An Orthodox View of Abortion: the amicus curiae brief file by the Holy Orthodox Church in Webster v. Reproductive Health Services

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

+ + +

INTEREST OF AMICUS CURIAE

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

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

Legal precepts, particularly those of constitutional proportions, simply cannot be judged in a vacuum. This notion not only predates the Constitution;4 it is at the very heart of our civilization. The foundations of our morality can be found in the dawn & early morning light of the Judeo-Christian tradition, of which the Orthodox Church is a unique custodian. From its inception nearly 2,000 years ago, it has never de-vi-ated from its condemnation of abortion, based on numerous scriptural references & the teaching of the Holy Fathers of the Church. The Church regards the Roe v. Wade decision as a gruesome turn on the road of judicial activism, having resulted in a holocaust which has claimed at least 20,000,000 innocent lives.5

STATEMENT OF THE CASE & STATEMENT OF FACTS

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

SUMMARY OF ARGUMENT

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

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

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

ARGUMENT

In Roe v. Wade, 410 U.S. 113 (1973), & in subsequent cases, this Court has never reached the critical legal & public policy issue, that of when life begins. Id. at 159. However, for constitutional purposes, it is entirely appropriate for this Court to undertake to construe the term “life” as it appears in both the 5th & 14th Amendments.6 In the absence of a judicial determination, such matters have traditionally been com-mitted to the political processes. Unfortunately, the Court has nonetheless proceeded to preclude any le-gislative determination of the question. Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 444 (1983).

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

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

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

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

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

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

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

The Roe Court relied heavily upon the contention that “Christian theology & canon law came to fix the point of animation at 40 days for a male & 80 days for a female, a view that persisted until the 19th cen-tury,” & that “there was otherwise little agreement about the precise time of formation or animation.” 410 U.S. at 134. The Court apparently found that Aristotle’s 3 stage theory of life formed the basis of Chris-tianity’s beliefs & “came to be accepted by early Christian thinkers.” Id. at 133, n.22. The implicit con-clusion is that the ancient Christian Church did not consider abortion in early pregnancy to be the taking of a human life. With all due respect to this Honorable Court, such was simply not the case.

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

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

This is echoed in another didactic writing universally esteemed in the ancient Church, the Epistle of Bar-nabas, from the early 2nd century:

Never do away with an unborn child or destroy it after its birth. Id. at XIX, 5.

The writings of the Fathers of the Church & other authorities further attest to the unanimity with which abortion was condemned. Among the earliest was the philosopher & apologist Athenagoras of Athens, who wrote to the Emperor Marcus Aurelius (c.177) to defend Christians against false charges of murder:

St. John Chrysostom (c.345-407) who in his famous homilies railed against men who secured the abortions of their illegitimate offspring, called their actions “even worse than murder.” Of such men who impelled women to have abortions, he said,

Finally, Canon 91 of the Quinisext Ecumenical Council (691), decreed that people

who furnish drugs for the purpose of procuring abortion, & those who take fetus-killing poisons, they are made subject to the penalty prescribed for murderers.

The same canonical position along with the opinions of individual Church Fathers, were compiled in the Photian Collection, which was adopted as the official ecclesiastical law book of the Orthodox Church in 883.

2. The Early Church Recognized That Life Begins at Conception & Rejected Distinctions Based upon Fetal Development or Viability

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

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

Among the earliest testimonies that fetal development was irrelevant is that of St. Basil the Great, who wrote that

He also condemned suppliers of abortifacients, regardless of the stage of pregnancy:

St. Basil’s brother, St. Gregory of Nyssa (c.335-394), saw the fetus as a complete human being from the time of conception & specifically rejected theories based upon formation or quickening:

There is no question about that which is bred in the uterus, both growing & moving from place to place. It remains, therefore, that we must think that the point of commencement of existence is one & the same for body & soul.14

Even Tertullian of Carthage (c.160-c.230), a prominent Latin ecclesiastical writer who seemed to accept the formed/unformed distinction as a biological matter, dismissed its moral importance:

Though less specific, Holy Scripture also recognizes that an unborn child’s life is sacred & begins no later than conception:

Also noteworthy is St. Luke’s use of the same Greek word, brephos (baby), for both the unborn St. John the Baptist (Luke 1:44) & the newly-born Christ child (Luke 2:12). Even more indicative are those examples, in both Old & New Testaments, where God enters into a direct personal relationship with a specific indi-vidual before birth, by “consecrating,” “appointing,” “calling & setting apart” the unborn child through His grace.17 This testifies to the Bible’s view that the fetus is not only a human being but a person. That this understanding of an unborn person’s receptivity to divine grace extends back to conception is further evidenced by the ancient practice, as formalized in the Church calendar, of celebrating not only the con-ception of Christ (Annunciation, March 25), but that of His mother (Dec. 9) & St. John the Baptist (Sept. 23).

