Byrn v. New York City Health & Hospitals Corp.

31 N.Y.2d 194 | NY | 1972

Lead Opinion

Breitel, J.

This is an action for declaratory judgment by a guardian ad litem for unborn children to declare the 1970 abortion “liberalization” statute unconstitutional (L. 1970, ch. 127). Plaintiff obtained a temporary injunction at Special Term to restrain defendants from “ performing any abortional acts ” except where the mother’s life was endangered. The temporary injunction was stayed pending appeal, and on appeal the Appellate Division, by a divided court, reversed, vacated the injunction, and remanded the case to Special Term to enter a declaratory judgment sustaining the validity of the statute. It in effect granted summary judgment. No party questions the procedure.

The issue, a novel one in the courts of law, is whether children in embryo are and must be recognized as legal persons or entities entitled under the State and Federal Constitutions to a right to life. It is not effectively contradicted, if it is contradicted at all, that modern biological disciplines accept that upon conception a fetus has an independent genetic “ package ” with potential to become a full-fledged human being and that it has an autonomy^ of development and character although it is for the period of gestation dependent upon the mother. It is human, if only because it may not be characterized as not human, and it is unquestionably alive.

The issue has heen debated below and in this court on two levels. The first level turns on the legal history of the concept of persons in the law and of the act of abortion. That history is spelled out beyond the need for repetition or elaboration in the majority opinion at the Appellate Division. The answer is clear enough. Unborn, and even unconceived, children have been recognized as acquiring rights or interests in narrow legal categories involving the inheritance or devolution of property (e.g., Endresz v. Friedberg, 24 N Y 2d 478, 483). Fetuses, if they are born alive, have been entitled in modern times to recover in tort for injuries sustained through the host mother (Woods v. Lancet, 303 N. Y. 349, 352-356; Kelly v. Gregory, 282 App. Div. 542, 543). Indeed, unconceived children have been represented in proceedings affecting property by guardians ad litem (SCPA 315; Ann., Trust — Invasion of Corpus, 49 ALR 2d 1095).

But unborn children have never been recognized as persons in the law in the whole sense. In ancient days it was even said that they were not in rerum natura. As for abortion, when the act has been made criminal or otherwise unlawful in the law, the direct design was evidently to protect the mother from injury and dangerous practices (Means, The Phoenix of Abortional Freedom, 17 New York Law Forum 335). It has been argued, of course, that anti-abortion laws were also designed to protect the fetus; but the argument is hard to sustain so long as there have been provisions that limited unlawful abortions to pregnancies after ‘' quickening ’ ’ and abortions have been justified to protect the mother even though it meant destruction of the fetus.

In any event, the historical analysis is interesting, not determinative, and only of limited influence. Both those who attack the present statute and those who defend it must and dó rély ultimately on modern science and particularly modern asepsis and techniques to mount their attacks or defend their positions.

The second level of debate is the real one, and that turns on whether a human entity, conceived but not yet born, is and must be recognized as a person in the law. If so, it is argued that the person is immediately subsumed under the class entitled to constitutional protection, it being assumed that an entity if treated anywhere in the law as a person must be so treated for all purposes. Issue is never really joined at this level because the antagonists are talking about different things although they use the same terminology. Conceptually, whether in philosophy or in religious doctrine, and the doctrine is not confined to any one religion, a conceived child may be regarded as a person, albeit at a fetal stage. It is not true, however, that the legal order necessarily corresponds to the natural order (see, e.g., Bertholf v. O’Reilly, 74 N. Y. 509, 514-515). That it should or ought is a fair argument, but the argument does not make its conclusion the law. It does not make it the law anymore than that the law by recognizing a corporation or a partnership as persons, or according property rights to unconceived children, make these “ natural ” nonentities facts in the natural order.

