760 / THE
HUMAN
PREDICAMENT:
FINDING
A WAY OUT
abortion on the grounds that it will encourage promiscu-
ity—
exactly
the
same reason given
in
Japan
for
banningthe pill and the IUD.
There
is no evidence to supporteither 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
ofunwanted
children.Many
Protestanttheologians
hold that
the time
when
a
child acquiresasoulisunknownandperhaps unimpor-
tant.
They see no
difficulty
in establishing it at the time of
"quickening,"
when movements of the fetus first becomediscernible
to the
mother;
or at the
time,
around
28
weeks, when the infant, if prematurely born, mightsurvive 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 idealcircumstances.
To a
biologist
the
question
of
when life
begins
for a
human
child
is
almost meaningless, since life
is
continu-
ous
and has been since it first began on Earth several
billion
years ago.Theprecursorsof the egg andspermcells 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
completehuman 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 thecrucial 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 nota^'person^within
the
meaning
of
thj[u.S.
Constitution)
untilit isbornandliving independentof 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
is
denied and the mother, contrary to her wishes, is forcedto devote her body and
life
to the production and care ofthe child. In Sweden, a study was made to determine
what
eventually happened to children born to motherswhose requests
for
abortions
had
been turned down.
When
compared
to a
group
of
children
from
similarbackgrounds
who had
been wanted, more than twice
as
many
of the
unwanted
youngsters grew
up in
undesirablecircumstances (illegitimate,
in
broken homes,
or in
institutions);
more than twice as many had records ofdelinquency,
or
were deemed
unfit
for
military service;almost twice as many had needed psychiatric care; andnearly
five
times
as
many
had
been
on
public assistanceduring their teens.*
6
In a 1975 study in Czechoslovakia, nine-year oldchildren whose mothers had been denied
abortions
were
compared
with carefully matched
"controls."
57
The
unwanted
children tendedtohave more problemsofhealth
and
social
adjustment
and to
perform less
well
in
school than did their peers who had been wanted.Further,itappeared thatthedisadvantagesofbeing
unwanted—initially,
at
least—affected
boys more
strongly
than girls.
There
seems little doubt thatthe
forced
bearingof
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 chancesthat it will realize its
full
potential are slight. Theargument that
a
decision
is
being made
for an
unbornpersonwho"hasnosay"is
often
raisedbythoseopposing abortion. But unthinking actions of the verysame
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 theymedical 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
giieuuc
v
r
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
dutiesare carried out by the Occupational Safety and HealthAdministration (OSHA).
The
National Institute
of Oc-
cupational 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 emer-
gency
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,
400chemicals,andOSHAandNIOSH were movingtochange them to permanent standards. Permanent stan-
dards
had
already been established
for
asbestos,
vinylchloride,
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
industryoflowering workers' exposuretohazardsandconsideration of the legitimate desires of workers to
protect
their health. In view of the large numbers of
people directlyorindirectly
involved (remember, haz-ardous 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 exam-ple, 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
com-
or
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 Statesserious,
enough
to
justify
compulsion, however.
The most compelling
arguments
that
might
be used to
justify
government regulation
of
reproduction
are based,
upon therapid population growth relativeto the
capacityof
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 repro-duction.
It is accepted that the law has as its proper
function
the
protection
of
each person
and
each group
of
people.
Alegal
restrictionon therighttohave more thanagiven
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 beand 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 theprivileges
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 itsjurisdictionthe
equal protection
of the
laws."
76
Joe D. Wray, Population pressure on
families:
Family
size
andchild-spacing, in
Roger
Revelle.
ed..
Rapid population growth:
Con-
sequence;
and policy implications,
Johns Hopkins
Press. Baltimore, 1971;
R.
B.
Zajonc,
Familyconfigurationand
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,
oxKex
ticvvn^s
\ae\rvg,
ec^ua\.
TYve
\av*
co\iYd
ncome
properly
savjo
a mother
that,
in order to protect thechildren
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
excessivenumbers
of
children produced
by
others._
Differing
rates
of
reproduction
among
groups
can
give
rise to
serious social problems.
For
example, differentialrates of reproduction between ethnic, racial, religious, or
economic
groups might result
in
increased competition
for
resources and political power and thereby underminesocial order.Ifsome individuals contributetogeneralsocial deterioration
by
overproducing
children,
and if theneedis
compelling, they
can be
required
by law to
exercise reproductive
responsibility—just
as
they
can be
required
to
excercise responsibility
in
their resource-consumption
patterns—
providing
they
are not
denied
equal
protection.
Individualrights.
Individual
rights
must
be
bal-
anced
against
the
power
of the
government
to
control
humanreproduction.
Somepeople—respected
legisla-
tors,
judges,
and
lawyers
included—have
viewed
the .
ripht to
have children
as a
fundamental
and
inalienableright.
Yet
neither
the
Declaration
of
Independence
nor_
rnJtConstimtioijmentions
a
righttoreproduce.Nordoesthe 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 heldthattherighttoprivacy includestherighttochoosewhether 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"inregulating pop-
ulation
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 lawstocontrol excessivereproduction could be enacted.
It
is
often
argued
that
tine
ti^cvt
to
Vvave
<3n.VXdTe.ti
\s
sopersonal
that
the
government
should
not
regulate
it. In an
ideal society, no doubt the state should leave family size
and
composition solelyto thedesiresof the
parents.
Intoday'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
FirstAmendment provision
for
separation
of
church
and
stateprevents 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 hasbeen made against
the
taxation
of
church property,prohibition
of
polygamy, compulsory education
of and
medical treatment
for
children,
and
many similar mea-sures that have been enacted. Fromalegal
standpoint,
the
First
Amendment argument
against family-size reg-ulationisdevoidofmerit.
There
are two valid constitutional limitations on the
kinds of
population-control policies that could
be en-
acted.
First,
any enactments must
satisfy
the require-ments
of due
process
of
law; they must
be
reasonablydesigned
to
meet real problems,
and
they must
not be
arbitrary. Second, any enactments must ensure that equalprotection under the law is
afforded
to every
person;
theymust
not be
permitted
to
discriminate against
any
particular group or person.
This
should be as true of lawsgiving 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 theimpact
of the
laws must
be
exactly
the
same
on
everyone.
A
law
limiting each couple
to two
children obviouslywould 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 limitationspreclude the passage of capricious or discriminatorylaws, neither guarantees anyone the right to have morethan
his or her
fair
share
of
children,
if
such
a
right
is
shown to conflict with other rights and freedoms.
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