Department of Health, Education and Welfare, as well as the Departments of Labor, Commerce, Interior, Tustice, and Transportation, to name just the major ones. It is clear that the executive branch of the federal government badly needs reorganizing. Such coordinated planning as takes place in the federal government is largely confined to the preparation and review of the annual federal budget. It is fair to say that the time horizons considered in this process are typically short and the emphasis on conventional economic indicators heavy. Resource and environmental matters accordingly receive less attention than they deserve.111" Some detailed suggestions on reforming the political structure of the United States to make it more responsive to the requirements of the population-resource-environment situation may be found in the booklArk 7/|"2 We

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'""A sense of the planning inputs to and implications of the federal budgeting process is conveyed in the series of volumes, Selling national priorities, published annually by the Brookings Institution since 1970. The 1976 volume, edited by Henry Owen and Charles L. Schultze, takes a longer-range perspective (10 years) on issues raised by the budget, and examines tie problems of coordinated long-range planning in a government of divided powers. 1I2 Pirages and Ehrlich.

discuss only one such reform here: the institutionalization of government planning. Thej^enter ibr the Study of Democratic Institutions^ has an ongoing project under the direction of R. G. Tugwell, designed to produce a modern constitution for the United States.^ The proposed constitution, now in its, thirty-third draft^ deserves wide circulation and study. One of the features of the Tugwell constitution is a planning branch of the governmejit, with the mission of doing long-range planning. As should be apparent from the preceding discussion, without planning we believe there is little chance of saving civilization from a downward spiral of deepening social and environmental disruptions and political conflicts. Human societies have shown little aptitude for planning so far, but it is a skill that must soon be developed.112" A private organization, California Tomorrow, sponsored a group of planners who produced a document that might serve as a preliminary model for the kind of planning that can be done. The California tomorrow plan: A first sketch presents a skeletal plan for The future nfthe^ state of California.113 It describes "California zero," the California of today, and two alternative futures: California I is a "current-trends-continue" projection; California II is a projection in which various alternative courses of action are followed. The plan considers twenty-two major problem areas, including population growth and various kinds of environmental deterioration, and looks at both the causes of the problems and policies to ameliorate them. California I is compared with California II, and suggestions for phasing into the California II projection are given. The details of the plan need not concern us here, but the subjects of concern in the plan are roughly those of this book. What is encouraging is that a private organization could put together a comprehensive vision of the future of one of the largest political entities in the world, proving that intelligent, broad-spectrum planning can be done. "2;1A series of important books on the tools and prospects for comprehensive governmental planning appeared in 1976 and 1977 under the authorship of social scientist and modeler Peter W. House and colleagues: House, The quest for completeness; House and Williams, The carrying capacity of a nation; House and McLeod, Large scale models for policy evaluation; House, Trading-off environment, economics, and energy. '"Alfred Heller, ed, The California tomorrow plan.

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