When the proposition is reduced to this simple form, the difficulty of the problem is lessened. What is a legal person is for the law, including, of course, the Constitution, to say, which simply means that upon according legal personality to a thing the law affords it the rights and privileges of a legal person (e.g., Kelsen, General Theory of Law and State, pp. 93-109; Paton, Jurisprudence [3d ed.], pp. 349-356, esp. pp. 353-354 as to natural persons and unborn children; Friedmann, Legal Theory [5th ed.], pp. 521-523; Gray, The Nature and Sources of the Law [2d ed.], ch. II). The process is, indeed, circular, because it is definitional. Whether the law should accord legal personality is a policy question which in most instances devolves on the Legislature, subject again of course' to the Constitution as it'has been “ legally ” rendered. That the legislative action may be wise or unwise, even unjust and violative of principles beyond the law, does not change the legal issue or how it is to be resolved. The point is that it is a policy determination whether legal personality should attach and not a question of biological or “ natural ” correspondence.

The principles were aptly illustrated by Gray:

‘ ‘ Included in human beings, normal and abnormal, as legal persons, are all living beings having a human form. But they must be living beings; corpses have no legal rights. Has a child begotten, but not born, rights? There is no difficulty in giving them to it. A child, fi e minutes before it is born, has as much real will as á child five minutes after it is born; that is, none at all. It is just as easy to attribute the will of a guardian, tutor, or curator to the one as to the other. Whether this attribution should be allowed, or whether the embryo should be denied the exercise of legal rights, is a matter which each legal system must settle for itself. In neither the Roman nap the Common Law can. a child in the womb exercise any legal rights.

“ But putting an end to the life of an unborn child is generally in this country an offence by statute against the State; and in our Law a child once born is considered for many purposes as having been alive from the tipie it was begotten.” (op. cit., supra, at pp. 38-39).

Paton, cited above, is worth repeating in some detail:

“ In ancient systems not all human beings were granted legal personality. The case of the slave is too well known to need stressing. A monk who enters a monastery is regarded in some systems as being ‘ civilly dead ’ and his property is distributed just as if death had in fact taken place. In modern times it is normal to grant legal personality to all living within the territory of the State.

‘ ‘ Most systems lay down the rule that, in cases where legal personality is granted to human 'beings, personality begins at birth and ends with death.

‘ ‘ In the case of birth, most systems require complete extrusion from the mother’s body — the child in the womb is not a legal personality and can have no rights. For some purposes, however, the maxim nasciturus pro lam nato habetur takes effect. In the civil law the fiction was invented that in all matters affecting its interests the unborn child in útero should be regarded as already born, but English law applies this fiction only for the purpose of enabling the child if it is born to take a benefit. It is thought reasonable that a child who has lost his father should not be further penalized by losing any interest which he would have secured had he been alive at his father’s death.

“ In English law it is still doubtful whether an infant born alive can recover for injuries inflicted before birth. To prove in fact a causal link between the negligence and the particular injury may well be difficult, but, if this hurdle can be surmounted, there seems to be no conclusive reason why recovery should be denied. The law relating to child killing is too intricote for survey in short terms. A child must be completely born alive before the rules of murder will protect it, for murder is the killing of a reasonable person in being. If, however, the prisoner intentionally inflicts serious injury on a child in the womb, and the child is bom alive and then dies from the injuries, this is murder. But these rules, even when coupled with the prohibition of abortion, left too many opportunities for child destruction. For example, if a child was killed during the process of birth it was not murder at common law, since the whole body of the child must be extruded before it becomes a person.” (op. cit., supra, at pp. 353-354).

Moreover, plaintiff of necessity occupies a less than completely consistent position. He agrees that abortion is justified to save the mother’s life because it is one life for another. But that is not satisfactory. Necessity may justify in the law every kind of harm to save one’s life, except to take the life of an innocent. Before the law one life is as good as another, saint or sinner, genius or imbecile, child or adult. Besides, if the contrary were true, should not the one to lose his life be entitled to notice and hearing through a guardian ad litem, as would be done with any child’s property rights, born or unborn?

There are, then, real issues in this litigation, but they are not legal or justiciable. They are issues outside the law unless the Legislature should provide otherwise. The Constitution does not confer ór require legal personality for the unborn; the Legislature may, or it may do something less, as it does in limited abortion statutes, and provide some protection far short of conferring legal personality.

Accordingly, the order of the Appellate Division should be affirmed without costs.

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Concurrence Opinion

Jasen, J.

