760 / THE HUMAN PREDICAMENT: FINDING A WAY OUT
abortion on the grounds that it will encourage promiscu- is denied and the mother, contrary to her wishes, is forced
ity— 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 unimpor-
tant. 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 continu-
ous 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
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.

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 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,
400 chemicals, and OSHA and NIOSH were moving to
change them to permanent standards. Permanent stan-
dards 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, 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.
CHANGING AMERICAN INSTITUTIONS / 837
/ 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 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 repro-
duction.
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: Con-
sequence; 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 oxKex ticvvn^s \ae\rvg, ec^ua\. TYve \av* co\iYd
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 resource-
consumption patterns— providing they are not denied
equal protection.
Individual rights. Individual rights must be bal-
anced against the power of the government to control
human reproduction. Some people—respected legisla-
tors, 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 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 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 mea-
sures that have been enacted. From a legal standpoint,
the First Amendment argument against family-size reg-
ulation is devoid of merit.
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 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.

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. Consti-
tution 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
CHANGING AMERICAN INSTITUTIONS / 839
the meaning of the Fourteenth Amendment. Thus, under
the Constitution, abortion is apparently not unlawful,
although infanticide obviously is. This is a very impor-
tant 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,

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 Anglo-
French 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 govern-
ment stupidity and the momentum of technological
circuses.
Government Planning
The fragmentation of responsibility amonfi fiovern-
iqent 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 Depart-
ment of Housing and Urban Development, the Depart-
ment 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 indi-
cators heavy. Resource and environmental matters ac-
cordingly 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-environ-
ment situation may be found in the booklArk 7/|"2 We
'""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 govern-
ment of divided powers.
1I2
Pirages and Ehrlich.
CHANGING AMERICAN INSTITUTIONS// 857
/-•*\
}
discuss only one such reform here: the institutionaliza-
tion 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 down-
ward spiral of deepening social and environmental dis-
ruptions 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, spon-
sored 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: Califor-
nia I is a "current-trends-continue" projection; Califor-
nia 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 en-
vironmental 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.