(An Open Letter to the American Center for Law and Justice)
Saints for Life:
I am responding to the fundraising letter you emailed me this Good Friday saying you have two abortion cases before SCOTUS and six more in the wings.
Easter Sunday is the 14th Anniversary of when Congress said what Roe said must be said for legal abortion to “of course” be outlawed by all the states. (18 U.S.C. 1841(d)) Yet prolifers have not, in these 14 years, gotten behind a case that forces courts to squarely address that new evidence, which was only the capstone of much more overwhelming and unrefuted legally recognizable evidence. Will you be the exception?
Will any of your arguments before SCOTUS defend, not just particular restrictions of some abortions (viz “you can’t sell baby parts” or “you can’t kill babies with audible heartbeats”) leaving the legality of most abortions unchallenged – but will you also defend the outlawing of every abortion?
Now that all 5 categories of court-recognized finders of facts have unanimously “established” what Roe’s “collapse” clause said must be “established” for legal abortion to “of course” be outlawed because the 14th Amendment requires states to protect life?
(Protectable life beginning at conception/fertilization was established also by states in similar Unborn Victims of Violence laws, juries in abortion prevention trials which were allowed to weigh the elements of the Necessity Defense, Expert Witnesses in those trials which were never refuted, and individual judges who squarely addressed the evidence as opposed to state supreme courts which said SCOTUS did even though SCOTUS never did.)
Especially since not one American legal authority has ever “found” that legally protectable “life begins” any LATER than fertilization?
And since SCOTUS, though declining the handful of cases which required the question to be squarely addressed, (beginning with Rhode Island’s challenge just weeks after Roe) has never said Roe’s “collapse” clause no longer states the obvious?
It is impossible for SCOTUS to be more sure of any fact than a fact established unanimously by every category of court-recognized finders of fact. If SCOTUS still is still “unable to speculate” about “when life begins”, after the unanimous evidence of all American legal authorities who have taken a position, it is impossible for SCOTUS to know anything.
It is impossible for SCOTUS to squarely address this legally recognizable evidence without ruling that abortion is murder – and genocide.
It is impossible for SCOTUS to rule that murder – genocide – is legal without undermining the rationale for its own existence. The only purpose of laws and courts is to restrain crime. When laws and courts will not restrain the greatest, most obvious of crimes, confidence is weakened among voters and taxpayers that they will restrain any other.
I believe if you pick up this Sword, of these frankly irrefutable facts which SCOTUS cannot possibly squarely address without agreeing that legal abortion must end, and strike abortion in the heart, you will find donors more enthusiastic.
This letter will probably be published at ipatriot.com. Should you be willing to respond to me, I will be glad to publish your response too.
I do not find, on your website, any other way to submit this information to you than this letter, nor do I find on your website any other indication of your interest in such information, to encourage me to hope for your response to my letter.
From other prolifers, individuals and organizations, I experience initial tentative agreement but then silence.
Having this answer to the prayers of prolifers, yet finding prolifers uninterested in it, has materialized before me into one of those Mountains which only Jesus says will, finally, jump into the sea, if my faith is at least enough to not give up.
I do acknowledge that it takes opening one’s eyes to see that the little boy is right – the emperor really has no clothes; but it takes lots of study to really be sure it is not just a mirage, and it takes courage to publicly agree with the little boy that the whole crowd is fooling itself, a suggestion which the crowd finds quite offensive.
Yet like the little boy, dreading opening my mouth because I am unqualified to speak, Jeremiah 1:6, but dare I remain silent? Jeremiah 20:9. So with this letter, I send my prayer, that this time, you will answer my prayer, and that I will have the intelligence and courage to receive it.
A resolution which any lawmaker of any legislature could merely introduce, to start the snowball down the hill:
Model Simple Resolution
Whereas, Roe v. Wade invites fact finders to “establish” “when life begins”. Had this been established as a matter of law, as several state supreme courts claim in abortion prevention trials, the world’s experts on American law would not have said “We…are…not in a position to speculate [about] when life begins [since doctors and preachers, who know more about this than we do] are unable to arrive at any consensus.” Roe v. Wade 410 US 113, 159. SCOTUS doesn’t think the top experts on American law are doctors and preachers! Nor would SCOTUS have said “IF this suggestion of personhood is established….”, id. at 156, painting a future scenario in which “personhood” might be “established” by some authority besides itself which is competent enough to “establish” what SCOTUS cannot.