(concurring). I concur in Judge Breitel’s opinion, but merely add the following to underscore my position in light of the dissenting opinions.

Plaintiff has been appointed guardian ad litem for the infant “ Roe ” and all similarly situated members of a class of unborn infants of less than 24 weeks’ gestation scheduled for abortion in public hospitals under the operation and control of the defendant. On this appeal, it is his contention that chapter 127 of the Laws of 1970, amending section, 125.05 (subd. 3) of the Penal Law, violates the constitutional rights of his wards and that the child en ventre sa mere is a legal person protected by the Fifth and Fourteenth Amendments of the Federal Constitution and, as such, cannot be deprived of life without due process or denied the equal protection of New York’s laws. Respondents, on the other hand, urge that a fetus of less than 24 weeks’ gestation is not a legal person within thq constitutional protections.

To those, who contend, as- plaintiff does, that biological and legal “ life ” arise in their full.“ human ” sense at conception, the issue is settled. (See, e.g., Steinberg v. Brown, 321 F. Supp. 741 [N. D., Ohio]; Drinan, The Inviolability of the Right To Be Born, 17 Western Res. L. Rev. 465; Brown, Recent Statutes and the Crime of Abortion, 16 Loyola L. Rev. 275; Louisell, Abortion and Due Process, 16 U. C. L. A. L. Rev. 233; Noonan, The Constitutionality of the Regulation of Abortion) 21 Hastings L. J. 51.) On the other hand, to those whp regard conception as the creation of life of less-than-human status, the " controversy has merely begun.” (Sikora, Abortion: An Environmental Convenience or a Constitutional Right?, 1 Environmental Affairs [Boston College Law School Environmental Law Center] 469, 493 et seq.; People v. Belous, 71 Cal 2d 954, cert. den. 397 U. S. 915; cf. Doe v. Bolton, 319 F. Supp. 1048 [N. D., Ga.], jurisdiction postponed to hearing on the merits 402 U. S. 941; Roe v. Wade, 314 F. Supp. 1217 [N. D., Tex.], jurisdiction postponed to hearing on the merits 402 IT, S. 941; see Giannella, The Difficult Quest for a Truly Humane Abortion Law, 13 Vill. L. Rev. 257.) Thus, we are asked to choose, as a matter of law, between extreme positions and competing values that concededly may be metalegal, mindful of Justice Holmes’ admonition in his now vindicated dissent¹ in Lochner v. New York (198 U. S. 45, at p. 76) that the Constitution “is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”

As Judge Bbeitel’s opinion recognizes, the formidable task of resolving this issue is not for the courts. Bather, the extent to which fetal life should be protected “ is a value judgment not committed to the discretion of judges, but reposing instead in the representative branch of government. ’ ’ (Corkey v. Edwards, 322 F. Supp. 1248, 1253-1254; see, also, American Federation of Labor v. American Sash & Door Co., 335 U. S. 538, 557 [Frankfurter, J.]; cf. Clark, Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola [L. A.] L. Rev. 1.) Since the Constitution does not prohibit the determination made by the Legislature and there is a reasonable basis for it, the validity of the statute should be sustained. I would merely note that law is not unprincipled because it does not embrace all principles, and it would be a spiritless universe in which the law embraced all principles. This has been the teaching of western civilization and its great religions.

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Dissenting Opinion

Burke, J.

(dissenting). As I stated in Robin v. Incorporated Vil. of Hempstead (30 N Y 2d 347, 352) chapter 127 of the Laws of 1970 is not a valid exercise of legislative power. The majority opinion states the issue as: “ whether the law should accord legal personality is a policy question^* which in most instances devolves on the Legislature, subject again of course to the Constitution as it has been ‘ legally ’ rendered ”.