The canon law of the ancient Church, still in effect in the Orthodox Church today, is entirely consistent with the foregoing exposition of theological, patristic & scriptural evidence. The 1st canonical pro-nouncement specifically on abortion was that of the regional Council of Elvira, Spain (c.303), imposing life-long excommunication. In 314-315, the regional Council of Ancyra adopted Canon 21:

Regarding women who become prostitutes & kill their babies & who make it their business to concoct abortives, the former rule barred them for life from communion, & they are left without recourse. But, having found a more philanthropic alternative, we have fixed the penalty at 10 years, in accordance with the fixed degrees.

The reference to prostitutes attests to the Fathers’ recognition that abortion was only resorted to by wo-men in the most desperate social circumstances. 3 centuries into the Christian era, abortion was unthink-able to the broad mass of Christian people; canon law was adopted which lightened the penalty imposed upon those most in need of mercy. More importantly, the “former rule,” imposing life-long excommuni-cation, is Apostolic Canon 66, which pertains to homicide.18 The fact that for centuries the Church treated abortion at any stage of pregnancy as homicide, without regard to fetal development, is indicative of the illusory nature of the formed/unformed distinction.

In addition, the Roe Court’s reliance upon the writings of Augustine of Hippo (354-430) & Thomas Aqui-nas (1225-1274), as indicative of early Christian thought was misplaced.19 While concepts such as “ensoul-ment” or “quickening” gained some currency in certain ecclesiastical circles beginning in the 5th century, this serves only to underscore the danger inherent in drawing broad-based conclusions based upon ex-cerpts of writings from selected theologians. Augustine never laid claim to being infallible, nor did he pre-sume to speak for the entire Church.20 In fact, in the conclusion of his final treatise, he offered his opin-ions humbly to the judgment of the Church:

Let those who think that I am in error consider again & again carefully what is here said, lest per-chance they themselves may be mistaken. And when, by means of those who read my writings, I be-come not only wiser, but even more perfect, I acknowledge God’s favor to me.21

However, there is no doubt that despite their misunderstanding of fetal development, they sought to pro-tect the fetus & considered its destruction homicide. We can, with the benefit of historical & scientific hindsight, attribute the misapplication of a correct impulse to a biological error stemming ultimately from Aristotle. The Roe Court adopted this error as the basis of its analysis of the moral acceptability of abor-tion over the past 2,000 years; but as would be the case with a hypothetical body of jurisprudence based on the Ptolemaic geocentric system or the phlogiston theory of combustion, this Court should not hesitate to look beyond what we now understand to be a factual error, albeit a persistent one.

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

B. Human Life Begins at Conception

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

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

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

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

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

In Roe the Court went to some lengths to demonstrate that most references to “persons” in the Constitu-tion had solely a postnatal connotation. However, this begs the question as to what “person” means in the 14th Amendment. It must also be observed that most constitutional references to persons only dealt with adults, & in the original intent of the document, only white males. However, again, this still does not speak to the 14th Amendment, which obviously was intended to vindicate the rights of black children as well as adults, & has subsequently been applied to protect the rights of women as well as men. There is no basis in history, jurisprudence, or simple logic to justify specially exempting the unborn from the scope of the Amendment.

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

They are humans, live & have their being. They are clearly “persons” within the meaning of the 14th Amendment. Levy v. Louisiana, 361 U.S. 68, 70 (1968).