Whereas, SCOTUS must accept facts “found” [established] in federal law [by Congress] that are not obviously irrational. “..the existence of facts supporting the legislative judgment is to be presumed…not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators….the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist. …But by their very nature such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it.” U.S. v. Carolene Products, 304 U.S. 144, 152 (1938)
Whereas, Congress established in 2004 that: “ ‘unborn child’ means a child in utero, and the term ‘child in utero’ or ‘child, who is in utero’ means a member of the species Homo Sapiens, at any stage of development, who is carried in the womb”, 18 U.S.C. § 1841(d). This fact is not undermined by clause (c) which does not “permit [authorize] the prosecution of any person for…an abortion for which the consent of the pregnant woman…has been obtained….” Failure to outlaw a harm in a particular situation does not prevent the outlawing of it later, and 18 U.S.C. § 1841(c) has no power to prevent states from criminalizing abortion as the 14th Amendment requires once the humanity of the unborn is established by 18 U.S.C. § 1841(d). And
Whereas, all precedent including Roe agrees that all humans are persons. Roe v. Wade 410 U.S. 113 (1973) equates the time an unborn child becomes “recognizably human” with the time the child becomes a “person”, to wit: “These disciplines variously approached the question in terms of the point at which the embryo or fetus became ‘formed’ or recognizably human, or in terms of when a ‘person’ came into being, that is, infused with a ‘soul’ or ‘animated.’ ” (See also United States v. Palme, 14- 17 U.S. 607, (1818), “The words ‘any person or persons,’ are broad enough to comprehend every human being.” Wong Wing v. United States, 163 U.S.228, 242 (1896), “The term ‘person’ is broad enough to include any and every human being within the jurisdiction of the republic…This has been decided so often that the point does not require argument.” Steinberg v. Brown 321 F. Supp. 741 (N.D. Ohio, 1970) “a new life comes into being with the union of human egg and sperm cells,” Id at 746, and “[o]nce human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state a duty of safeguarding it,” Id 746-47. And
Whereas, Roe v. Wade spells out the conditions for Roe’s own “collapse”, to wit: “[Texas argues] that the ‘fetus’ is a person. If this suggestion of personhood is established, the case [for legal abortion], of course, collapses, for the right to life would then be guaranteed specifically by the [14th] Amendment…“ And
Whereas, not only Congress, but all legal authorities, and all five categories of court-recognized fact finders – juries1, expert witnesses2, individual judges3, and state legislatures4 as well as Congress – to the extent they have taken a position on the subject, find unanimously that all unborn babies are humans/persons from fertilization. No American legal authority has ever said any unborn baby of a human is not a human/person, or that protectable “life begins” any later than fertilization, including Roe which said “we are not in a position to speculate”, which is the closest SCOTUS has ever come to ruling on the humanity/personhood of the unborn, nor has SCOTUS ever reversed its position in Roe that if the fact is “established” that “when life begins” is at fertilization, then “of course” the 14th Amendment requires states to outlaw abortion. And
Whereas, Planned Parenthood v. Casey, 505 U.S. 833, 945, 954 (1992) did not replace Roe’s constitutional basis for legal abortion – inability to tell “when life begins” – with Casey’s new basis: how much moms had gotten used to killing their babies. Casey never said “when life begins” no longer matters, much less that even after everyone knows aborticide is murder, women have gotten so used to it that their “right to murder” must continue! In fact, Casey removed constitutional protection from abortion. “We have since rejected Roe’ s holding that regulations of abortion must be narrowly tailored to serve a compelling state interest, see Planned Parenthood v. Casey, 505 U.S., at 876,….-and thus, by logical implication, Roe’ s holding that the right to abort an unborn child is a ‘fundamental right.’ ” Justice Scalia’s dissent in Lawrence v. Texas 539 U.S. 558, 595, 123 S. Ct. 2472, 2493 (U.S., 2003). Roe’s alleged inability to know babies of humans are humans was described as an “outer shell” of constitutionality. “The joint opinion…retains the outer shell of Roe v. Wade…but beats a wholesale retreat from the substance of that case…. Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality.” Planned Parenthood v. Casey, 505 U.S. 833, 945, 954 (1992) (Concurrence/dissent of Rehnquist, White, Scalia, Thomas) Once Roe’s “outer shell” has “collapsed”, smashed by legally recognized certainty that the unborn are human, that “reliance interests” sophistry can’t stand all alone. Once aborticide is “established” as genocide, “women’s schedules” are exposed as a barbarically trivial excuse for genocide. And