This argument was not only made by Nazi lawyers and Judges at Nuremberg, but also is advanced today by the Soviets in Eastern Europe. It was and is rejected by most western world lawyers and Judges because it conflicts with natural justice and is, in essence, irrational. To equate the judicial deference to the wiseness of a Legislature in a local zoning case with the case of the destruction of a child in embryo which is conceded to be “ human ’ ’ and ‘ is unquestionably alive ” is an acceptance of the thesis that the “ State is supreme ”, and that “ live human beings ” have no inalienable rights in this country. The most basic of these rights is the right to live, especially in the ease of the ‘ unwanted ’ ’ who are defenseless. The late Chief Judge Lehman once wrote of these rights: “ The Constitution is misread by those who say that these rights are created by the Constitution. The men who wrote the Constitution did not doubt that these rights existed before the nation was created and are dedicated by God’s word. By the Constitution, these rights were placed beyond the power of Government to destroy.” In other words, what the Chief Judge was saying was that the American concept of a natural law binding upon government and citizens alike, to which all positive law must conform, leads back through John Marshall to Edmund Bubke and Henby de Bbacton and even beyond the Magna Carta to Judean Law. Human beings are not merely creatures of the State, and by reason of that fact, our laws shpuld protect the unborn from those who would take his life for purposes of comfort, convenience, property or peace of mind rather than sanction his demise. Moreover, if there is a confiscation of property through a zoning law, it is “ constitutionally ” invalid. Recently, the United States Supreme Court held that the taking of a life of a murderer by a State was constitutionally invalid, and in the words of one Justice, was found to be “ immoral and therefore unconstitutional ” (Furman v. Georgia, 408 U. S. 238, 364-366 [Marshall, J., concurring]).

The Attorney-General argues that the legislative determination in choosing between the competing values involved herein is a value judgment committed to the legislative process of government, not to the discretion of the judiciary. Furthermore, it is argued that there is a legitimate State interest in a woman’s right of privacy and in the undesirable effect of unwanted children upon society. (See Lexogram, Vol. 4, No. 10.) Upon scrutiny, these arguments are not persuasive, and the legislation cannot stand for two reasons — it is irrational and unconstitutional.

The irrationality of the legislation in question has several aspects. In view of modern and reliable contraception devices, there is no reason for unwanted conceptions to take place that would cause an exceptional population growth. Secondly, the argument that these unborn children are unwanted is fallacious as there are many, many families presently interested in adoption, who would be more than happy to welcome such an infant into their home. Thirdly, as we reach zero population growth, the^e is no compelling State interest to support the abortion legislation. Additionally, two other frequently raised arguments by proponents of abortion cannot withstand scrutiny. Thus, the plaint regarding women dying from botched abortions under the old law is easily answered. Examples of due justice for foetuses are more merciful than the unbounded exercise of pity for those few unfortunate pregnant women who fall into the hands of the few inexpert doctors. Thousands of illegal abortions were performed in Few York City hospitals under the old law without fatalities but with serious side effects. To overcome this self-created problem by destroying hundreds of thousands of foetuses by State law is uncivilized. At best, a few human beings are only possibly wholly preserved from a fate set in motion by themselves at the sacrifice of hundreds of thousands and soon millions of other human beings. For can the old abortion law be said to be an interference with a physician’s right to practice his profession. The old abortion law sanctioned therapeutic abortion when medically indicated, thus enabling the physician to save the life of the mother in extreme circumstances.

The more telling fact than the present legislation’s irrationality is its unconstitutionality. The unconstitutionality stems from its inherent conflict with the Declaration of Independence, the basic instrument which gave birth to our democracy. The Declaration has the force of law and the constitutions of the United States and of the various States must harmonize with its tenets. The Declaration when it proclaimed “ We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness ” restated the natural law. It was intended to serve as a perpetual reminder that rulers, legislators and Judges were without power to deprive human beings of their rights.

Unless there had been a Thomas Jefferson who was educated by a philosophy professor to know the primacy of the natural law — there would be no United States of America. For, if the Declaration had been written by a pragmatist for expedient reasons we never could have enlisted the sympathies and agreement of such a large part of the then world, including members of the British Parliament in our righteous cause. They would know the pragmatic reasoning would be nothing more than pettifoggery, and had no basis in law.