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

Another critical distinction which the Roe Court ignored was the 14th Amendment’s differentiation of cit-izenship & personhood:

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

As understood by the Framers of the 14th Amendment, citizenship relates to political rights, while per-sonhood deals with the more basic rights inherent in all human beings. See, e.g., Bishop, The Privileges or Immunities Clause of the 14th Amendment, 79 Nw. U. L. Rev. 142, 151-153 (1984). The latter is a much broader classification than the former, encompassing both citizens & non-citizens; all citizens are persons, but the reverse is not true. Even a decision as monstrous as Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857), conceded that slaves were persons under the Constitution, but denied them the privileges of citi-zenship.

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

In addition, this Court had already, some 87 years prior to Roe, recognized corporations as “persons” un-der the 14th Amendment. Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394, 396 (1886). That corporations are not male, female, black, white, pre-natal, nor post-natal, is transparently obvious. There is also no conflict between the recognition of personhood, but simultaneous denial of citizenship, as corporations cannot vote nor hold political office. Thus, while Santa Clara is entirely consistent with the 14th Amendment, Roe is not. The distinctions made in Roe & its progeny are artificial & have no basis in the adjudication of constitutional claims. This is made readily apparent through attempting to reconcile Santa Clara & Roe. Reading them together creates a result which is “hauntingly Orwellian—something can be a person without being human, & can be human without being a person.26 No civilized society can possibly endorse such a conclusion.

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

CONCLUSION

The historic morality which forms the foundation of American constitutional thought is firmly grounded in the Judeo-Christian tradition. That tradition has unambiguously recognized that life begins at concept-tion & that abortion is murder. The notion that abortion on demand is an inherent right which cannot be denied, is of recent origin. Samuel Adams recognized that such innovations should be resisted:

If the liberties of America are ever completely ruined,... it will in all probability be the consequence of a mistaken notion of prudence, which leads men to acquiesce in measures of the most destructive ten-dency for the sake of present ease.27

The “present ease” of abortion on demand does not, & cannot, alter the historical & moral truth that “uni-versal life would proceed according to nature if we would practice continence from the beginning instead of destroying, through immoral & pernicious acts, human beings who are given birth by Divine Provi-dence.”28 The assembled jurisdictions of the Holy Orthodox Church in the United States speak with 1 voice in urging this Court to recognize the sanctity of human life & reverse the decision of the Court of Appeals.

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

2 The Holy Orthodox Church includes all major Orthodox Christian groups in the USA: Albanian, American, Antiochian, Bul-garian, Carpatho-Russian, Greek, Romanian, Russian, Serbian & Ukrainian. Regardless of the jurisdiction, all Orthodox Chris-tians share a unity of faith & tradition extending back almost 2,000 years to the time of Jesus Christ & the Apostles.

3 The Federalist, No. 37 (J. Madison). George Washington echoed this sentiment it would be peculiarly improper to omit, in this 1st official act, my fervent supplications to that Almighty Being, Who rules over the universe, Who presides in the council of nations & Whose providential aids can supply every human defect.... In tendering this homage to the great Author of every public & private good, I assure myself that it expresses your sentiments not less than my own.... No people can be bound to ac-knowledge & adore the invisible Hand, Which conducts the affairs of men, more than the people of the United States.” Wash-ington, 1st Inaugural Address, quoted in, Eliot, American Historical Documents, 1000-1904, at 226 (New York: P.F. Collier & Son Corp., 1938).