Whereas, Webster v. Reproductive Health Services (492 U.S. 490), 1989 did not say personhood laws have no power to topple Roe, but only “It will be time enough for federal courts to address the meaning of the [Personhood law] should it be applied to restrict the activities of [the abortionists] in some concrete way.” Id at 506. In fact, clear state penalties for abortion would trigger SCOTUS review of Roe: “there will be time enough to reexamine Roe, and to do so carefully… When the constitutional invalidity of a State’s abortion statute actually turns upon the constitutional validity of Roe”, Concurrence by O’Conner, Id. at 526. AND
Whereas, No subsequent case, nor any future case, nor any philosophical argument outside the courtroom, has changed or can change how obvious it is that the knowledge that aborticide is in fact murder renders legal aborticide profoundly criminal and unconstitutional. The 14th Amendment “equal protection of the laws” is for all who are in fact humans/persons. Had it been only for those who are legally recognized as human, every deprivation of fundamental rights by any state law, including slavery of illegal immigrants, would automatically be “constitutional” so long as the law questions whether its victims are “persons in the whole sense”. It is just as obvious today as when Roe’s “collapse” clause began with “of course”, that SCOTUS can’t decide who lives and dies as a question so exclusively of law as to render irrelevant the now “established” fact that aborticide is murder. Even if Roe had not said it, it would be so. There can be no reason for courts or laws to exist, if not to punish crimes. No act merits the designation “crime”, if murder doesn’t. When the evidence is clear of mass murder, it can’t be nullified by any court or law without chopping away the very reason for courts and laws. And
Whereas, the authority of U.S. law is superior to the authority of the U.S. Supreme Court, in the sense that up until such time as courts declare laws unconstitutional, courts must conform their rulings to them. No court has declared 18 U.S.C. § 1841 or the many similar state laws unconstitutional, in the course of dozens of challenges. To do so would require the Court to positively affirm that human life does not begin until birth, a position which no legal authority has ever taken, in contrast to a number of America’s highest legal authorities which have taken the position that human life does begin at conception (See Missouri #1.205, R.S.Mo.1986, Louisiana LSA-R.S. 40:1299,35.0, Nebraska 28-325. R.R.S. 1943, besides various proclamations of Presidents and Governors). And
Whereas, “(I)f the law recognizes that a fetus is a legal person from the moment of conception……then the law must recognize and protect the rights of that person on a legal basis with the rights of the adult pregnant woman. If our laws recognize that, then there can be no right to choose, because, logically, terminating a pregnancy even in its earliest stages would be killing a fully legal person.” (Mr. Nadler, opposing the UNBORN VICTIMS OF VIOLENCE ACT OF 2003 150 Cong. Rec. H637-05, *H640.) [For the record with analysis, see www.Saltshaker.US/SLIC/CongressionalRecord.htm]. And
Whereas, [the consequence of 18 U.S.C. § 1841 is that] “….unborn children whether viable or not, will be considered as human beings, and therefore, whole as persons as victims of crime…. [Laci’s Law’s] extension of legal personhood to a[n] [unborn child] is entirely unprecedented in the history of federal law… .[The Court] could be forced to do what it has avoided for over thirty years: determine the ultimate value of the life interest and decide when that life begins.” (Amanda Bruchs, Clash of Competing Interests: Can the Unborn Victims of Violence Act and Over Thirty Years of Settled Abortion Law Co-Exist Peacefully?, 55 Syracuse L. Rev. 133 (2004). See also: Wilmering, R.R., Note, Federalism, The Commerce Clause 80 Tns . L_J. 1989 (2005); Speizer, E., Recent Developments in Reproduction Health Law.…41 Cal. W.L. Rev. 507 (2005); Kole, T. and Kadetsky, L., Recent Developments, 39 Harvard Journal Legislation 215 (2002))]. And
Whereas, there is no conflict between 18 U.S.C. § 1841 and 18 U.S.C. §248 (FACE, Freedom of Access to Clinic Entrances, 1992). 18 U.S.C. §248 merely prevents individuals from saving the lives of the unborn; it asserts no jurisdiction over states, to prevent states from protecting the unborn in compliance with 18 U.S.C. § 1841;
Therefore, be it resolved, that:
Legal Abortion technically and legally “collapsed” on April Fool’s Day, 2004. 18 U.S.C. § 1841(d) precisely meets the conditions laid out in Roe’s “collapse” clause; AND
This state has no further legal obligation to refrain from criminalizing abortion, or to support or protect abortion in any way; AND
After 18. U.S.C. §1841 it is impossible to treat ex-utero and intra-utero children differently without violating the 14th Amendment rights of one or the other: therefore this state is legally obligated to protect unborn children with the same criminal laws that protect born children; AND
Criminal laws against abortion by this state, or a Personhood Amendment in this state defining the unborn as “persons”, or amending this state’s Necessity Defense law to clarify that abortion is a “harm” to which it applies and “imminence” means “nearness in time to the closing of the window of opportunity to prevent harm”, are not bold, legally dubious attempts by one state to rewrite the legal landscape for the entire nation, but will merely bring state law into conformity with federal law, including the requirements of Roe v. Wade itself; AND