We began our legal life as a Nation and a State with the guarantee that these were inalienable rights that come not from the State but from an external source of. authority superior to the State which authority regulated our inalienable liberties and with which our laws and Constitutions must now conform. That authority alone establishes the norms which test- the validity of State legislation. It also tests the Constitutions and the United Nations Convention against genocide which forbids any Nation or State to classify any group of living human beings as fit subjects for annihilation. In sum, there is the law which forbids such expediency. It is the inalienable right to life in the nature of the child embryo who is “ a human ” and is “ a living being Inalienable means that it is incapable of being surrendered (Webster’s Third New International Dictionary). Thus, the butchering of a fo.etus under the present law is inherently wrong, as it is an illegal interference with the life of a human being of nature.

The report of the Governor’s commission explanation that it was not dealing with * ‘ morality ’ ’ but only law, overlooked the fact that it turned its back on the law — the natural law reiterated in the Declaration of Independence. The reasons given for the enactment of the present abortion law are irrational from a medical, scientific and factually objective analysis. There is no need for abortion except in very limited medical circumstances.

Chapter 127.of the Laws of 1970, authorizing abortion “on demand ” is a resort to expediency which is recognized everywhere as the death of principle. The rationale of the majority opinion admits that customs do change and the Legislature could, if it should in the future be the attitude of the Legislature, do away with old folks and eliminate the great expense the aged are to the taxpayers. This, of course, would parallel the Hitler laws which decreed the death of all the inmates of mental hospitals and also decreed that for many purposes non-Aryans were nonpersons.

Chief Judge Lehman’s understanding of inalienable rights is the only understanding that makes any sense out of the Declaration of Independence, the Magna Carta, the Bill of Rights and the United Nations Convention against genocide.

According to the majority opinion, valid law is a merger of legislative and executive emotions, whims and hunches — announced today and perhaps changed tomorrow. One’s rights are never permanent as the existence of the natural law is denied. The majority suggests that all law is man made. Such a philosophy of law we know would not attract persons educated in philosophy. Others, however, are attracted by pragmatism. This is just as dangerous as expediency because certain individuals think: we are realistic and self-sufficient — this legislation will control population growth and assist the taxpayers. This pragmatism, of course, is masked by a contrived theory exemplified in Abele v. Markle (342 F. Supp. 800) of giving the right of privacy of the woman an absolute paramountcy over the inalienable right of the foetus to life. On that false and unsupported premise (as I shall point out later) it then cites Griswold v. Connecticut (381 U. S. 479). That citation is inapposite. Here there are three people with different interests involved. The man, the woman and the foetus. The foetus has the superior ‘ ‘ right to life ’ ’ rather than the particular female’s or male’s concern to avoid responsibility. The proponents of abortion know that there are men who desire offspring for the joy as well as the responsibility they bring. The protection of the foetal life has been the concern of law givers even before the judicial Law of Moses, the great law giver (the Ten Commandments) down through the ages. Even in barbaric ages this was the law (see de Bracton, Sir Matthew Hale, Fleta, Sir Edward Coke, Sergeant Hawkins, Sir William Blackstone).

Under New York State law the foetus, if it is born, is entitled to posthumously share in a deceased husband’s intestate estate. This legislation gives the “ right ” to the wife to unilaterally, through abortion, appropriate the husband’s entire estate by preventing offspring and depriving the legally wedded husband of transmission of his blood line, name and properties to * ‘ flesh of his flesh ”: another inalienable right.

The proponents of abortion take refuge in concocted distinctions as to what living human beings are persons and what living human beings are not persons — to justify the massacre of the innocents, over 400,000 in New York State this year. They belittle Ckitty, Coke and twist the statements of Hake to try to persuade those who, as did the author of the Declaration of Independence, recognize that the natural law granted inalienable rights to human living beings. They demand that the natural law expressed in the Declaration of Independence on which the United States is founded, should be ignored for expedient reasons. The pragmatists have a remarkable capacity for bearing the suffering of others with equanimity so long as the suffering is not imposed on them. They are just as callous toward their fellow human beings (they all started as foetuses) as the parents who slaughtered their children in the earlier centuries. In that age parents engaged in wholesale slaughter of children for the same expedient reasons dictating this legislation, which is forbidden by the natural law (see P. Pringle, Hue and Cry, William Morrow and Company, Great Britain).