4 See, e.g., John Locke, 2nd Treatise on Civil Government, ch. IV, secs. 22 & 23 (New York: Liberal Arts Press, 1952).

5 This brief is filed with the blessings of: The American Carpatho-Russian Orthodox Greek Catholic Diocese: His Grace, Bish-op Nicholas; V. Rev. Frank P. Miloro, Dean of Christ the Saviour Orthodox Theological Seminary; The Anthiochian Orthodox Christian Archdiocese of North America: His Eminence, Most Rev. Metropolitan Philip; Rt. Rev. Antoun, Auxiliary Bishop; V. Rev. Peter E. Gillquist, Chairman of the Council of Coordinators, Antiochian Evangelical Orthodox Mission & member, Worship & Evangelization Committee, National Council of Churches; V. Rev. Jack N. Sparks, Dean of St. Athanasius College; The Greek Orthodox Archdiocese of North & South America: Rt. Rev. Maximos, Bishop of Pittsburgh; Rev. Dr. Stanley S. Ha-rakas, Archbishop Iakovos Professor of Orthodox Theology & Christian Ethics, Holy Cross Greek Orthodox School of Theo-logy; Rev. Dr. Theodore Stylianopoulos, Professor of New Testament & Orthodox Spirituality, Holy Cross Greek Orthodox School of Theology & member of the Central Committee of the World Council of Churches; Rev. Fr. George A. Alexson, Sec-retary-Treasurer of the Greater Washington Orthodox Clergy Council & Pastor, St. Katherine’s Greek Orthodox Church of Northern VA; The Orthodox Church in America: His Beatitude Theodosius, Archbishop of Washington, Metropolitan of All America & Canada; Rt. Rev. Peter, Bishop of New York & New Jersey; Rt. Rev. Dimitri, Bishop of Dallas & the South; Rt. Rev. Herman, Bishop of Philadelphia & Eastern PA; Rt. Rev. Gregory, Bishop of Sitka & Alaska; Rt. Rev. Nathaniel, Bishop of Detroit & the Romanian Episcopate; Rt. Rev. Job, Bishop of Hartford & New England; Rt. Rev. Tikhon, Bishop of San Francisco; Rt. Rev. Mark, Acting Bishop of Chicago & the Midwest; V. Rev. Leonid Kishkovsky, Secretary of External & Ecumenical Affairs & President-Elect of the National Council of Churches; V. Rev. John Meyendorff, Dean of St. Vladimir's Orthodox Theological Seminary & Professor of Church History & Patristics; V. Rev. Daniel K. Donlick, Dean of St. Tikhon’s Orthodox Theological Seminary; V. Rev. Joseph P. Kreta, Dean of St. Herman’s Orthodox Theological Seminary; V. Rev. Thomas Hopko, Associate Professor of Dogmatic Theology, St. Vladimir’s Orthodox Theological Seminary & member, Faith & Order Commission of the World Council of Churches; V. Rev. John Kowalczyk, Adjunct Professor of Religious Education & the Christian Family, St. Tikhon’s Orthodox Theological Seminary & Pro-Life Coordinator of the Diocese of Eastern Pen-nsylvania; V. Rev. Vladimir Borichevsky, Professor of Moral & Pastoral Theology, St. Tikhon’s Orthodox Theological Sem-inary; Rev. Fr. Alexander F.C. Webster, Senior Research Associate, Ethics & Public Policy Center, Washington, D.C. (for iden-tification only); Holy Transfiguration Orthodox Monastery, Elwood City, PA; Holy Dormition Orthodox Monastery, Rives Eaton, MI; The Russian Orthodox Church in Exile: His Eminence, Most Rev. Vitaly, Metropolitan of New York & Eastern America, 1st Hierarch of the Russian Orthodox Church in Exile; Most Rev. Anthony, Archbishop of Los Angeles & Southern California; Most Rev. Antony, Archbishop of San Francisco & Western America; Most Rev. Laurus, Archbishop of Syracuse & Holy Trinity Monastery, Rector of Holy Trinity Orthodox Seminary & Abbot of Holy Trinity Orthodox Monastery, Jordanville, NY; Rt. Rev. Alypy, Bishop of Chicago, Detroit & Midwest America; Rt. Rev. Hilarion, Bishop of Manhattan; Rt. Rev. Daniel, Bishop of Erie & Protector of the Old Rite; Rev. Fr. Alexey Young, Editor of Orthodox America; Rev. Fr. Gregory Williams, Editor of Living Orthodoxy; The Serbian Orthodox Church in the US & Canada: His Grace, Bishop Christopher; The Ukrain-ian Orthodox Church of America & Canada: His Grace, Bishop Vsevolod.

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

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

8 Also known as The Teaching of the 12 Apostles, it is a codification of the oral tradition handed down by the Apostles to their successors. Cf. II Thessalonians 2:15. It was called “scripture” by Clement of Alexandria (+c.215) & was recommended for catechists by St. Athanasius (c.297-373).

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

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

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

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

18 Apostolic Canon 66 permitted penitents to return to communion only on their deathbeds. As the name suggests, an Apostolic Canon is a teaching received directly from the 12 Apostles.

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

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

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

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

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

An Orthodox View of Abortion

The Amicus Curiae Submitted to the Supreme Court