Any judge or court which attempts to block this state’s effort to bring its laws into conformity with these federal laws will, in so doing, violate Roe v. Wade, interfere with this state’s compliance with federal law, and be an accessory to genocide according to federal law; AND
Should any state judge interfere with this state’s obligation to obey the 14th Amendment obligation to protect its unborn citizens from abortion, this legislature will consider such exercise of the legislative function, in order to perpetuate genocide, through an unconstitutional ruling, to be exceeding the judicial powers given by the Iowa Constitution, which is Malfeasance in Office, a ground of impeachment; AND
Should any federal judge so interfere, this legislature urges its congressional delegation to pursue disciplinary action such as that outlined in “Bringing the Courts Back Under the Constitution”. (https://newt.org/ wp-content/uploads/2013/04/Courts.pdf)
For 40 pages of detail, see www.saltshaker.us/SLIC/CourtProofingStateLawAgainstAbortion.pdf
1 Every judge addresses juries as “finders of fact”. Every judge tells every jury some version of “If the question is one of fact, it should be decided by the jury at trial.” But as if to reach the favored result no matter the cost to Due Process, even when the only contested issue of aborticide prevention trials (mostly sitting in front of abortionist doors) is whether the preborn are human beings, and that is the defendant’s only defense, courts haven’t allowed juries to even know the existence of the defense, much less decide it, ever since courts discovered that when juries are shown this fact question, aborticide loses.
“After the court ruled that it would allow the [Necessity] Defense to go to the jury, the Women for Women Clinic dropped the prosecution. If the defense is permitted, evidence is introduced that life begins at conception. This evidence is rarely contradicted by the prosecution, which is merely proving the elements of criminal trespass. Rather than risk such a precedent, many clinics prefer to dismiss. In fact, defense counsel have admitted that their intent is to bring the abortion issue back before the United States Supreme Court to consider the very question of when life begins, an issue on which the Court refused to rule in Roe… (“Necessity as a Defense to a Charge of Criminal Trespass in an Abortion Clinic”, 48 U.Cin.L.Rev. 501 (1979), in a footnote on page 502. The Cincinnati Law Review footnote analyzes the case of Ohio v. Rinear, No. 78999CRB-3706 (Mun. Ct. Hamilton County, Ohio, dismissed May 2, 1978)
“Suppression of the evidence ought always to be taken for the strongest evidence” is the principle that won Freedom of the Press in the 1735 trial of Peter Zenger. Thus, suppression of the evidence of “when life begins” tells us that to the scandalously limited extent judges have allowed juries to weigh this fact question, juries have “established” unanimously that fertilization is “when life begins”.
2 It was typical of aborticide prevention trials to bring in a doctor to testify that fully distinct human life begins from fertilization. “If the [Necessity] defense is permitted evidence [from doctors or scientists] is introduced [by the prolife defendants] that life begins at conception. This evidence is rarely contradicted by the prosecution….” Necessity as a Defense to a Charge of Criminal Trespass in an Abortion Clinic”, 48 U.Cin.L.Rev. 501 (1979), in a footnote on page 502
A striking example of such a case is when the world’s top genetic experts flew in from as far as France to testify before Sedgwick County Judge Paul Clark. Judge Clark said their DNA evidence established that life begins at fertilization, so killing life before birth is a great harm: “I will find Mrs. Tilson’s evidence proffered through witnesses Lejeune, Hilgers, McMillan and Rue relevant to the issue here. The entire evidence of her experts is admitted. The evidence proves that the medical and scientific communities dealing with the subject matter on a daily basis are of opinion that life in homo sapiens begins at conception; and harm is the result of termination of life under most circumstances. That opinion—as a proposition based on intuition in earlier years—has always been foundation for the public policy in Kansas” (State vs. Harris, Supra; Joy vs. Brown, Supra). “Memorandum of Opinion Following Bench Trial” p. 22.
3 For example, Judge Clark, see footnote 2
4 “At least 38 states have enacted fetal-homicide statutes, and 28 of those statutes protect life from conception.” Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012) (Source: the Nat. Conference of State Legislatures, Fetal Homicide Laws.)
Several states explicitly affirm that all preborn babies are humans/persons. 28 protect as many preborn babies as SCOTUS will let them, as seriously as they protect adults, leaving obsolete Roe’s claim that babies are protected less in law. Most of the state preborn victims of violence laws survived constitutional challenges brought by murderers. The issue was whether Roe nullified them. Apparently no one asked if their findings nullified the premise of Roe.
The opinions expressed in this commentary are solely those of the author and are not not necessarily either shared or endorsed by iPatriot.com.