In view of the myriad methods of contraception now approved and fully utilized by females of all ages, the pronouncement in Abele v. Markle (342 F. Supp. 800, supra) that women after conception have the unquestioned right to make the sole decision to abort is contrary to the State’s responsibility to preserve and protect life. (Furman v. Georgia, 408 U. S. 238, 364 — 366, supra.) Thé contraception methods available today if used are more than sufficient to control population growth. Witness the fact that we have already reached zero population growth and possibly gone below it. The complete disrespect for the foetus’ right to life is in keeping with the cruelties which antedated the age of the lawmakers of Judaism, and certainly is a return to the barbarism of the English people of the early centuries (see P. Pringle, Hue and Cry, supra).

There is no medical or scientific doubt that foetuses are a group of human beings not a part of his or her mother. Every respected doctor, specializing in this field, treats the unborn child as a second patient different and individually distinct from the mother. Unless we intend to indorse the totalitarian philosophy already practiced of destroying the elderly, the insane, the newly born defective child or other groups of “ lesser quality ” as defined by the “ state ”, scrap the Declaration of Independence, distort the meaning of the Fifth and Fourteenth Amendments, we should find-this legislation constitutionally invalid.

The Appellate Division arrived at the obvious contradiction that even though the foetus is a human being with “ a separate life from the moment of conception ”, it need not be considered a person under the Fifth Amendment. Again the Appellate Division adopted the theory that the State is supreme and free to degrade the inalienable rights of human beings which were not given to them by the State and cannot be diminished nor taken away by the State. The Appellate Division and the majority agree that the “ state ”, as in Nazi Germany, could decide what human beings are persons or nonpersons. Human beings are not created by any woman unilaterally — only with the aid of viable semen. Men and women can have intercourse thousands of times and fail to create a foetus. The woman and the man, not only the State, are obliged to recognize the inalienable rights that issue out of the uncontroversial factors flowing out of one’s humanity. There is the sanctity of human life. To pass a law authorizing foetuses’ destruction is akin to establishing a State religion which conflicts with the rights given to those conceived in our democracy. To state that the present law does not violate the freedom of conscience of those who believe abortion to be a crime while the public revenues and public institutions are used is to resurrect the disgraceful argument that the citizens of Nazi Germany knowing of the death camps had an individual freedom of conscience to shrug off the atrocities of Dachau, Auschwitz and the other death camps. The question answers itself once we look at that society under Hitler.

The deeper disease in this legislation is the widening gap between the American self-image of a country that values human Ufé and the reality of a growing preoccupation of the hedonists with a competitive drive for La Dolce Vita. Because some women of means have practiced abortion for years without regard for the then existing laws or the consequences apart from death is no reason to legalize it and conduct a campaign among the poor to convince them that philosophically and biologically they can consider an unborn child as one not a distinct human being with an individual right to life.

The Presidential Commission on Abortion fails to distinguish between an unwanted and unplanned, birth and unwanted children. Adoptive agencies all over the United States have long waiting lists of prospective parents eager for a baby. But there are no babies to adopt. Every baby in the United States being aborted because of an alleged belief that the infant is unwanted is being denied life on the basis of an untruth. Our society has for ages allowed the woman to discontinue a responsibility for the developing human organism when that organism has reached a stage of development at which this responsibility can be transferred to another. The argument in Abele v. Markle (342 F. Supp. 800, supra) completely evades this option and relies entirely on the concept that a woman’s body is “ private property ” to be used as she wishes without interference from the inalienable rights of the unborn which was created when she chose to use her body in conjunction with the body of a man. I remind you that the woman’s body, her “private property”, cannot unilaterally create a foetus — nor can the body of a man. Incidentally if it is “ private property ’ ’ public funds cannot be constitutionally directly or indirectly used by hospitals to dispose of the foetus. The premise relied on by the courts and the Legislature is a false premise because the issue is not whether the woman has a right to use her body as she wishes (of course she has and does) but rather, if perchance another human being is conceived, that human being has an inalienable right to life that neither she, nor the man, nor any State, has the legal power to destroy.

As long as the proponents of abortion, all of whom I assume condemn genocide, have no rational reason to refuse to assign the same principle of.natural law to abortion as they do to genocidé, they are inconsistent.

To sum up, conception can be legally avoided — adoption opportunties are enormous — abortion legislation except in rare medical cases is neither necessary, humanly acceptable, legal nor constitutional.

The fundamental nature of life makes impossible a classification of living, human being as nonpersons, who can be excluded from the protection of the Constitution of the United States so that their right to life can be taken from them in spite of the due process clause and equal protection clause. Such a classification is constitutionally suspect. The relationship between the classification excluding this human group of foetuses from the enjoyment of the right to life and the fabricated purposes for which the classification is made are so imperfect that it follows that the classification is clearly unconstitutional.

For instance, this abortion legislation gives the. woman the right without the knowledge of the man to destroy the foetus who has, under the New York State law, the right of inheritance for devolution of property if the father dies intestate. By this act the woman, if she should be the wife, would increase her share in the intestate estate by confiscating the inheritance rights of the foetus.

In answer to the concurring opinion of Judge Jasen, which was filed after this opinion, I merely add that there can be no debate or value judgment when the operating doctors and their nurses examine the bucket in the operating room. They should know they have destroyed living human beings, the remains of which are in the bucket. If they rely on the opinions of the self motivated, they should examine the exhibit at the Smithsonian Institute. The United Press International recently reported the birth of a foetus at 21 weeks in a New York hospital. Was it " less — than =— human ’ ’ ?

Accordingly the order of the Appellate Division should be reversed and chapter 127 of Laws of 1970 be declared unconstitutional.

* A policy in this case established in 1970 by one Assemblyman who switched his vote after the resolution was defeated through some unknown influence. The Legislature repealed the 1970 law and the law passed in 1972 by the Legislature was vetoed.

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Dissenting Opinion

Scileppi, J.

(dissenting). I concur in Judge Burke’s dissenting opinion. I would merely express this additional view.

It is my firm moral and legal belief that life begins at conception. At that moment a foetus attains existence, both in fact and in legal contemplation; it is a person entitled to all of the protection accorded by our State and Federal Constitutions. To conclude otherwise is to countenance genocide and subject our population to what the majority so casually categorizes a legislative determination of policy. As Judge Burke incisively observes, our republic was fashioned to prevent such abuses. Our system of government is rooted in the natural law and it is against those strictures that our legislation as well as our Constitutions must be judged.

That standard simply does not give sanction to the view that one life may be declared forfeit because of the whim of another. No rational mind can accept the proposition that a parent may order the destruction of his child because it is not born possessed of normal faculties; nor may the child, weary of the burden of an aged and infirm father or mother, condemn the parent to death. Neither has a right to life which is superior to that, of the other and both our people and their Legislature may not, as a matter of policy, authorize such malefaction. I can draw no conceptual distinction in the case of abortion.

I am not insensitive to the plight of those who would be forced to bring children into these troubled times and recognize that men and women have both a legal and ethical right to decide whether they wish to do so. Abortion is not, however, a legitimate mode of effectuating one’s choice. Contraceptive devices are readily available and pregnancy may be avoided. Thus, the choice must and can be made prior to conception.

In my view, a decision to engage in sexual intercourse necessarily entails an acceptance of the consequences and must take into account the possibility that another life' may be Created. Our society has come to understand that life, in any form, is most precious and must be protected. We cannot, therefore, allow the life of an innocent foetus to be terminated by abortion.

Moreover, even if I could embrace the position espoused by the majority that nothing more than a question of policy is involved, I could hold no other view. Once the State recognizes, as it does, that an unborn child, or in some instances an unconceived child, has property rights, it is highly irrational to withhold the most valuable of all rights, which is life itself.

Accordingly, the order appealed from should be reversed.

Chief Judge Fuld and Judges Bergan and Gibson concur with Judge Breitel; Judge Jasen concurs in an opinion in which Chief Judge Fuld and Judges Bergan, Breitel and Gibson also concur; Judges Burke and Scilbppi dissent and vote to reverse in separate opinions in each of which the other concurs.

Order affirmed.